RULE 6. TIME
Effective Date: 3/1/2004
Obsolete Date: 3/1/2007
(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run may not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays must be excluded in the computation. Service by facsimile transmission must be completed by 5:00 p.m., receiver's time, on a weekday, which is not a legal holiday, or service is considered made on the following weekday which is not a legal holiday
(b) Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if a request for enlargement is made before expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 4(e) (7), 52(b), 59(c), (i) and (j), and 60(b), except to the extent and under the conditions stated in them.
(c) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which is pending.
(d) For Motions-Affidavits. A written motion, other than one which may be heard ex parte, and notice of the motion must be served at least 18 days before the motion may be heard, unless a different period is fixed by rule or court order. A party may apply ex parte for the court to hear a motion sooner than 18 days after service of the motion.
(e) Service by Mail or Commercial Carrier.
(1) Whenever a party has the right or is required to do an act within a prescribed period after service of a notice or other paper and the notice or paper is served by mail or third-party commercial carrier under Rule 5, 3 days must be added to the prescribed period.
(2) If service is made by mail or third-party commercial carrier under Rule 4, the prescribed period begins running upon delivery.
(3) Service by facsimile transmission is not service by mail or third-party commercial carrier for purposes of this rule.
Rule 6 was amended, effective 1971; March 1, 1990; on an emergency basis, March 1, 1992; January 1, 1995; March 1, 1997; March 1, 1999; March 1, 2001; March 1, 2004; March 1, 2007; March 1, 2009; March 1, 2011; March 1, 2014; March 1, 2016; March 1, 2018.
Rule 6 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. 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.
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.
Subdivision (a) was amended, effective March 1, 2018, to add a new paragraph (a)(6) defining "legal holiday".
Paragraph (b)(2) was amended, effective March 1, 2011, to clarify that there can be no extension of the times set by provisions in Rules 4(e)(7), 52(b), 59(i) and (j), and 60(b).
Paragraph (b)(2) was amended, effective March 1, 2014, to add a reference to Rule 50(b) and (d) and to delete a reference to Rule 50(c).
Subdivision (d) was amended, effective March 1, 1997, because Rule 3.2, N.D.R.Ct., governs when papers supporting or opposing a motion must be served. The March 1, 2001 amendment changed from 14 to 18 days when a motion must be served before it may be heard.
Paragraph (d)(1) was amended, effective March 1, 2011, to change from 18 to 21 days when a motion must be served before the time specified for the hearing.
Paragraph (d)(1) was amended, effective March 1, 2016, to clarify that, if an evidentiary hearing is requested, the written motion and notice of motion must be served 21 days before the time specified for the hearing.
Subdivision (e) was amended, effective March 1, 1999, to make the three-day extension for service by mail applicable when service is via third-party commercial carrier. The proof of service must contain the date of mailing or deposit with the third-party commercial carrier.
Subdivision (e) was amended, effective March 1, 2004, to restrict applicability of the three-day extension for service by mail or third-party commercial carrier to items served under Rule 5. The time of service for an item served by mail or third-party commercial carrier under Rule 4 is the time the item is delivered to or refused by the recipient.
Subdivision (e) was amended, effective March 1, 2007, to clarify how to count the three-day extension for service by mail or third-party 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 (e), 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 (e) was amended, effective March 1, 2018, to remove service by electronic means from the modes of service that allow three 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.
SOURCES: Joint Procedure Committee Minutes of April 27, 2017, pages 5-7; January 26-27, 2017, pages 28-29; April 23-24, 2015, page 6; January 29-30, 2015, pages 17-19; September 26, 2013, page 11; April 25-26, 2013, pages 26-27; April 29-30, 2010, pages 4-5; April 24-25, 2008, January 24, 2008, page 15; page 21; April 27-28, 2006, pages 6-7; January 26, 2006, page 11;January 30-31, 2003, pages 4-6; September 26-27, 2002, pages 15-18; January 27-28, 2000, pages 16-17; September 23-24, 1999, pages 20-21; January 29-30, 1998, page 18; April 25, 1996, pages 8-11; April 28-29, 1994, pages 15-17; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, page 20; November 7-8, 1991, page 3; October 25-26, 1990, page 12; April 20, 1989, page 2; December 3, 1987, page 11; June 22, 1984, pages 30-31; September 20-21, 1979, pages 5-6; Fed.R.Civ.P. 6.
CONSIDERED: N.D.C.C. ch. 1-03.
CROSS REFERENCE: N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction Process Service), N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers), N.D.R.Civ.P. 52 (Findings by the Court), N.D.R.Civ.P. 59 (New Trials Amendment of Judgments), N.D.R.Civ.P. 60 (Relief From Judgment or Order); N.D.R.Crim.P. 45 (Time); N.D.R.Ct. 3.2 (Motions).
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