Time After Time: Changes to Time-Computation Rules under the Federal Rules of Civil Procedure

I. Introduction

In order to simplify time-computation provisions and eliminate related inconsistencies found in the federal rules, in March 2009, the United States Supreme Court approved amendments to Appellate Rule 26, Bankruptcy Rule 9006, Civil Rule 6, and Criminal Rule 45. In total 91 federal rules and 28 federal laws were adjusted. The amended rules take effect on December 1, 2009. This article reviews time-computation changes to the Federal Rules of Civil Procedure.

II. Days Are Days

The primary change in the amended time-computation rules is the adoption of a "days are days" approach to calculating all time periods. Under the current rules, all days are not viewed equally. Rather, intervening weekends and holidays are omitted for purposes of calculating time periods of less than 11 days, but included when computing longer periods, resulting in unnecessary complication. For instance, according to current rules, 10 days never last just 10 days. Instead, 10 days always last at least 14 days. Eight times a year 10 days can last 15 days, and once per year 10 days lasts 16 days.

Under the amended rules, no longer are weekend days and legal holidays to be distinguished from court days (no matter the length of the period). In order to calculate all time periods under the amended rules, intervening weekends and holidays are always counted. Amended Rule 6(a)(1)(B). In short, every day is a "day" for purposes of the amended rules.

III. Extension of Short Time Periods

Since the "days are days" approach shortens many existing periods that are less than 11 days, the committee which proposed the amendments reviewed every time period in the rules and proposed adjustments to ensure that all time periods would be reasonable and that changing the time-computation method did not have the effect of shortening existing time periods. Most short periods were simply extended by the number of weekend days that would typically factor into time-computation under the current rules: 5-day periods are now 7-day periods, and 10-day periods are now 14-day periods.

To further account for the "days are days" approach and offset the change in computation method, periods shorter than 30 days were revised to be multiples of 7 days. Adoption of periods of 7, 14, 21, and 28-days also reduces the likelihood of time periods ending on weekends.

If, despite these efforts, a period still ends on a Saturday, Sunday, or legal holiday under the amended rules, then the deadline is pushed to the next day that is not a Saturday, Sunday, or legal holiday. Amended Rules 6(a)(2)(C) and 6(a)(5).

IV. Calculation of Hourly Time Periods

The amended rules now address computation of time periods stated in hours; formerly, no such deadline existed. Amended Rule 6(a)(2). A deadline stated in terms of hours starts to run immediately on the occurrence of the event that triggers the deadline, and every hour is counted, including those on intermediate Saturdays, Sundays, and holidays. Id. If the time expires on a Saturday, Sunday, or legal holiday, then the deadline is extended to the same time on the next day that is not a Saturday, Sunday, or legal holiday. Id. For example, a time period that would otherwise end on Sunday at 2:15 p.m. will actually end on Monday at 2:15 p.m. Periods stated in terms of hours are not to be rounded up to the next whole hour. Id. at Committee Note.

V. Electronic Filing Considerations

Gaps exist in the current rules regarding special timing considerations that accompany electronic filing. The amendments provide that, unless a different time is set by a statute, local rule, or court order, the last day of a period for an electronic filing ends at midnight in the court's time zone, while the last day for a paper filing ends when the clerk's office is scheduled to close. Amended Rule 6(a)(4). Filing deadlines are extended if the clerk's office is "inaccessible", which may vary depending upon whether a filing is electronic or paper. Amended Rule 6(a)(3). The amendments and Committee Notes leave the definition of "inaccessibility" to local rules and developing case law.

VI. Amendment Mechanics

The amendment to Federal Rule of Civil Procedure 6 is the operative amendment that simplifies and clarifies the general time-computation method under the civil rules. The amendments to Rules 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, and 81 largely adjust specified time periods consistent with Amended Rule 6's new framework by rounding up current time periods to the next multiple of 7 days. Some of the more significant revisions to these rules are as follows:

Rule	Topic	Current Rule	Amended Rule
6(b)	Extension of times set by enumerated provisions in Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).	Extension permitted as those rules allow	No permissible extension of the times set by those amended rules
6(c)(1)	Time for a party to serve a written motion and notice of hearing before the scheduled hearing date	5 days	14 days
6(c)(2)	Time for a party to serve any affidavit opposing a motion	1 day	7 days
50, 52, 59(b),(d), and (e)	Time allowed to prepare and file post-judgment motions	10 days	28 days
54(d)	Time for clerk to give notice before taxing costs	1 day	14 days
56(a)	Time within which party may move for summary judgment	Varies	Default – any time until 30 days after close of discovery
56(c)	Default times for response and reply to a motion for summary judgment	Not specified	21 days after motion served
56(c)	Default times for reply to a motion for summary judgment	Not specified	14 days after response served

VII. Conclusion

While sure to cause some short-term confusion as the legal community becomes accustomed to the amended rules and as courts adjust their local rules to correspond with the amendments, once integrated into daily practice, the amended rules should prove simpler, clearer, and more consistent than the former rules. A copy of the Amended Rules may be found at: http://www.uscourts.gov/rules/Supreme%20Court%202008/2008-CV-Clean_Rules.pdf