M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 45, N.D.R.Crim.P.; Rule 26, N.D.R.App.P.; Time Computation
At the last meeting, the Committee approved an amendment to N.D.R.Civ.P. 6. The amendment extends the period from 7 days to 11 days during which Saturdays, Sundays and legal holidays are excluded from time computations. The amendment follows Fed.R.Civ.P. 6, which was amended, effective August 1, 1985, to change the period from 7 days to 11 days.
When approving the amendment, the Committee noted, generally, under N.D.R.Ct. 3.2, 10 days are allowed for responding to a motion. If Saturdays, Sundays, and legal holidays are included in the time computation, a party may not have a sufficient number of work days to respond.
As a result of the Committee's action, an additional amendment may be needed. Currently, N.D.R.Civ.P. 6(d) and N.D.R.Crim.P. 45(d) provide for service of a motion at least 14 days before the motion may be heard. Fourteen days are required to allow 10 days for service of an answer brief under N.D.R.Ct. 3.2, 3 days for service by mail under N.D.R.Civ.P. 6(e) and N.D.R.Crim.P. 45(e), and 1 day for filing in advance of the hearing under N.D.R.Civ.P. 5(d)(2) and N.D.R.Crim.P. 45(d). Should the 14 day period also be lengthened if intermediate Saturdays and Sundays are no longer included in the 10 days for responding to a motion? If a motion is heard 14 days after service, the respondent will not have been allowed the time provided by the rules for preparation of an answer brief. Lengthening the 14 day period to 18 days would allow for four Saturdays, Sundays, and legal holidays to be excluded from the time computations.
At the last meeting, the Committee instructed staff to prepare similar amendments to the rules of criminal procedure and appellate procedure. The Committee also suggested the Explanatory Note to Rule 3.2 should reflect the change in the time computation. Following are the amendments for the Committee's consideration.