RULE 45. COMPUTING AND EXTENDING TIME
1 (a) Computing Time. The following rules apply in computing any time
2 period specified in these rules, in any local rule or court order, or in any statute that
3 does not specify a method of computing time:
4 (1) Period Stated in Days or a Longer Unit. When the period is stated in
5 days or a longer unit of time:
6 (A) exclude the day of the event that triggers the period;
7 (B) count every day, including intermediate Saturdays, Sundays and legal
8 holidays; and
9 (C) include the last day of the period, but if the last day is a Saturday,
10 Sunday, or legal holiday the period continues to run until the end of the next day
11 that is not a Saturday, Sunday, or legal holiday.
12 (2) Period Stated in Hours. When the period is stated in hours:
13 (A) begin counting immediately on the occurrence of the event that triggers
14 the period;
15 (B) count every hour, including hours during intermediate Saturdays,
16 Sundays, and legal holidays; and
17 (C) if the period would end on a Saturday, Sunday, or legal holiday, the
18 period continues to run until the same time on the next day that is not a Saturday,
19 Sunday, or legal holiday.
20 (3) Inaccessibility of the Clerk's Office. Unless the court orders otherwise, if the
21 clerk's office is inaccessible:
22 (A) on the last day for filing under Rule 45(a)(1), then the time for filing is
23 extended to the first accessible day that is not a Saturday, Sunday, or legal holiday;
25 (B) during the last hour for filing under Rule 45(a)(2), then the time for
26 filing is extended to the same time on the first accessible day that is not a Saturday,
27 Sunday, or legal holiday.
28 (4) "Last Day" Defined. Unless a different time is set by a statute, local rule,
29 or court order, the last day ends:
30 (A) for electronic filing, at midnight in the court's time zone; and
31 (B) for filing by other means, when the clerk's office is scheduled to close.
32 (5) "Next Day" Defined. The "next day" is determined by continuing to
33 count forward when the period is measured after an event and backward when
34 measured before an event.
35 (6) "Legal Holiday" Defined. As used in this rule, "legal holiday" means:
36 (A) a
specific day set aside as a holiday under N.D.C.C.
§ 1-03-01 ch. 1-03;
38 (B) any day declared a public holiday by the President of the United States
39 or the Governor of North Dakota.
40 (b) Extending Time.
41 (1) In General. When an act must or may be done within a specified time, the court
42 on its own may extend the time, or for good cause may do so on a party's motion
44 (A) before the originally prescribed period or previously extended time
45 expires; or
46 (B) after the time expires if the party failed to act because of excusable
48 (2) Exceptions. The court may not extend the time for taking any action
49 under Rules 35 and 37, except as stated in those rules.
50 (c) Additional Time After Service Made Electronically, by Mail or
51 Commercial Carrier. Whenever a party must or may act within a prescribed period
52 after service and service is made electronically, by mail or by third-party
53 commercial carrier, three days are added after the prescribed period would
54 otherwise expire under Rule 45(a). For purposes of computation of time, any
55 document electronically served must be treated as if it were mailed on the date of
57 EXPLANATORY NOTE
58 Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1,
59 1999; March 1, 2001; March 1, 2006; March 1, 2007; March 1,
60 2011;______________. The explanatory note was amended, effective March 1,
62 Rule 45 is an adaptation of Fed.R.Crim.P. 45 with certain modifications. The rule
63 is similar to N.D.R.Civ.P. 6, which also deals with computing time.
64 Rule 45 was amended, effective March 1, 2006, in response to the
65 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
66 language and organization of the rule were changed to make the rule more easily
67 understood and to make style and terminology consistent throughout the rules.
68 A subdivision referring to terms of court was deleted, effective March 1,
69 2006. The district courts of North Dakota are in continuous session and terms of
70 court are not a factor in computing or extending time. At the same time, and
71 consistent with the federal rule, a subdivision dealing with motions and affidavits
72 was transferred to Rule 47.
73 Subdivision (a) was amended, effective March 1, 2006, to include a
74 paragraph defining the term "legal holiday". The definition was amended,
75 effective____________, to reference the whole of N.D.C.C. ch. 1-03.
76 Subdivision (a) was amended, effective March 1, 2011, to simplify and
77 clarify the provisions that describe how deadlines are computed. Under the
78 previous rule, intermediate weekends and holidays were omitted when computing
79 short periods but included when computing longer periods. Under the amended
80 rule, intermediate weekends and holidays are counted regardless of the length of
81 the specified period.
82 Subdivision (b) was amended, effective March 1, 2007, to delete Rules 29,
83 33 and 34 from the exceptions paragraph.
84 Subdivision(c) is an adaptation of N.D.R.Civ.P. 6(e). Under this
85 subdivision, a party that is required or permitted to act within a prescribed period
86 should first calculate that period, without reference to the 3-day extension, but
87 applying the other time computation provisions of these rules. After the party has
88 identified the date on which the prescribed period would expire but for the
89 operation of subdivision (c), the party should add 3 calendar days. The party must
90 act by the third day of the extension, unless that day is a Saturday, Sunday, or legal
91 holiday, in which case the party must act by the next day that is not a Saturday,
92 Sunday, or legal holiday.
93 Subdivision (c) was amended, effective March 1, 1999, to make the
94 three-day extension for service by mail applicable when service is via commercial
95 carrier. The proof of service must contain the date of mailing or deposit with the
96 commercial carrier as required by Rule 49(e) and N.D.R.Civ.P. 4(k) and 5(f).
97 Subdivision (c) was amended, effective March 1, 2011, to make the three-day
98 extension applicable when service is made electronically.
99 Subdivisions (a) and(c) were amended, effective January 1, 1995, to clarify
100 time computations when making service by facsimile transmission.
101 SOURCES: Joint Procedure Committee Minutes of ______________; April
102 25-26, 2013, pages 26-27; April 29-30, 2010, pages 24-25; April 27-28, 2006,
103 pages 6-7; January 26, 2006, page 11; January 27-28, 2005, page 37; January
104 27-28, 2000, pages 16-17; January 29-30, 1998, page 20; April 28-29, 1994, pages
105 15-16; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and
106 20; April 29-30, 1993, pages 20-22; April 20, 1989, page 4; December 3, 1987,
107 page 15; June 22, 1984, page 31; December 11-15, 1972, pages 48-50; September
108 17-19, 1970, page 10; March 12-14, 1970, pages 16-18; Fed.R.Crim.P. 45.
109 STATUTES AFFECTED:
110 SUPERSEDED INSOFAR AS CRIMINAL PROCESS: N.D.C.C. §
112 CONSIDERED: N.D.C.C. ch. 1-03,
1-01-33 , 1-03-01(2-14).
113 CROSS REFERENCE: N.D.R.Crim.P. 29 (Motion for a Judgment of
114 Acquittal); N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 34 (Arresting
115 Judgment); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence);
116 N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken);
117 N.D.R.Crim.P. 47 (Motions); N.D.R.Civ.P. 4 (Persons Subject to
118 Jurisdiction--Process--Service); N.D.R.Civ.P. 5 (Service and Filing of Pleadings
119 and Other Papers); N.D.R.Civ.P. 6 (Time); N.D.R.App.P. 26 (Computing and
120 Extending Time).