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By: Randi-Lynn Smallheer, Lexis Practice Advisor
As the novel coronavirus outbreak forces people around the world to suspend business as usual, litigators still face deadlines, whether imposed by a judge, a set of rules, or a statute. This article describes how to compute time periods in federal court litigations under Rule 6 of the Federal Rules of Civil Procedure1 (Federal Rules), and how to get those time periods extended.
SPECIFICALLY, THIS ARTICLE DISCUSSES DETERMINING THE length of your time period; identifying your trigger event; computing time periods measured in hours, days, or longer periods; extending time periods for service by mail; extending time periods by stipulation or court order; and strategic considerations.
The first step to extending a deadline is determining exactly when the deadline falls. Civil litigation is characterized by a dizzying array of deadlines that emanate from a variety of sources, including:
These sources typically express deadlines as a certain number of hours, days, months, or years running from or to an event, such as a complaint filing or a court hearing. Deadlines can be forward-looking or backward-looking:
To properly calculate your deadline, you will need to:
The Federal Rules establish dozens of procedural time limits, including filing and service deadlines. In most cases, you should consult the Federal Rules first to determine your applicable time limit.
The most critical statutory deadlines are statutes of limitations. These deadlines limit the period within which you may bring a wide variety of legal causes of action. If you miss a statute of limitations deadline, your client may be barred from bringing that claim, and you may face discipline or a malpractice suit.
To properly compute your deadline, you must precisely identify your trigger event. This is critical for you to correctly determine when your applicable time limit begins or ends.
For forward-looking deadlines, identify the event that starts the time period, such as your adversary serving you with a complaint or discovery requests. In these circumstances, the service date is your trigger event date. For statute of limitations purposes, the trigger event date is typically the date the cause of action accrues (e.g., the date on which the events underlying the plaintiff’s claims occurred). For certain specific types of causes of action, such as fraud, the trigger event date is the date the plaintiff learned or should have learned of the alleged wrong.3 To ensure you do not miss a statute of limitations deadline, be sure to use the earliest possible accrual date as your trigger event date when computing the limitations period.
Use your trigger event date to count forward to determine the applicable forward-looking deadline. For example:
Your adversary will typically serve a certificate of service along with any papers he or she is serving. Unless the service date in the certificate of service is obviously incorrect, you should treat the identified service date as your trigger event date.
For backward-looking deadlines, identify the event that ends the time period, such as a trial or hearing date. Use that event date to count backwards to determine your deadline. For example:
Rule 6 sets forth the basic rules for counting a time period’s length in federal court civil litigations. Consider the following when counting your applicable period:
Under Rule 6(a))6) of the Federal Rules,8 legal holidays include:
The Federal Rules do not explicitly address how to calculate backward-looking deadlines. To avoid any timing issues, you should assume the same rules apply counting backwards as counting forwards. If the first day is a weekend day or a legal holiday, keep counting backwards until you arrive at a non-holiday weekday.
Whenever possible, have another legal professional independently verify your calculation—you can never be too careful with respect to calendaring a deadline. If you have questions about a filing deadline, consider calling the clerk of court. When an important deadline is ambiguous or unclear, never make assumptions.
It is necessary to calculate your time period only when a statute, the Federal Rules, a court order, or a similarly authoritative source requires you to perform an act within a particular number of days. If a court instead orders you to file papers on a date certain, Rule 6’s calculation provisions do not apply.9
Under Rule 6 of the Federal Rules, you can extend most deadlines in one of three ways:
Automatic Extensions for Service by Mail
After service of process is complete, the Federal Rules generally authorize service of subsequent documents only by:
Service by mail triggers an automatic three-day extension of your applicable time period.12 This automatic extension applies only when service starts the recipient’s time to perform a future act. For example, serving a document request on a party triggers the start of that party’s 30-day response period. In this example, the party’s response period is automatically extended by three days if the propounding party serves the requests by mail.13
Be aware that the automatic three-day extension applies only to service by mail. If your adversary effectuates service by hand delivery, overnight delivery, or electronic transmission, the Federal Rules do not automatically extend your time period.
Parties can—and frequently do—agree to extend most deadlines without prior court permission. In practice, attorneys often consent to extensions of time that the court would ordinarily grant, such as extensions for:
However, do not expect opposing counsel to save you from expired deadlines that are fatal to your case, such as a statute of limitations deadline.
If all parties agree to your extension request, you should prepare a written stipulation containing all the terms of your agreement, including:
Counsel for all parties should promptly sign the stipulation. The Federal Rules generally do not require court approval of a stipulation unless the requested extension will interfere with:
As a practical matter, many attorneys file stipulations extending time with the court even if the extension will not interfere with a court-imposed discovery completion, hearing, or trial date. Be sure to consult your court’s applicable local rules and your judge’s individual rules and standing orders to determine if the court imposes any specific requirements for filing or approving your stipulation.
With some exceptions, Rule 6 authorizes the court to extend deadlines. If your deadline has not expired, Rule 6 allows the court, in its discretion, to extend the period with or without a motion or notice.
