RULE 26. COMPUTING AND EXTENDING TIME

Effective Date: 10/1/2018

(a) Computing Time. The following rules apply in computing any period of time specified in these rules or in any local rule, court order, or in any statute that does not specify a method of computing time:

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2) Period Stated in Hours. When the period is stated in hours:
(A) begin counting immediately on the occurrence of the event that triggers the period;
(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and
(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.
(3) Inaccessibility of the Clerk's Office. Unless the court orders otherwise, if the clerk's office is inaccessible:
(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or
(B) during the last hour for filing under Rule 26(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.
(4) "Last Day" Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:
(A) for electronic filing, at midnight in the court's time zone;
(B) for filing by mail or third-party commercial carrier, at the latest time for the method chosen for delivery to the post office or third-party commercial carrier; and
(C) for filing by other means, when the clerk's office is scheduled to close.
(5) "Next Day" Defined. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
(6) "Legal Holiday" Defined. As used in this rule, "legal holiday" means a day set aside as a holiday under N.D.C.C. §§ 1-03-01, 1-03-02 and 1-03-02.1.

(b) Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. The court may not extend the time to file a notice of appeal, except as authorized by law.

(c) Additional Time after Service by Mail or Third-Party Commercial Carrier. When a party may or must act within a specified time after being served, three days must be added after the period would otherwise expire, unless the document is delivered on the date of service stated in the proof of service. For purposes of this rule, a document that is served electronically is treated as delivered on the date of service stated in the proof of service.

Rule 26 was amended, effective January 1, 1988; March 1, 1999; March 1, 2001; March 1, 2003; March 1, 2008; March 1, 2011; October 1, 2014. The explanatory note was amended, effective March 1, 2014; March 1, 2018.

Subdivision (a) was amended, effective March 1, 2011, to simplify and clarify the provisions that describe how deadlines are computed. Under the previous rule, intermediate weekends and holidays were omitted when computing short periods but included when computing longer periods. Under the amended rule, intermediate weekends and holidays are counted regardless of the length of the specified period.

Paragraph (a)(6) was amended, effective March 1, 2018, to clarify the definition of "legal holiday".

Under subdivision (b) , amended, effective March 1, 2003, any request for an extension of time should be made within the time originally prescribed or within an extension previously granted.

Subdivision (c) was amended, effective March 1, 2008, to clarify that, unless a document is delivered on the date of service as stated in the proof of service, three days are added to the prescribed period.

Subdivision (c) was amended, effective March 1, 2011, to clarify how to count the three-day extension for service by mail or commercial carrier. Under the amendment, a party that is required or permitted to act within a prescribed period should first calculate that period, without reference to the 3-day extension, but applying the other time computation provisions of these rules. After the party has identified the date on which the prescribed period would expire but for the operation of subdivision (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.

Subdivision (c) was amended, effective March 1, 2018, to remove service by electronic means from the modes of service that allow 3 added days to act after being served. Electronic service after business hours, or just before or during a weekend or holiday, may result in a practical reduction in the time available to respond. Extensions of time may be warranted to prevent prejudice.

Rule 26 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 26. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Rule 26 was amended, effective October 1, 2014, to replace "paper" with "document."

SOURCES: Joint Procedure Committee Minutes of April 27, 2017, pages 5-7; January 26-27, 2017, pages 28-29; April 25-26, 2013, pages 26-27; April 29-30, 2010, page 20; January 25, 2007, pages 17-19; September 27-28, 2001, pages 4-5; January 27-28, 2000, pages 16-17; January 29-30, 1998, page 21; February 19-20, 1987, page 7; September 18-19, 1986, page 15; May 25-26, 1978, pages 11-12. Fed.R.App.P. 26.

STATUTES AFFECTED:

CONSIDERED: N.D.C.C. ch. 1-03.

CROSS REFERENCE: N.D.R.App.P. 25 (Filing and Service); N.D.Sup.Ct.Admin.Order 14 (Electronic Filing Pilot Project).

Effective Date Obsolete Date
10/01/2018 View
10/01/2014 03/01/2018 View
03/01/2014 10/01/2014 View
03/01/2011 03/01/2014 View
03/01/2008 03/01/2011 View
03/01/2003 03/01/2008 View
03/01/2001 03/01/2003 View
03/01/1999 03/01/2001 View
05/25/1978 03/01/1999 View