November 17, 2009
On December 1, a major overhaul of timelines in federal courts goes into effect. The principal thrust of the amendments is to eliminate the skipping of Saturdays, Sundays and holidays in the counting of the shorter time periods — and instead lengthens the time periods to take that elimination into account.
The changes are effected by various amendments to the Federal Rules of Civil, Criminal, Bankruptcy, and Appellate Procedure promulgated earlier this year by the Supreme Court. Complimentary federal legislation amends twenty-eight statutory deadlines to make them consistent with the new time-computation amendments to the Federal Rules. Both the Federal Rules amendments and the statutory amendments will take effect on December 1, 2009.
The chart below provides a summary of the changes coming December 1. A full discussion follows the chart.
Please consult your Taft attorney with questions.
|Civil Rule||Action||Current Time||Amended Time|
|6(c)(1)||Service of Written Motion and Notice of the Hearing||5 days before hearing||14 days before hearing|
|6(c)(2)||Service of Affidavit Opposing a Motion||1 day before hearing||7 days before hearing|
|12(a)(1)(A)(i)||Service of Answer to Complaint||20 days after service||21 days after service|
|12(a)(1)(B)||Service of Answer to Counterclaim or Crossclaim||20 days after service||21 days after service|
|12(a)(1)(C)||Service of Reply to an Answer||20 days after service||21 days after service|
|12(a)(4)(A)||Service of Responsive Pleading after Denial of Rule 12 Motion||10 days after notice of denial||14 days after notice of denial|
|12(a)(4)(B)||Service of Responsive Pleading after Granting Motion for More Definite Statement||10 days after more definite statement is served||14 days after more definite statement is served|
|12(e)||Compliance with Order for More Definite Statement||10 days after notice of the order||14 days after notice of the order|
|12(f)||Motion to Strike||made before responding or, if no response allowed, within 20 days after service of the pleading||made before responding or, if no response allowed, within 21 days after service of the pleading|
|14(a)(1)||Third-Party Complaint Filed by Defendant||must get leave if third-party complaint filed more than 10 days after service of original answer||must get leave if third-party complaint filed more than 14 days after service of original answer|
|15(a)(1)||Amended Pleading as a Matter of Course||before service of responsive pleading or within 20 days after service if no responsive pleading allowed||21 days after service or, if responsive pleading is required, 21 days after service of responsive pleading or motion under Rule 12(b), (e), or (f), whichever is earlier|
|15(a)(3)||Required Response to Amended Pleading||within the time remaining for original response or 10 days after service of amended pleading, whichever is later||within the time remaining for original response or 14 days after service of amended pleading, whichever is later|
|23(f)||Filing Petition for Permission to Appeal Order Granting or Denying Class-Action Certification.||within 10 days after order is entered||within 14 days after order is entered|
|27(a)(2)||Service of Petition and Notice for Perpetuation Deposition on Adverse Parties||20 days before hearing||21 days before hearing|
|32(a)(5)||Use of Depositions - Short Notice||cannot use deposition against party who received less than 11 days' notice and the deposition was taken while deponent's motion for a protective order was pending||cannot use deposition against party who received less than 14 days' notice and the deposition was taken while deponent's motion for a protective order was pending|
|32(d)(3)(C)||Waiver of Objection to the Form of a Written Question||if the question is a recross-question, must serve objection to form within 5 days of service||if the question is a recross-question, must serve objection to form within 7 days of service|
|38(b)(1)||Service of Written Demand for Jury Trial||within 10 days after the last pleading is served||within 14 days after the last pleading is served|
|38(c)||Service of Demand for Jury Trial on All Issues After Other Party Requested Jury Trial on Specific Issues||within 10 days after service of demand on specific issues||within 14 days after service of demand on specific issues|
|50(b)||Filing a Renewed Motion for Judgment as a Matter of Law||within 10 days after judgment or discharge of jury||within 28 days after judgment or discharge of jury|
|50(d)||Filing a Motion for New Trial by a Party against Whom Judgment as a Matter of Law is Rendered||within 10 days after entry of judgment||within 28 days after entry of judgment|
|52(b)||Filing Motion for Amended or Additional Findings||within 10 days after entry of judgment||within 28 days after entry of judgment|
