(a) calculation time. The following rules apply when calculating any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method for calculating time.
(1) period expressed in days or a larger unit. when the period is expressed in days or in a larger unit of time:
(a) exclude the day of the event that triggers the period;
(b) count every day, including every other Saturday, Sunday, and legal holiday; 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 indicated in hours. when the period is expressed in hours:
(a) start counting immediately on the occurrence of the event that triggers the period;
(b) count every hour, including hours during interim Saturdays, Sundays, and legal holidays; and
(c) if the term would end on a Saturday, Sunday, or legal holiday, the term will continue 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 not accessible:
(a) on the last day of filing under rule 6(a)(1), then the filing time is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or
(b) during the latest filing time under rule 6(a)(2), then the filing time 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 established by law, local rule, or court order, the last day ends:
(a) for electronic filing, at midnight in the court’s time zone; and
(b) 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 it is measured before an event.
(6) definition of “legal vacation”. “legal holiday” means:
(a) the day set aside by law to observe new year’s day, martin luther king jr.’s birthday, washington’s birthday, memorial day, independence day, labor day, Columbus Day, Veterans Day, Thanksgiving, or Christmas Day;
(b) any day declared a holiday by the President or Congress; and
(c) for periods measured after an event, any other day declared a holiday by the state in which the district court is located.
(b) extend the time.
(1) in general. when an act can or must be performed within a certain time, the court may, for just cause, extend the time:
(a) with or without a motion or notice if the court acts, or if a request is made, before the expiration of the original term or its extension; or
(b) on the motion filed after time has expired if the party failed to act due to excusable negligence.
(2) exceptions. a court should not extend the time to act under rules 50(b) and (d), 52(b), 59(b), (d) and (e), and 60(b).
(c) Motions, Notices of Hearing, and Affidavits.
(1) in general. A written motion and notice of the hearing must be served at least 14 days before the time specified for the hearing, with the following exceptions:
(a) when the motion can be heard ex parte;
(b) when these rules establish a different time; or
(c) when a court order, which a party may, for good cause, request ex parte, establishes a different time.
(2) affidavit of support. any affidavit supporting a motion must be submitted with the motion. Except as otherwise provided by rule 59(c), any opposing affidavit must be served at least 7 days before the hearing, unless the court allows delivery at another time.
(d) additional time after certain types of service. when a party can or must act within a specified time after being served and service is served under rule 5(b)(2)(c) (mail), (d) (go out with the clerk) , or (f) (other means consented), add 3 days after the period that would otherwise expire under rule 6(a).
notes
(amended December 27, 1946, effective March 19, 1948; January 21, 1963, effective July 1, 1963; February 28, 1966, effective July 1, 1966 December 4, 1967, effective July 1, 1968, March 1, 1971, effective July 1, 1971, April 28, 1983, effective August 1, 1983, April 29, 1985, effective on August 1, 1985; March 2, 1987, effective August 1, 1987, April 26, 1999, effective December 1, 1999, April 23, 2001, effective December 1, 2001, 25 April 2005, effective December 1, 2005; April 30, 2007, effective December 1, 2007; March 26, 2009, effective December 1, 2009; April 28, 2016, effective December 1, December 2016).
rules advisory committee notes: 1937
note to subsections (a) and (b). these are extensions along common lines in state practice, of the [old] fairness rule 80 (time computation: Sundays and holidays), and of the time extension provisions found in the [old] rules of equity 8 (application of final decrees) and 16 (defendant to respond—default—decree pro confesso). see also rule xiii, rules and forms in criminal cases, 292 u.s. 661, 666 (1934). compare ala.code ann. (Michie, 1928) §13 and former Rule 8 of the Rules of the Supreme Court of the District of Columbia (1924), superseded in 1929 by Rule 8 of the Act, Rules of the United States District Court for the District Columbia (1937).
