TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 23, 2013
RE: Rule 26, N.D.R.App.P., Computing and Extending Time; Rule 6, N.D.R.Civ.P., Computing and Extending Time; Time for Motion Papers ; Rule 45, N.D.R.Crim.P., Computing and Extending Time
Chief Deputy Clerk Petra Hulm has brought to light an issue regarding the "three day rule." Her memo is attached. Rule 26, Civil Rule 6 and Criminal Rule 45 were all recently amended to "clarify" rule text granting the three day extension. However, none of them contain any language explaining how this extension should be calculated. Ms. Hulm points out in her memo that, under the federal approach on which these rules are based, the final day of a period must be calculated before adding the three days. As she explains, this can create quite a different result than if three days are simply added to the period.
The federal rule notes contain detailed language explaining the appropriate counting method: ". . . a party that is required or permitted to act within a prescribed period should first calculate that period, without reference to the 3-day rule provided by Rule 26(c), but with reference to the other time computation provisions of the Appellate Rules. After the party has identified the date on which the prescribed period would expire but for the operation of Rule 26(c), the party should add 3 calendar days. The party must act by the third day of the extension, unless that day is a Saturday, Sunday, or legal holiday, in which case the party must act by the next day that is not a Saturday, Sunday, or legal holiday."
The existing text of the Rule 26 explanatory note provides no insight on the method of counting the three day extension. Proposed amendments to the explanatory note based on the federal explanatory language are attached. In order to assure consistency in interpreting the time rules, proposed amendments to the explanatory notes of Rule 6 and Criminal Rule 45 including the revised explanatory text are also attached.
In addition, staff was recently called by an attorney who pointed out an inconsistency between the text of the rule and the explanatory note. Specifically, the attorney said that explanatory note text suggested that the longstanding restriction on extending time under the rules listed in Rule 6(b)(2) had been eliminated. Proposed amendments to correct the explanatory note language to remove this inconsistency are attached.