|53(f)(2)||Filing Objections to the Master's Order, Report, or Recommendations||within 20 days after service||within 21 days after service|
|54(d)(1)||Court Costs Other Than Attorney's Fees||clerk may tax costs on 1 day's notice - on motion served within the next 5 days, the court may review the clerk's action||clerk may tax costs on 14 days' notice - on motion served within the next 7 days, the court may review the clerk's action|
|55(b)(2)||Notice of Application for Default Judgment to Party that has Appeared in the Case||at least 3 days before the hearing||at least 7 days before the hearing|
|56(a)||Filing Motion for Summary Judgment by a Claiming Party||may file after 20 days from commencement of action or date opposing party serves its motion for summary judgment||can file at any time after commencement of action|
|56(c)||Time for Service, Response, and Reply of Motion for Summary Judgment||motion must be served 10 days before hearing; opposing party may serve opposing affidavits before the hearing day.||can file motion at any time until 30 days after the close of discovery; other party must file a response within 21 days after service; movant may file a reply within 14 days after service of response|
|59(b)||Filing Motion for New Trial||within 10 days after the entry of judgment||within 28 days after entry of judgment|
|59(c)||Service of Affidavits Opposing Motion for New Trial||within 10 days after service of motion||within 14 days after service of motion|
|59(d)||New Trial on the Court's Initiative||within 10 days after entry of judgment||within 28 days after entry of judgment|
|59(e)||Filing Motion to Alter or Amend a Judgment||within 10 days after entry of judgment||within 28 days after entry of judgment|
|62(a)||Automatic Stay Pending Execution of Judgment||cannot execute on a judgment until 10 days after its entry||cannot execute on a judgment until 14 days after its entry|
|65(b)(2)||Expiration of Temporary Restraining Order Issued without Notice||10 days||14 days|
|68(a)||Time Restrictions on Making and Accepting an Offer of Judgment||must make offer more than 10 days before trial - other party must accept within 10 days after service||must make offer more than 14 days before trial - other party must accept within 14 days after service|
|68(c)||Time Restrictions on Service of Offer of Judgment After Liability is Determined||must serve offer at least 10 days before hearing to determine damages||must serve at least 14 days before hearing to determine damages.|
|71.1(d)(2) & (e)||Service of Answer to Complaint for Condemning Real or Personal Property by Eminent Domain||may serve answer within 20 days of service of notice||may serve answer within 21 of service of the notice|
|72(a)||Filing Objections to the Magistrate's Pretrial Order||may serve and file objections within 10 days after service of copy order||may serve and file objections within 14 days after service of copy order|
|72(b)||Filing Objections to Magistrate's Findings and Recommendations Regarding Dispositive Motion||may serve and file objections within 10 days after service of Magistrate's findings, other party may respond within 10 days of service of objections||may serve and file objections within 14 days after service of Magistrate's findings, other party may respond within 14 days of service of objections|
|81(c)(2)||Time Period for Answer After Removal||if no answer was filed prior to removal, must answer within the longest of (A) 20 days after receiving initial pleading, (B) 20 days after service of initial pleading, or (C) 5 days after notice of removal filed||if no answer was filed prior to removal, must answer within the longest of (A) 21 days after receiving initial pleading, (B) 21 days after service of initial pleading, or (C) 7 days after notice of removal filed|
|81(c)(3)||Jury Demand After Removal||if all necessary pleadings are served prior to removal, can demand jury within 10 days after notice of removal||if all necessary pleadings are served prior to removal, can demand jury within 14 days after notice of removal|
Detailed summary of the changes:
On March 26, 2009, the Supreme Court of the United States approved various amendments significantly affecting the computation of time under the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure. The Supreme Court also approved several other amendments, and even a small number of new Federal Rules. In addition, on May 7, 2009, the President signed H.R. 1626, which amends twenty-eight statutory deadlines to make them consistent with the new time-computation amendments to the Federal Rules. Both the Federal Rules amendments and the statutory amendments will apply to all actions filed on or after December 1, 2009. This document summarizes all of the amendments, with a specific focus on changes to the Federal Rules of Civil Procedure.