note to subsection (c). this eliminates the difficulties caused by the expiration of court terms. laws such as U.S.C. title 28, [old] §12 (trials not interrupted by the new term) remain unaffected. compare united states minnesota district court rules, rule 25 (minn.stat. (mason, supp. 1936), p. 1089).
note to subsection (d). compare 2 min.stat. (mason, 1927) §9246; n.y.r.c.p. (1937) rules 60 and 64.
notes of advisory committee on rules—1946 amendment
subdivision (b). the purpose of the amendment is to clarify the finality of the sentences. Before the advent of federal rules of civil procedure, the general rule that a court loses jurisdiction to disturb its sentences, upon expiration of the time in which they were delivered, had long been the classic device that (along with the legal limits on the time of appeal) gave finality to the sentences. see note to rule 73(a). Rule 6(c) repeals that limit to the judiciary. that limit was open to many objections, one of them being the inequality of operation because, under it, the time to undo a sentence passed early in a term was much longer than for a sentence passed near the end of the term.
The question to be answered under rule 6(b) is: to what extent should the desire to allow sentence correction be allowed to postpone their finality? the rules contain a series of provisions that allow the annulment or modification of sentences for various reasons. each of these rules contains express deadlines for motions to grant precautionary measures. rule 6(b) is a rule of general application that grants wide discretion to the court to extend these time limits or reactivate them after they have expired, the only exceptions established in the original rule being the prohibition of extending the time specified in rule 59 (b) and d) to request or grant new trials, and the prohibition of extending the term established by law to file an appeal. It should also be noted that rule 6(b) itself does not contain any time limitation within which the court may exercise its discretion, and since the expiration of the time limit does not terminate its power, there is now no time limit on the exercise of its discretion under rule 6(b).
lower federal court decisions suggest that some of the rules containing time limits that may be waived under rule 6(b) are rules 25, 50(b), 52(b), 60( b) and 73(g).
In several cases the effect of rule 6(b) on the time constraints of these rules has been considered. certainly the rule is susceptible to the interpretation that the court has the power, at its discretion, to exempt a party from inaction within the time limits specified in any of these other rules, with only the exceptions set forth in the rule 6(b), and in some cases, the rule has been so interpreted.
Regarding the 25(a) rule for substitution, it was held in Anderson v. Brady (Edky. 1941) 4 fed.rules service 25a.1, case 1, and in anderson v. yungkau (c.c.a. 6th, 1946) 153 f.(2d) 685, cert. granted (1946) 66 s.ct. 1025, that under rule 6(b) the court had no authority to allow substitution of parties after the expiration of the limit set in rule 25(a).
Regarding the 50(b) rules for trials despite verdict and 52(b) for amendment of findings and mistrial, it was recognized in leishman v. Associated Wholesale Electric Co. (1943) 318 usa 203, that rule 6(b) allowed the district court to extend the time to file a motion to modify findings and sentences beyond the limit expressly set forth in rule 52(b). see Coca-Cola v. busch (ed.pa. 1943) 7 fed.rules service 59b.2, case 4. obviously, if the time limit in rule 52(b) could be waived under rule 6(b), time would be the established limit in rule 50(b) to pass sentence despite the verdict (and thus set aside the sentence passed “immediately” on the verdict) could also be set aside.
regarding rule 59 motions for a new trial, it has been resolved that the time limits established in rule 59(b) and (d) for filing motions or granting a new trial cannot be waived under rule 6(b)), because rule 6(b) expressly refers to rule 59, and prohibits it. view safeway stores, inc. v. coe (app.d.c. 1943) 136 f.(2d) 771; justino v. morals & uncle (c.c.a. 1st, 1944) 139 f.(2d) 946; coke co. v. busch (ed.pa. 1943) 7 fed.rules service 59b.2, case 4; peterson v chicago great western ry. co. (d. neb. 1943) 7 federal rule service 59b.2, case 1; leishman vs. Associated Wholesale Electric Co. (1943) 318 usa 203.
