Posted: May 30, 2008
Rules of Civil Procedure
URCP 006. Time. Repeal and reenact. Conforms the computation of time to the days-are-days approach of the Federal Rules of Civil Procedure. Deadlines of less than 30 days in several rules will be extended to a uniform 7/14/21 days. The list of deadlines proposed to be amended is attached. If Rule 6 is approved, those rules will be amended to change the deadlines as indicated, but the rules will not be published for comment. Deadlines not listed are not proposed to be amended.
List of Deadline Changes in Conjunction with New Rule 6.
My only comment on the proposed URCP Rule 6 change is that I have to wonder why it took so long to be proposed in the first place (and why did the rules committee force us to suffer under the old Rule 6 for so long? Heads should roll). Kudos to the committee for adopting the far more clear and understandable and manageable days-are-days approach. There is simply no reason to keep Rule 6 as it is and no reason not to adopt and welcome the proposed revision.
I don’t see how this proposed Rule “conforms” to Federal Rule of Civil Procedure 6. The two Rules look materially different.
Why would any proposed change to Rule 6 drop the three additional days after service by mail and the allowance that any period of time under ten days allows for not counting Saturdays, Sundays, and legal holidays? Federal Rule 6 has these provisions.
Under this proposed Rule, an attorney could file an opposition brief on a Thursday before a three day weekend, and the attorney replying could wind up with one or two days to reply.
I notice that the drafter has taken pains to convert the count in every case to a multiple of seven days (which makes things much simpler to count on a calendar, as one need only count week to week down the matrix: e.g., Thursday to Thursday to Thursday = 14 days). I was surprised, therefore, to see the three-month count converted to 90 days. If we want uniformity, it should be 91 days, which is 13 weeks.
With the 90-day rule, one must go down the calendar 13 weeks and then subtract a day. If we are trying for the efficiency of calendar counting, why not make it uniform? It will reduce the number of errors and spare clerks, secretaries, assistants, and paralegals the need to count and recount ninety days instead of 13 weeks; and it will reflect better the original notion, since 7 of the 12 possible three-month periods in a year are actually 92 days long (only 2 are always 91 days long; 2 more are 90 or 91 days long depending on February; and one is either 90 or 89 days long … (that averages about 91.4 days).
Is the provision for “Additional time after service by mail” repealed altogether or does it appear elsewhere in the rules?
I am opposed to the new rule. It seems antiquated to develop a rule that does not take into account the growing use of electronic transmission of all kinds. Moreover, it seems that if we are going to change the rule, we should change it to make it simpler and reduce the number of periods of time that apply to various actions. For instance, why not make a rule that has two time periods: 15 days and 30 days. That is more similar to the Federal rules time periods.
In any case, I am opposed to this rule that does not account for the difference between electronic and snailmail gtransmission.
I am revising my earlier comment opposing the rule change, based on further understanding. I understand that the new rule is intended to track coming changes in the Federal rules. That being the case, I think it would be wise to wait for a while to see how the Federal rules work out. While the goal of harmony with the Federal rules is admirable, there are instances where the Federal rules cause more problems than they solve (Daubert, for instance) and a period of reflection on the actual effect of the rule change is salutary. After all, there is no harmony now between the Federal and state rules on time calculation, so a longer period of disharmony will not be as much of a burden as making a change in two rules and finding the change was ill-advised.
The rule change as to the 5 day time period for responding actually reduces the time significantly by eliminating weekends and the 3 day period for mailing. I strongly oppose this change. My recommendation would be to have all of the 5 day response times change to 10 days instead of 7.
The rule change as to the 5 day time period for responding actually reduces the time significantly by eliminating weekends and the 3 day period for mailing. I strongly oppose this change. My recommendation would be to have all of the 5 day response times change to 10 days instead of 7.
The “days are days” comment fails to recognize that certain days (Saturdays, Sundays, Holidays) are different – attorneys may not be working, mail is not delivered on Sundays and Holidays (as previously noted, a document could be mailed {for example, from Salt Lake City to St. George} on a Thursday and not be delivered until Tuesday after a three-day Holiday weekend and a response would be due just 2 days later!