If the period has already expired, you must file a motion for an extension and show excusable neglect. To establish excusable neglect, you must show some reasonable basis for not complying with the deadline.15 In assessing this, the court will consider:
Courts frequently grant extension requests, such as for filing an answer beyond the prescribed time limit. However, if you fail to serve a defendant with process within 90 days after the complaint filing (as Rule 4 requires), you risk potential dismissal of your case.17 Courts can and often do dismiss cases for failure to meet this deadline absent a showing of good cause.18
Rule 6 does not govern all deadline extensions. The rules noted below exclusively govern extensions of deadlines for the following litigation events:
When you want to extend a deadline under one of these rules, consult the rule itself for guidance.
As soon as you learn of an event that requires you to meet a deadline, use the process described above to immediately:
You may also want to calendar intermediate dates to warn you that the actual deadline is approaching. For example, you could set a calendar reminder for one week before your filing deadline.
If possible, start working immediately to meet the deadline. Doing so minimizes the risk of other obligations impeding your ability to meet the deadline.
As soon as you recognize that you will need a deadline extension, take steps to secure one, whether by agreement with opposing counsel or by court order. Make every attempt to secure an extension before the original deadline passes; your chances for an extension drop if your time period has already expired.
If opposing counsel asks you to extend a deadline, you should consent unless it would substantially harm your client’s interests. Do not attempt to use procedural deadlines to gain an advantage. If the court becomes involved, the judge may perceive you as wasting the court’s time on a petty dispute. Also, keep in mind that later in the litigation you may have to request an extension from the very adversary whose extension request you refused.
Be sure to build in ample time for any ministerial tasks you must complete before filing or service, such as obtaining a check request for any filing fees or arranging for a messenger service to hand delivery your papers. Try to coordinate filing and service logistics well in advance of your deadline.
Randi-Lynn Smallheer is a Content Manager for the Lexis Practice Advisor Civil Litigation team. In this role, Randi-Lynn helped launch Civil Litigation’s New York jurisdictional content and currently focuses on expanding the practice area’s existing arbitration and federal and state litigation content. Randi-Lynn brings to LexisNexis 18 years of legal experience as a seasoned litigator in federal and state court working at various national and local law firms, including Proskauer Rose, LLP.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Civil Litigation > General Litigation > Practice Notes
For an overview of practical guidance on the novel coronavirus (COVID-19) covered in many practice area offerings in Lexis Practice Advisor, see
> CORONAVIRUS (COVID-19) RESOURCE KIT
RESEARCH PATH: Civil Litigation > Trends & Insights > Practice Notes
For a look at the basic structure of the federal court system, see
> FEDERAL COURT SYSTEM OVERVIEW (FEDERAL)
For a discussion of how to determine which law—federal or state—a federal court will apply, see
> PROCEDURAL AND SUBSTANTIVE RULES: UNDERSTANDING THE DIFFERENCE (FEDERAL)
For a discussion of the factors to consider in deciding where to file—federal or state court, see
> STATE VS. FEDERAL COURT (FEDERAL)
For guidance on computing time periods in federal court litigation, see
> COMPUTING TIME IN LITIGATION CHECKLIST (FEDERAL)
RESEARCH PATH: Civil Litigation > General Litigation > Checklists
For a chart that identifies common deadlines under the Federal Rules of Civil Procedure, see
> DEADLINES IN CIVIL LITIGATION CHART (FEDERAL)
1. Fed. R. Civ. P. 6 2. See Fed. R. Civ. P. 26(a)(1)(C). 3. See CBD & Sons, Ltd. v. Setteducati, 2019 U.S. Dist. LEXIS 15489 (D.N.J. Jan. 31, 2019); Garcia v. GM LLC, 2019 U.S. Dist. LEXIS 8678 (C.D. Cal. Jan. 17, 2019). 4. See Fed. R. Civ. P. 6(a)(4)(A). 5. See Fed. R. Civ. P. 6(a)(4)(B). 6. See Fed. R. Civ. P. 6(a)(1). 7. See Fed. R. Civ. P. 6(a)(2). 8. Fed. R. Civ. P. 6(a)(6). 9. See Fleischhauer v. Feltner, 3 F.3d 148 (6th Cir. 1993). 10. See Fed. R. Civ. P. 6(b), 6(d). 11. See Fed. R. Civ. P. 5(b)(2). 12. See Fed. R. Civ. P. 6(d). 13. See Fed. R. Civ. P. 6(d). 14. See Fed. R. Civ. P. 29(b). 15. See Lopez v. Delta Int’l Mach. Corp., No. 15-0193, 2017 U.S. Dist. LEXIS 114656 (D.N.M. July 24, 2017). 16.See Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P’ship, 507 U.S. 380, 395 (1992). 17. See Fed. R. Civ. P. 4(m) 18. See Sene v. MBNA Am., Inc., 2005 U.S. Dist. LEXIS 20786 (D. Del. Sept. 20, 2005).