As for rule 60(b) to remedy a fault, it was upheld in Schram v. o’connor (ed. mich. 1941) 5 fed.rules serv. 6b.31, case 1, 2 f.r.d. 192, art. c. 5 servings 6b.31, case 2, f.r.d. 192, that the six-month time limit established in the original rule 60(b) to file a petition for redress of a surprise failure, error, or excusable negligence could be waived under rule 6(b). The opposite result was reached in Wallace v. united states (c.c.a.2d, 1944) 142 f.(2d) 240, cert. den. (1944) 323 usa 712; reed v. South Atlantic Steamboat Co. of. (died 1942) 6 serv. 60b.31, case 1.
As for rule 73(g), which sets the time to file an appeal, it was held in ainsworth v. gill glass & accessory co. (c.c.a.3d, 1939) 104 f.(2d) 83, that pursuant to rule 6(b) the district court, upon application filed after the expiration of the forty-day period established in rule 73(g), but before the expiration of the ninety-day period specified therein, it may allow the appeal to be filed if excusable negligence is shown. the opposite was held at mutual health & accident ass’n v. Snyder (C.C.A. 6th, 1940) 109 f.(2d) 469 and in Burke v. canfield (app.d.c. 1940) 111 f.(2d) 526.
The modification of rule 6(b) now proposed is based on the view that there must be a definite point at which a judgment can be said to be final; that the correct method of dealing with the problem is to list in rule 6(b) the other rules whose time limits cannot be set aside, and then, if the time limit in any of those other rules is too short, to modify that other rule to give a longer time. The further argument is that rule 6(c) abolished the long-standing device for making judgments final through the expiration of time, and since that limitation on the jurisdiction of courts to set aside their own judgments has been removed by the rule 6(c), some other limitation must be superseded or the sentences can never be said to be final.
In this sense, reference is made to the established rule that if a motion for a new trial is timely filed, the mere filing or processing of the motion destroys the finality of the trial, and even if the motion is ultimately denied, the full appeal time starts again from the date of the denial. furthermore, a motion to amend findings under rule 52(b) has the same effect at the time of appeal. leishman vs. Associated Wholesale Electric Co. (1943) 318 usa 203. By the same reasoning, a sentencing motion under rule 50(b), involving the setting aside of a sentence entered “immediately” at the verdict (rule 58), operates to postpone, until an order is made, the execution of the time of appeal. the committee believes that the abolition by rule 6(c) of the old rule that a court’s power over its sentences ends with the term, requires a substitute limitation, and that unless rule 6(b) is amended to avoid the extension of the times specified in rules 50(b), 52(b) and 60(b), and the limitation regarding rule 59(b) and (d) is maintained, no one can say when a judgment is final. this is also true with respect to proposed rule 59(e), which authorizes a motion to modify or amend a sentence, so that rule is also listed in amended rule 6(b). however, in consideration of the amendment, it should be noted that rule 60(b) will also be amended to extend the six-month period originally prescribed in that rule to one year.
regarding rule 25 on substitution, while the purpose is not involved, the limit set therein must be decisive. that rule, as amended, gives the court the power, upon reasonable excuse, to allow substitution after the expiration of the two-year period.
regarding rule 73(g), it is believed that the conflict in decisions should be resolved and not left for further litigation, and that the rule should be listed as a rule whose limitation cannot be overridden under rule 6 (b). ).
Regarding rule 59(c), which sets the time for filing affidavits on the motion for a new trial, it is believed that the court should have authority under rule 6(b) to extend the time, because , once the motion for a new trial is carried out, the sentence is no longer final and, therefore, the extension of the term for the affidavits does not per se disturb the purpose.