I don’t see the problem with the current rule – has someone in the Rules Committee recently had a problem with the 3-day mailing rule or with ignoring Saturdays, Sundays, and Holidays?
Obviously, the 3-day mailing rule was put in for a reason! Has that reason changed? It seemed like a sound rule to me – time should be allowed for the time it takes a motion, etc. to be delivered!
What about not counting Saturdays, Sundays, and Holidays – those days are not counted because they are not considered “working days” (the Courts are closed on those days); are we, now, requiring everyone to work through the weekends and on Holidays?
If it ain’t broke, don’t “fix” it!
The current rule has been working fine!
Currently, Rule 3(a) requires that a Complaint be filed within 10 days from the date of service. And according to Rule 4(c)(2), a defendant may call the court AFTER 13 days to determine whether a Complaint has been filed. The reason for those extra three days is so that adverse courthouse paperwork processing will be less likely to affect the rights of the defendant, and so that the defendant will not be given incorrect information in case the Complaint has been filed with the court, but not yet entered into the computer system.
If Rule 3(a) is changed to allow filing of a Complaint within 14 days after service, Rule 4(c)(2) needs to give a correspondingly greater period of time after which it would be reasonable to assume the Complaint (if it is going to be filed) WILL be filed with the court. 14 days is not enough, if that is also the last day for the Plaintiff to file the Complaint. I can appreciate that 21 days may feel like too long . . . but this would seem to me to be a valid issue. Maybe not every time period can be (or should be) conformed to multiples of 7.
Although, if this rule is adopted as-is, I agree with the comment from Scott M Ellsworth that the three-month count should be converted to 91 days (13 weeks), not 90 days.
The 3-day time period for mailing needs to be retained because it is used in connection with counting other time periods in statutes and contracts. See, e.g., Utah Code Ann. § 31A-21-303(2)(e)(iii) (“(iii) If the notice required by this Subsection (2)(e) is sent by first-class mail, postage prepaid, to the insured at the insured’s last-known address, delivery is considered accomplished after the passing, since the mailing date, of the mailing time specified in the Utah Rules of Civil Procedure.”).
Dropping the time period for mailing is tantamount to rewriting at least one statute and eliminating substantive rights protected under the statute. That’s neither a good idea nor constitutional.
I’m also concerned about the removal of the additional three days for mailing. The local federal court has allowed us (thus far) to continue adding three days even for eletronic filing. If we must get rid of the additional three days, I don’t think we should do so until we fully implement electronic filing.
As we can see from many of the comments, eliminating the 3-day extension for mailing and counting weekends and holidays, effectively reduces the response period under various circumstances. If that is the intent of the changes, then I will expect to see an increase in the number of requests for extensions, which will defeat the purpose and lend nothing to clarity.
We should not get rid of the mailing days until there is electronic filing.
The days-are-days approach only makes sense if electronic filing is also made mandatory (and I believe it should be, the sooner the better). Without mandatory electronic filing, I am troubled by removal of the 3-day mailing extension. Also, I agree with Mr. Ellsworth’s May 30 comment explaining that it makes more sense to use 13 weeks instead of 90 days. Further, I strongly recommend that this rule only be changed once in the next several years (i.e., don’t change now, and then change again next year after electronic filing). For this reason, I concur with Mr. Newhall that it might be wise to wait to make any change.
The proposed changes in rule 6 to eliminate additional time for service by mailing and requiring filing by due date are completely unworkable given the slow delivery of mail in St. George. Just last week I received from a lawyer in St. George an opposition to a motion for summary judgment late on a Friday afternoon. From the date of mailing to the date of arrival in our office was a five full days. My reply brief was due I believe the following Thursday. I did have a weekend to work on it however. Under the proposed rule change I would have received the document on a Friday afternoon and my reply brief would have been due the following Monday.
In tracking the Federal rules changes you have neglected a very important difference in the two systems. We can file and serve documents electronically in Federal Court and we do that in several cases with great success and efficiency. We do not have electronic filing in St. George. In St. George the clerks are in such short supply (legislature’s lack of funding I understand) they cannot even give us conformed copies for at least four or five days after we file documents. We obviously don’t have electronic filing here nor is it foreseen as far as I know. Heaven forbid that anyone should mail a filing to Washington County District Court. They will not know whether the mail arrived in time and the document got filed for another week while the clerks get around to the backlog. I suggest you wait to make the rules changes until electronic filing has become a reality for the entire state.
