Computing Time in Federal Court

Rule 26, Computing Time.

Rule 26 provides as follows:

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; 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.

Example Counting “Backward.”

Let us say you want to bring a noticed motion. First, you proceed to set a hearing date with the court. The “triggering event” is the hearing date. In federal court, a notice of motion must be filed and served not later than 28 days (31 days if by mail) before the hearing date. Therefore, in order to calculate when your moving papers are due, count backwards 28 days (or 31) from the hearing date.

If when counting backwards your count lands on a non-business day (Saturday, Sunday, or a legal holiday), keep counting in the same direction until you reach a business day. That is your deadline.

Example Counting “Forward.”

Let us say you are serving a complaint. The “triggering event” is the service date of the complaint. To determine when an answer to the complaint is due, count the days forward.  If when counting forwards your count lands on a non-business day (Saturday, Sunday, or a legal holiday), keep counting in the same direction until you reach a business day. That is your deadline.

For Electronic Filers.

For electronic filing, the last day ends "at midnight in the court's time zone."

Traps for the Unwary.

Be careful with non-business days, especially when “counting backwards.” For example, opposing party has filed and served a motion against you and has calendared the hearing date (“triggering event”) so that the due date for your responsive pleading, which must be filed and served not later than 21 days before the hearing date, falls on a non-business day.

In our example, let us assume that in counting backwards 21 days from the hearing date, your count lands on a Sunday, which is a legal holiday, So is Saturday, and let's further assume that Friday is July 4, which is a legal holiday, as is July 3. As you keep counting backwards until you reach a business day, which in this example would be July 2, in so doing you have “lost” four days out of the seven days you have to respond to the motion.

If you are responding to a dispositive motion, you may have to scramble to get it done. You can ask the court for relief, but you don't always get it.