RULE 26. COMPUTING AND EXTENDING TIME
1 (a) Computing Time. The following rules apply in computing any period of
2 time specified in these rules or in any local rule, 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,
21 if the clerk's office is inaccessible:
22 (A) on the last day for filing under Rule 26(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 26(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;
31 (B) for filing by mail or third-party commercial carrier, at the latest time for
32 the method chosen for delivery to the post office or third-party commercial carrier;
34 (C) for filing by other means, when the clerk's office is scheduled to close.
35 (5) "Next Day" Defined. The "next day" is determined by continuing to
36 count forward when the period is measured after an event and backward when
37 measured before an event.
As used in this rule, "legal holiday" means a day specified as a holiday
in N.D.C.C. §§ 1-03-01. "Legal Holiday" Defined. As used in this rule, "legal
40 holiday" means a day set aside as a holiday under N.D.C.C. §§§§ 1-03-01, 1-03-02
41 and 1-03-02.1.
42 (b) Extending Time. For good cause, the court may extend the time
43 prescribed by these rules or by its order to perform any act, or may permit an act to
44 be done after that time expires. The court may not extend the time to file a notice
45 of appeal, except as authorized by law.
46 (c) Additional Time after Service by Mail or Third-Party Commercial
47 Carrier. When a party may or must act within a specified time after
48 served, three days must be added after the period would otherwise expire, unless
49 the document is delivered on the date of service stated in the proof of service. For
50 purposes of this rule, a document that is served electronically is
not treated as
51 delivered on the date of service stated in the proof of service.
52 EXPLANATORY NOTE
53 Rule 26 was amended, effective January 1, 1988; March 1, 1999; March 1,
54 2001; March 1, 2003; March 1, 2008; March 1, 2011; October 1,
55 2014;____________. The explanatory note was amended, effective March 1, 2014.
56 Subdivision (a) was amended, effective March 1, 2011, to simplify and
57 clarify the provisions that describe how deadlines are computed. Under the
58 previous rule, intermediate weekends and holidays were omitted when computing
59 short periods but included when computing longer periods. Under the amended
60 rule, intermediate weekends and holidays are counted regardless of the length of
61 the specified period.
62 Paragraph (a)(6) was amended, effective________________, to clarify the
63 definition of "legal holiday".
64 Under subdivision (b), amended, effective March 1, 2003, any request for
65 an extension of time should be made within the time originally prescribed or
66 within an extension previously granted.
67 Subdivision (c) was amended, effective March 1, 2008, to clarify that,
68 unless a document is delivered on the date of service as stated in the proof of
69 service, three days are added to the prescribed period.
70 Subdivision (c) was amended, effective March 1, 2011, to clarify how to
71 count the three-day extension for service by mail or commercial carrier. Under the
72 amendment, a party that is required or permitted to act within a prescribed period
73 should first calculate that period, without reference to the 3-day extension, but
74 applying the other time computation provisions of these rules. After the party has
75 identified the date on which the prescribed period would expire but for the
76 operation of subdivision (c), the party should add 3 calendar days. The party must
77 act by the third day of the extension, unless that day is a Saturday, Sunday, or legal
78 holiday, in which case the party must act by the next day that is not a Saturday,
79 Sunday, or legal holiday.
80 Subdivision (c) was amended, effective ______________, to remove
81 service by electronic means from the modes of service that allow 3 added days to
82 act after being served. Electronic service after business hours, or just before or
83 during a weekend or holiday, may result in a practical reduction in the time
84 available to respond. Extensions of time may be warranted to prevent prejudice.
85 Rule 26 was amended, effective March 1, 2003, in response to the
86 December 1, 1998, amendments to Fed.R.App.P. 26. The language and
87 organization of the rule were changed to make the rule more easily understood and
88 to make style and terminology consistent throughout the rules.
89 Rule 26 was amended, effective October 1, 2014, to replace "paper" with
91 SOURCES: Joint Procedure Committee Minutes of April 27, 2017, pages 5-
92 7; January 26-27, 2017, pages 28-29; April 25-26, 2013, pages 26-27; April 29-30,
93 2010, page 20; January 25, 2007, pages 17-19; September 27-28, 2001, pages 4-5;
94 January 27-28, 2000, pages 16-17; January 29-30, 1998, page 21; February 19-20,
95 1987, page 7; September 18-19, 1986, page 15; May 25-26, 1978, pages 11-12.
96 Fed.R.App.P. 26.
97 STATUTES AFFECTED:
98 CONSIDERED: N.D.C.C. ch. 1-03.
99 CROSS REFERENCE: N.D.R.App.P. 25 (Filing and Service); N.D. Sup.
100 Ct. Admin. Order 14 (Electronic Filing Pilot Project).