Other proposed changes to rule 6(b) are merely clarification and compliance. therefore, “request” is replaced by “request” in clause (1) because a request is defined as a motion under rule 7(b). the phrase “extend the term” is replaced by “extend the term” because the former is a more appropriate expression and is more clearly related to clauses (1) and (2). the final sentence of rule 6(b) is deleted, “or the time limit for filing an appeal as provided by law”, and a reference to rule 73(a) is inserted, since it is proposed to establish in that rule the time to appeal to a circuit court of appeals, which is the only appeal governed by federal rules, and allows for an extension of time. see rule 72.
subdivision (c). the purpose of this amendment is to avoid relying on the continued existence of a term as a source of power to impair the finality of a judgment for reasons other than those set forth in these rules. see hill v. hawes (1944) 320 u.s. 520; boaz v. mutual life ins. co. of new york (c.c.a. 8th, 1944) 146 f.(2d) 321; bucy v. nevada construction co. (c.a. 9th, 1942) 125 f.(2d) 213.
notes of advisory committee on rules—1963 amendment
subdivision (a). this amendment is related to the amendment to rule 77(c) which changes the regulation of the days on which the clerk’s office will be open.
The wording of the first sentence of rule 6(a) is clarified and the subdivision is made expressly applicable to the computation of the time periods established in the local rules.
Saturday should be treated in the same way as Sunday or a “legal holiday” in that it should not be included when it falls on the last day of a computed period, nor counted as an intermediate day when the period is less than 7 days. “legal holiday” is defined for purposes of this subdivision and amended rule 77(c). Compare the definition of “holiday” in 11 U.S.C. §1 (18); also 5 u.s.c. §86a; executive decree no. 10358, “Holiday Observance,” June 9, 1952, 17 fed.reg. 5269. In light of these changes, the last sentence of this subdivision, which deals with half-holidays, is deleted.
with Saturdays and state holidays made “dies non” in certain cases by the amended subdivision, the usual 5-day notice of motion or 2-day notice to dissolve or modify a temporary restraining order computation may work so as to cause embarrassing delays in urgent cases. the delay can be avoided by asking the court to shorten the time, see rules 6(d) and 65(b).
subdivision (b). the prohibition to extend the period to act of rule 25 (substitution of parties) is eliminated. the only time limitation provided in amended rule 25 is the 90-day period after a suggestion on the recording of a party’s death within which to file a motion to substitute the deceased party for the proper parties. see rule 25(a)(1), as amended, and the advisory committee note thereto. the court is intended to have discretion to extend that period.
notes of advisory committee on rules—1968 amendment
The amendment removes references to rule 73, which will be repealed.
p. I 88-139, §1, 77 stat. 248, approved October 16, 1963, amended 28 U.S.C. §138 to read as follows: “the district court will not hold formal terms.” therefore, rule 6(c) becomes unnecessary and is rescinded.
notes of advisory committee on rules—1971 amendment
the amendment adds the day of the race to the list of legal holidays to conform the subdivision to the law of June 28, 1968, 82 stat. 250, which established Columbus Day as a legal holiday as of January 1, 1971.
The law, which amended title 5, u.s.c., §6103(a), changes the day on which certain holidays must be observed. washington’s birthday, memorial day and veterans day will be celebrated on the third monday in february, the last monday in may and the fourth monday in october, respectively, instead of, as before, february 22 , May 30 and November 11. respectively. Columbus Day is celebrated on the second Monday in October. New Year’s Day, Independence Day, Thanksgiving, and Christmas continue to be celebrated on traditional days.
notes of the advisory committee on rules—1983 amendment
subdivision (b). the amendment gives finality to the sentences of the magistrates by preventing the extension of the time of appeal except as provided in the new rule 74(a) (20-day period for showing of excusable negligence).
notes of the advisory committee on rules—1985 amendment
Rule 6(a) is amended to recognize that weather conditions or other events may make the clerk’s office inaccessible for one or more days. parties who are required to file something in court during that period should not be penalized if they are unable to do so. the amendment conforms to changes made to federal rule of criminal procedure 45(a), effective August 1, 1982.