The time-computation methods included in Appellate Rule 26, Bankruptcy Rule 9006, Civil Rule 6, and Criminal Rule 45 have been amended to make the computation of time periods straightforward, unambiguous, and more consistent. These amendments adopt essentially the same time-computation provisions for each set of Federal Rules, based on a “days are days” approach.
Under the current version of the Federal Rules, intermediate weekends and legal holidays are not included in the computation of most short time periods, but they are included in most longer time periods.1 This distinction is completely eliminated under the new amendments. Under the amended version of the Federal Rules, all days, including intermediate weekends and legal holidays, are included in the computation of any time period.2 If a deadline falls on a day when the clerk’s office is inaccessible (such as a weekend or legal holiday), then the deadline is automatically extended to the first accessible day.3
In order to accommodate this change in the time-computation method, the deadlines contained in the following rules have been amended:
- Appellate Rules 4, 5, 6, 10, 12, 15, 19, 25, 26, 27, 28.1, 30, 31, 39, and 41;
- Bankruptcy Rules 1007, 1011, 1019, 1020, 2002, 2003, 2006, 2007, 2007.2, 2008, 2015, 2015.1, 2015.2, 2015.3, 2016, 3001, 3015, 3017, 3019, 3020, 4001, 4002, 4004, 6003, 6004, 6006, 6007, 7004, 7012, 8001, 8002, 8003, 8006, 8009, 8015, 8017, 9006, 9027, and 9033;
- Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81; Supplemental Rules B, C, and G; and Illustrative Civil Forms 3, 4, and 60; and
- Criminal Rules 5.1, 7, 12.1, 12.3, 29, 33, 34, 35, 41, 45, 47, 58, 59, and Rule 8 of the Rules Governing §§ 2254 and 2255 Cases.
The majority of these amendments extend various short deadlines by one, two, or four days to offset the effect of including intermediate weekends and holidays in the calculation of time periods. However, some deadlines were lengthened substantially – such as the deadlines under Civil Rules 50, 52, and 59, which were extended from 10 to 28 days.
In addition to extending deadlines, the amendments altered most time periods of less than 30 days to multiples of seven (7, 14, 21, or 28 days), so that deadlines will usually fall on weekdays. The amendments also address the ambiguity regarding when a day “ends” for filing purposes. Under the amended version of the Federal Rules, a day “ends” for electronic filing at midnight in the court’s time zone, but a day “ends” for physical filing when the clerk’s office is scheduled to close.4
Some of the more notable deadline adjustments to the Federal Rules of Civil Procedure include:5
- Civil Rule 6(c) – A written motion and notice of the hearing must be served at least 14 days (currently 5 days) before the hearing. Any affidavit opposing the motion must be served at least 7 days (currently 1 day) before the hearing.
- Civil Rule 12(a)(1) – Service of an Answer to a Complaint, Counterclaim, or Crossclaim, or a Reply to an Answer, must be made 21 days (currently 20 days) after service.
- Civil Rule 15(a)(1) – A party may amend its pleading once as a matter of course within 21 days of serving it, or if a responsive pleading is required, within 21 days after service of the responsive pleading or a motion under Rule 12(b), (e), or (f) (currently, a party can amend as a matter of course before service of the responsive pleading, or within 20 days after service of the pleading if no responsive pleading is allowed).
- Civil Rule 56(a) – A plaintiff may move for summary judgment at any time after commencement of the action (currently, a plaintiff must wait at least 20 days after commencement of the action to file a motion for summary judgment).
- Civil Rule 56(c) – A party may move for summary judgment at any time until 30 days after the close of discovery, any party opposing the motion must file a response within 21 days after service of the motion, and the movant may file a reply within 14 days after the response is served (currently, a party must move for summary judgment at least 10 days before hearing, and opposing affidavits may be served before the hearing day).
Other Amendments to the Federal Rules
In addition to the time-computation amendments discussed above, the Supreme Court approved several other amendments to the Federal Rules.
