Obsolete Date: 3/1/2011
(a) Computing Time. The following rules apply in computing any period of time specified in these rules, any local rule, or any court order:
(1) Day of the Event Excluded. Exclude the day of the act, or event, or default that begins the period.
(2) Exclusion from Brief Periods. Exclude intermediate Saturdays, Sundays and legal holidays when the period is less than 11 days.
(3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or day on which weather or other conditions make the clerk's office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday or day when the clerk's office is inaccessible.
(4) Facsimile Service. Service by facsimile transmission must be completed by 5:00 p.m., receiver's time, on a weekday that is not a legal holiday, or service is considered made on the following weekday that is not a legal holiday.
(5) "Legal Holiday" Defined. As used in this rule, "legal holiday" means:
(A) a specific day set aside as a holiday under N.D.C.C. § 1-03-01; or
(B) any other day declared a public holiday by the President of the United States or the governor of this state.
(b) Extending Time.
(1) In General. When an act must or may be done within a specified time, the court on its own may extend the time, or for good cause may do so on a party's motion made:
(A) before the originally prescribed period or previously extended time expires; or
(B) after the time expires if the party failed to act because of excusable neglect.
(2) Exceptions. The court may not extend the time for taking any action under Rules 35 and 37, except as stated in those rules.
(c) Additional Time After Service by Mail or Commercial Carrier. Whenever a party must or may act within a prescribed period after service and service is made by mail or third-party commercial carrier, three days are added after the prescribed period would otherwise expire under Rule 45(a). Service by facsimile transmission is not service by mail or third-party commercial carrier.
Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2001 in Supreme Court Docket No. 20000212 & 20000276; March 1, 2006; March 1, 2007; March 1, 2011; March 1, 2018. The explanatory note was amended, effective March 1, 2014.
Rule 45 is an adaptation of Fed.R.Crim.P. 45 with certain modifications. The rule is similar to N.D.R.Civ.P. 6, which also deals with computing time.
Rule 45 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal 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.
A subdivision referring to terms of court was deleted, effective March 1, 2006. The district courts of North Dakota are in continuous session and terms of court are not a factor in computing or extending time. At the same time, and consistent with the federal rule, a subdivision dealing with motions and affidavits was transferred to Rule 47.
Subdivision (a) was amended, effective March 1, 2006, to include a paragraph defining the term "legal holiday". The definition was amended, effective March 1, 2018, to reference N.D.C.C. §§ 1-03-01, 1-03-02 and 1-03-02.1.
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 (b) was amended, effective March 1, 2007, to delete Rules 29, 33 and 34 from the exceptions paragraph.
Subdivision(c) is an adaptation of N.D.R.Civ.P. 6(e). Under this subdivision, 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, 1999, to make the three-day extension for service by mail applicable when service is via commercial carrier. The proof of service must contain the date of mailing or deposit with the commercial carrier as required by Rule 49(e) and N.D.R.Civ.P. 4(k) and 5(f).
Subdivision (c) 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 25-26, 2013, pages 26-27; April 29-30, 2010, pages 24-25; April 27-28, 2006, pages 6-7; January 26, 2006, page 11; January 27-28, 2005, page 37; January 27-28, 2000, pages 16-17; January 29-30, 1998, page 20; April 28-29, 1994, pages 15-16; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, pages 20-22; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, page 31; December 11-15, 1972, pages 48-50; September 17-19, 1970, page 10; March 12-14, 1970, pages 16-18; Fed.R.Crim.P. 45.
SUPERSEDED INSOFAR AS CRIMINAL PROCESS: N.D.C.C. § 1-02-15.
CONSIDERED: N.D.C.C. ch. 1-03, § 1-01-33.
CROSS REFERENCE: N.D.R.Crim.P. 29 (Motion for a Judgment of Acquittal); N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 34 (Arresting Judgment); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence); N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 47 (Motions); 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. 6 (Time); N.D.R.App.P. 26 (Computing and Extending Time).