The rule is also modified to extend the exclusion of Saturdays, Sundays and intermediate legal holidays to the computation of periods of time less than 11 days. Under the current version of the rule, parties filing motions under the 10-day rule period may have as little as 5 business days to prepare their motions. this difficulty would be especially serious in the case of rules 50(b) and (c)(2), 52(b) and 59(b), (d) and (e), which cannot be extended at the discretion of the court. see rule 6(b). if the exclusion of Saturdays, Sundays and legal holidays will operate to cause undue delay in urgent cases, the delay can be avoided by asking the court to shorten the time, see rule 6(b).
Martin Luther King, Jr.’s birthday, which becomes a legal holiday beginning in 1986, has been added to the list of legal holidays listed in the rule.
notes of advisory committee on rules—1987 amendment
amendments are technical. no substantial change is intended.
rules committee notes—1999 amendment
The reference to rule 74(a) is removed from the catalog of terms that the district court may not extend. the change reflects the repeal of rule 74(a) in 1997.
notes from committee on rules—2001 amendment
The additional three days provided by rule 6(e) is extended to the means of service authorized by the new paragraph (d) added to rule 5(b), including, with the consent of the person served, the email notification. or other means. the three day addition is also provided for service on a person with no known address by leaving a copy with the clerk of court.
changes made after publication and comments. the proposed rule 6(e) is the same as the “alternate proposal” that was published in August 1999.
notes from committee on rules—2005 amendment
Rule 6(e) is amended to remove any doubt as to the method of extending the time to respond after service by mail, leaving with the clerk of court, electronic means, or other means consented to by the party served. three days are added after the expiration of the period prescribed under rule 6(a). intermediate Saturdays, Sundays and legal holidays are included in the calculation of these three additional days. if the third day is a Saturday, Sunday, or legal holiday, the last day to act is the next day that is not a Saturday, Sunday, or legal holiday. the effect of invoking the day on which the prescribed period would expire under rule 6(a) can be illustrated by assuming that the thirtieth day of a thirty-day period falls on a Saturday. under rule 6(a), the term expires on the next day that is not a Sunday or a legal holiday. if the following Monday is a legal holiday under rule 6(a), the deadline is Tuesday. then three days are added: Wednesday, Thursday and Friday as the third and last day to act. if the indicated term expires on a Friday, the three added days are Saturday, Sunday and Monday, which is the third and last day to act, unless it is a legal holiday. if Monday is a legal holiday, the next day that is not a legal holiday is the third and last day to act.
The application of rule 6(e) to a period of less than eleven days can be illustrated by a document delivered by mail on a Friday. if ten days are allowed to respond, Saturdays, Sundays, and legal holidays are excluded in determining when the deadline is due under rule 6(a). if there is no legal holiday, the term expires on Friday two weeks after the document is sent. the three added rule 6(e) days are Saturday, Sunday, and Monday, which is the third and last day to act unless it is a legal holiday. if Monday is a legal holiday, the next day that is not a legal holiday is the last day to act.
changes made after publication and comment. changes were made to further clarify the method of counting the three days added after service under rule 5(b)(2)(b), (c), or (d).
rules committee notes—2007 amendment
The language of rule 6 was changed as part of the general redesign of the civil rules to make them easier to understand and to make the style and terminology consistent throughout the rules. these changes are intended to be stylistic only.
notes from committee on rules—2009 amendment
subdivision (a). subdivision (a) has been amended to simplify and clarify the provisions describing how time limits are calculated. subdivision (a) governs the computation of any time period found in these rules, in any local rule or court order, or in any statute that does not specify a method of computation of time. under rule 83(a)(1), a local rule may not direct a deadline to be calculated inconsistently with subdivision (a).
The time reckoning provisions of subsection (a) apply only when a time period is to be reckoned. they do not apply when a fixed time is set to act. The amendments thus carry forward the approach taken in Violette v. p.a. days, inc., 427 f.3d 1015, 1016 (6th cir. 2005) (holding that civil rule 6(a) “does not apply to situations where the court has established a specific calendar day as the deadline” ), and rejects the contrary decision of in re american healthcare management, inc., 900 f.2d 827, 832 (5th cir. 1990) (holding that bankruptcy rule 9006(a) governs the deadline treatment determined by order judicial). if, for example, the filing date is “no later than November 1, 2007,” subdivision (a) does not apply. but if a “within 10 days” or “within 72 hours” filing is required, subsection (a) describes how that deadline is calculated.