The proposed changes in rule 6 to eliminate additional time for service by mailing and requiring filing by due date are completely unworkable given the slow delivery of mail in St. George. Just last week I received by mail from a lawyer in St. George an opposition to a motion for summary judgment late on a Friday afternoon. From the date of mailing to the date of arrival in our office was a five days. My reply brief was due I believe the following Thursday given three days mailing. Under the proposed rule change I would have received the document on a Friday afternoon and my reply brief would have been due the following Monday.
In tracking the Federal rules changes you have neglected a very important difference in the two systems. We can file and serve documents electronically in Federal Court and we do that in several cases with great success and efficiency. We do not have electronic filing in St. George. In St. George the clerks are in such short supply (legislature’s lack of funding I understand) they cannot even give us conformed copies for at least four or five days after we file documents. Heaven forbid under the proposed new rules that anyone should mail a filing to Washington County District Court. The filing party will not know whether the mail arrived in time and the document got filed for another week while the clerks get around to the backlog. I suggest you wait to make the rules changes until electronic filing has become a reality for the entire state.
Bryce Dixon
The 3-day extension for mailing should be continued because without it, the 5-day deadlines would run too quickly. The current rule should be modified in a different way. Delivery by fax is the same as hand delivery in terms of how fast it arrives. This gives a no-cost option for reducing the time to respond that has the same practical effect as paying a runner to deliver the document, while still allowing sufficeint time to respond. The rule should state that three days will be added if it is mailed, but delivery by fax is the equivalent of hand delivery and is considered to have been delivered on the day it is faxed if faxed before 5:00 p.m. I also think the rule on filing a document with the court by mail should be clarified. Is a pleading considered timely if it is mailed prior to the due date? Or must it be in the clerk’s office as of the due date?
My position is similar to those previously stated because of the following hypothetical: party A submits a motion and calendars 14 days on which party B must respond. On day 14, party B places a memorandum of opposition in the mail box. At the same time, because party A is yet to receive any response, party A, therefore, mails a Request to Submit for Decision, on that same day, to the Court.
My question is how do the rules of procedure treat this situation? My understanding is that with the current three additional days for mailing rule would require party B to mail the memorandum of opposition three day prior to the end of the 14 days. This point is made frequently below, i.e. that there is a substantial difference between mailing and electronic transmission. I argue there needs to be a corresponding revision of rule 5(b)(1)(B).
Does Section (b) contemplate that all extensions of time must be granted by the Court? Part of what makes Utah a much more pleasant place to practice is that we can give each other flexibility in responding to accomodate both personal needs (vacations, illnesses) and case needs (permitting time to respond to explore settlement). I would hate to think that the new rule would require us to bother the Court each time we wanted to give or receive an additional couple of days to respond to a motion. I cannot imagine that our judiciary would want to be burdened with reviewing every request for additional time either.
I agree with much of what has been posted in opposition to the adoption of the proposed changes. The most significant reasons to oppose the proposal:
1. The changes would allow for gamesmanship – i.e. filing/mailing an opposition memorandum on a Thursday afternoon to give opposing counsel only one, perhaps two, days to respond.
2. The coming adoption of electronic filing (it will happen at some point) will require further changes to the rules. Why adopt these changes when we know further amendments will be needed in just a few years.
3. Until electronic filing is fully implemented (and perhaps even then), the three-day mailing rule is necessary to prevent parties from being prejudiced by the whims and vagaries of the USPS.
4. What’s the impetus for the proposal? Is there a need for these changes? Are parties being prejudiced by the current system?
I will add my name to the list of attorneys that oppose the proposed changes to Rule 6. As has been previously stated, in many cases the lack of an allowance for mailing would substantially reduce time periods and create an undue rush to respond.
It is a good idea to change the rules to account for the speed of electronic filing and under those circumstances it is appropriate to eliminate the non-existent mailing period. However, the rules should continue to recognize the reality that a delay does exist for regular mail and an appropriate time allowance should be given.