Federal Rules of Appellate Procedure
Appellate Rule 4 was amended to make clear that an appellant is not required to amend a prior notice of appeal whenever the district court amends the judgment.
New Appellate Rule 12.1 was enacted, in conjunction with New Civil Rule 62.1, to allow a party to request an “indicative ruling” in the district court on a motion that the district court lacks authority to grant because of a pending appeal. Appellate Rule 12.1 facilitates remand to the district court of a ruling on the motion when the district court has indicated that the motion raises a substantial issue or that the district court would grant the motion if the court of appeals remanded for that purpose.
Appellate Rule 22 was amended to delete the requirement in a habeas corpus proceeding that the district judge either issue a certificate of appealability or state why a certificate should not issue. This requirement is now addressed in Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. §§ 2254 or 2255.
Federal Rules of Bankruptcy Procedure
Bankruptcy Rule 2016 was amended to correct a cross-reference.
Bankruptcy Rule 4008 was amended to require an entity filing a reaffirmation agreement to file a cover sheet that includes sufficient information for the court to determine whether the proposed reaffirmation agreement is presumed to be an undue hardship for the debtor.
Bankruptcy Rules 7052 and 9021 were amended, and New Bankruptcy Rule 7058 was enacted, to conform the Bankruptcy Rules to the “separate judgment rule” of Civil Rule 58. Under these amended and new rules, the separate-document requirement contained in Civil Rule 58 applies only to a judgment in an adversary proceeding and not to a judgment or order in other actions, including contested matters.
Bankruptcy Rules 9015 and 9023 were amended to set a 14-day deadline for filing certain postjudgment motions, which differs from the 28-day deadline in the Civil Rules that would otherwise apply.
Federal Rules of Civil Procedure
Civil Rule 13 was amended to delete subdivision (f), which set out standards for amending pleadings to add a counterclaim, because it was redundant of Civil Rule 15.
Civil Rule 48 was amended to require the court to poll the jury when requested by a party, and also permits the court to poll the jurors sua sponte.
New Civil Rule 62.1 was enacted, in coordination with New Appellate Rule 12.1, to allow a party to request an “indicative ruling” from the district court on a motion that the district court lacks authority to grant because of a pending appeal. The district court may defer ruling on the motion, deny the motion, state that it would grant the motion if the court of appeals remands, or state that the motion raises a substantial issue.
Civil Rule 81 was amended to clarify the definition of “state” to include not only the District of Columbia, but also any United States commonwealth or territory.
Federal Rules of Criminal Procedure
Criminal Rule 7 was amended to delete subsection (c)(2) related to forfeitures because it is more appropriately located in Criminal Rule 32.2.
Criminal Rule 32 was amended to require a presentence report to state whether the government is seeking forfeiture.
Criminal Rule 32.2 was heavily amended to restructure criminal forfeiture proceedings.
Criminal Rule 41 was amended to add a provision for the issuance of a warrant seeking electronically stored information.
Rules 11 and 12 of the Rules Governing § 2254 Cases, and Rule 11 of the Rules Governing § 2255 Cases were amended to consolidate and clarify the requirements for certificates of appealability in habeas corpus proceedings. The amendments require the district court to rule on the certificate of appealability when a final order is issued, rather than after a notice of appeal is filed.
The Statutory Time-Periods Technical Amendments Act of 2009 amends federal bankruptcy, criminal, and civil law, as well as the Classified Information Procedures Act and the Controlled Substances Act, to extend specific deadlines affecting court proceedings from 5 to 7 days, and from 10 to 14 days, including holidays and weekends. These amendments were merely intended to harmonize federal statutes with the recent time computation amendments to the Federal Rules.
1 See Fed R. Civ. P. 6(a)(2).
2 See, e.g., Amended Fed. R. Civ. P. 6(a)(1)(B).
3 See, e.g., Amended Fed. R. Civ. P. 6(a)(3).
4 See, e.g., Amended Fed. R. Civ. P. 6(a)(4).
5 See attached spreadsheet entitled "Deadline Amendments to the Federal Rules of Civil Procedure – Effective 12/1/09" for a complete review of the deadline adjustments to the Civil Rules.