Subdivision (a) does not apply in calculating a period of time established by statute if the statute specifies a method for calculating the time. see, eg, 2 u.s.c. §394 (specifying the method of calculating the time periods prescribed by certain statutory provisions relating to contested elections to the House of Representatives).
subdivision (a)(1). new subsection (a)(1) addresses the computation of time periods that are expressed in days. it also applies to periods of time that are expressed in weeks, months, or years. see, for example, rule 60(c)(1). the directive in subsection (a)(1)(b) to “count every day” is relevant only if the period is set to days (not weeks, months, or years).
under old rule 6(a), a period of 11 days or more was computed differently from a period of less than 11 days. Saturdays, Sundays, and intervening legal holidays were included in the computation of the longer periods, but were excluded in the computation of the shorter periods. the old rule 6(a) thus unnecessarily complicated the computation of time limits and led to counterintuitive results. for example, a 10-day period and a 14-day period that began on the same day generally ended on the same day, and the 10-day period often ended later than the 14-day period. view miltimore sales, inc. v. int’l rectifier, inc., 412 f.3d 685, 686 (6th cir. 2005).
Under new subsection (a)(1), all deadlines stated in days (regardless of length) are calculated in the same manner. the day of the event that triggers the term is not counted. all other days, including intermediate Saturdays, Sundays, and statutory holidays, are counted, with one exception: if the period ends on a Saturday, Sunday, or statutory holiday, then the due date falls on the next day that is not a Saturday, Sunday or legal holiday. An illustration is provided below in the discussion of subsection (a)(5). subdivision (a)(3) addresses filing deadlines that are due on a day when the clerk’s office is not accessible.
where subdivision (a) previously referred to the “act, event, or breach” that triggers the deadline, the new subdivision (a) simply refers to the “event” that triggers the deadline; this change in terminology is adopted for brevity and simplicity, and is not intended to change the meaning.
The periods previously expressed as less than 11 days will be shortened in practice by the decision to count Saturdays, Sundays and intervening statutory holidays in the computation of all periods. many of those periods have been lengthened to compensate for the change. see, for example, rule 14(a)(1).
Most 10-day periods have been adjusted to comply with the change in calculation method by setting 14 days as the new period. a period of 14 days corresponds to the most frequent result of a period of 10 days according to the calculation method above: two Saturdays and two Sundays were excluded, giving 14 days in total. a period of 14 days has an additional advantage. the last day falls on the same day of the week as the event that triggered the period; for example, the 14th day after a Monday is a Monday. This advantage of using periods of one week meant that periods of 7 days were adopted to replace some of those set at less than 10 days, and 21 days to replace those of 20 days. however, periods of thirty days or more generally remained unchanged.
subsection (a)(2). new subsection (a)(2) addresses the computation of time periods that are expressed in hours. no such deadline currently appears in the federal rules of civil procedure. but some statutes contain deadlines set in hours, as do some court orders issued in expedited proceedings.
Under subsection (a)(2), a deadline set in hours begins to run immediately after the event that triggers the deadline occurs. the term usually ends when the time expires. however, if the deadline expires at a specific time (for example, 2:17 p.m.) on a Saturday, Sunday, or legal holiday, the deadline will be extended until the same time (2:17 p.m.) on the next day on which the deadline expires. It is not a Saturday, Sunday, or legal holiday. periods expressed in hours should not be “rounded up” to the next whole hour. subdivision (a)(3) addresses situations where the clerk’s office cannot be accessed during the last hour before the filing deadline.
subsection (a)(2)(b) mandates counting every hour. thus, for example, a 72-hour period beginning at 10:23 am on Friday, November 2, 2007, will extend until 9:23 am on Monday, November 5; the discrepancy in the start and end times in this example is due to the intermediate change from daylight saving time to standard time.
subsection (a)(3). in determining the last day of a filing period expressed in days or a larger unit of time, a day on which the clerk’s office is not accessible due to weather or other reason shall be treated as a Saturday, Sunday, or legal holiday. in determining the end of a filing period expressed in hours, if the clerk’s office is inaccessible during the last hour of the filing period calculated under subdivision (a)(2), then the period is extended to the same time of the next day that is not a weekend, holiday, or day the clerk’s office is inaccessible.
The extensions of subdivision (a)(3) apply “[un]less the court orders otherwise.” in some circumstances, the court may not want a period of inaccessibility to trigger a full 24-hour extension; in those cases, the court may specify a shorter extension.
The text of the rule no longer refers to “weather or other conditions” as the reason for the inaccessibility of the clerk’s office. the reference to “weather” was removed from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system. weather may still be a reason for the inaccessibility of the clerk’s office. the rule does not attempt to define inaccessibility. Rather, the concept will continue to develop through case law, see, for example, William G. phelps, when the clerk of court’s office is inaccessible due to weather or other conditions for the purpose of calculating the time period for filing documents under rule 6(a) of the federal rules of civil procedure, 135 a.l.r. fed. 259 (1996) (collection of cases). in addition, many local provisions address inaccessibility for electronic filing purposes, see eg d. dog. rule 5.4.11 (“a filing user whose filing is untimely as a result of a technical failure may seek appropriate relief from the court”).
subsection (a)(4). new subdivision (a)(4) defines the end of the last day of a period for purposes of subdivision (a)(1). subdivision (a)(4) does not apply to the computation periods established in hours under subdivision (a)(2), and does not apply if a different time is established by statute, local rule, or order in the case . a local rule might, for example, address problems that might arise if a single district has clerk’s offices in different time zones, or stipulate that documents filed in a drop box after normal clerk’s office hours be filed from day on which the date is stamped on the papers by means of a device in the mailbox.
28 usc §452 states that “[a]ll courts in the united states shall always be deemed open for the purpose of filing proper papers, issuing and returning process, and filing motions and orders.” there is a corresponding provision in rule 77(a). some courts have held that these provisions allow for an after-hours filing by serving the documents on an appropriate officer. See, for example, Casalduc v. diaz, 117 f.2d 915, 917 (1st cir. 1941). subsection (a)(4) does not address the effect of the law on the after-hours filing issue; instead, the rule is designed to deal with filings in the ordinary course without regard to section 452.
subsection (a)(5). new subdivision (a)(5) defines the “next” day for purposes of subdivisions (a)(1)(c) and (a)(2)(c). the federal rules of civil procedure contain both forward looking and backward looking time periods. a prospective time period requires that something be done within a period of time after an event. see, eg, rule 59(b) (petition for new trial “must be filed no later than 28 days after sentence is entered”). a lookback time period requires that something be done within a time period before an event. see e.g. rule 26(f) (parties must hold rule 26(f) conference “as soon as possible and, in any event, at least 21 days before a scheduling conference is held or for a scheduling order to expire under rule 16(b)”). to determine which day is “next” for the purposes of subsections (a)(1)(c) and (a)(2)(c), continue counting in the same direction, that is, forward to the calculate a lookback period forward and backward when calculating a lookback period. if, for example, a submission is due within 30 days of an event, and the 30th day falls on Saturday, September 1, 2007, then the submission is due on Tuesday, September 4, 2007 (Monday, September 3 is labor). but if the submission is due 21 days before an event, and the twenty-first day falls on Saturday, September 1, then the submission is due on Friday, August 31. if the clerk’s office is not accessible on August 31, then subdivision (a)(3) extends the filing deadline to the next accessible day that is not a Saturday, Sunday, or legal holiday, no later than Tuesday, August 4 September.
subsection (a)(6). new subdivision (a)(6) defines “legal holiday” for purposes of the federal rules of civil procedure, including the time computation provisions of subdivision (a). Subsection (a)(6) continues to include within the definition of “legal holidays” days that are declared holidays by the President or Congress.
For periods counted forward, that is, periods measured after an event, subsection (a)(6)(c) includes certain state holidays within the definition of statutory holidays. however, state legal holidays are not recognized when calculating countdown periods. For both counted forward and backward periods, the rule protects those who may be unsure of the effect of state holidays. for deadlines counted forward, treating state holidays the same as federal holidays extends the deadline. therefore, someone who thought that the federal courts might be closed on a state holiday would be protected against an inadvertent late filing. conversely, for counted-back deadlines, not treating state holidays as federal holidays allows you to file on the state holiday itself rather than the day before. Take, for example, Monday, April 21, 2008 (Patriot’s Day, a legal holiday in the relevant state). If a filing is due 14 days after an event, and the fourteenth day is April 21, then the filing is due Tuesday, April 22 because Monday, April 21 counts as a legal holiday. but if the submission is due 14 days before an event, and the fourteenth day is April 21, the submission is due on Monday, April 21; the fact that April 21 is a state holiday does not make it a legal holiday for purposes of computing this period counted backwards. but note that if the clerk’s office is not accessible on Monday, April 21, then subsection (a)(3) extends the April 21 filing deadline to the next accessible day other than Saturday, Sunday or legal holiday, no earlier than Tuesday, April 22.
changes made after publication and comment. standing committee changed rule 6(a)(6) to exclude state holidays from the definition of “legal holidays” for purposes of calculating countdown periods; changes were made per committee note.
[ subsections (b) and (c). ] times set in the previous rule at 1 or 5 days have been revised to 7 or 14 days. see the note to rule 6 [above].rules committee notes: 2016 amendment
Rule 6(d) is amended to eliminate notice by electronic means under rule 5(b)(2)(e) of modes of notice that allow an additional 3 days to act upon notice.
Rule 5(b)(2) was amended in 2001 to provide service by electronic means. although electronic transmission seemed virtually instantaneous then, electronic notification was included in the notification modalities that allow an additional 3 days to act after being notified. there was concern that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and the widespread ability to use electronic transmission.
A parallel reason for allowing the additional 3 days was that the electronic service was authorized only with the consent of the person to be served. concerns about the reliability of the electronic transmission could have led to the denial of consent; the additional 3 days were calculated to alleviate these concerns.
The easing of concerns that prompted the decision to allow the additional 3 days for electronic transmission is not the only reason to rule out this leniency. many rules have been changed to make the task of calculating time easier by adopting periods of 7, 14, 21, and 28 days that allow “days of the week” counting. adding 3 days to the end complicated the computation, and increased the chances of further complication by invoking provisions that apply when the last day is a Saturday, Sunday, or legal holiday.
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. time extensions may be warranted to avoid bias.
removing rule 5(b) subparagraph (2)(e) from modes of notice allowing an additional 3 days means that the additional 3 days cannot be withheld by consenting to electronic notice. consent to electronic service by registering for electronic filing of cases, for example, does not count as consent to service “by any other means” of delivery under subparagraph (f).
what is now rule 6(d) was amended in 2005 “to remove any doubt as to the method of calculating the time to respond after service by mail, leaving with the clerk of court, electronic means, or other means consented to by the served party.” potential ambiguity was created by substituting “after service” for the above references to acting after service “on the party” if a document or service is “delivered on the party” by the specified means. “[a]fter notification” could be interpreted to refer not only to a party that has been notified but also to a party that has made the notification. that reading would mean that a party allowed a specific time to act after giving notice can extend the time by choosing one of the means of notice specified in the rule, something that was never the intent of the original rule or the amendment. rules that establish a time to act after making the service include rules 14(a)(1), 15(a)(1)(a), and 38(b)(1). “[a]fter being served” is replaced with “after service” to dispel any possible misreading.