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North Dakota Rules of Civil Procedure

Rule 6

Computing and Extending Time; Time for Motion Papers

(a) Computing Time. The following rules apply in computing any time period specified in these rules, or in any local rule, court order, or statute that does not specify a method of computing time.
(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.
(2) Period Stated in Hours. When the period is stated in hours:
(A) begin counting immediately on the occurrence of the event that triggers the period;
(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and
(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.
(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible:
(A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or
(B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.
(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:
(A) for electronic filing, at midnight in the court’s time zone; and
(B) for filing by other means, when the clerk’s office is scheduled to close.
(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
(6) “Legal Holiday” Defined. As used in this rule, “legal holiday” means a day set aside as a holiday under N.D.C.C. §§ 1-03-01, 1-03-02 and 1-03-02.1.
(b) Extending Time.
(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time;
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.
(2) Exceptions. A court cannot extend the time to act under Rules 4(e) (7), 50(b) and (d), 52(b), 59(i) and (j), and 60(b).
(c) [Rescinded]
(d) Motions and Notices of Hearing.
(1) In General. If an evidentiary hearing is requested, the written motion and notice of the motion must be served at least 21 days before the time specified for the hearing, with the following exceptions:
(A) when the motion be heard ex parte;
(B) when these rules set a different period; or
(C) when a court order–which a party may, for good cause, apply for ex parte–sets a different period.
(e) Additional Time After Service Made by Mail or Third-Party Commercial Carrier.
(1) Whenever a party must or may act within a prescribed period after service and service is made by mail or third-party commercial carrier under Rule 5, three days are added after the prescribed period would otherwise expire under N.D.R.Civ.P. 6(a).
(2) If service is made by mail or third-party commercial carrier under Rule 4, the prescribed period begins running upon delivery.
Credits

[Amended effective March 1, 1990; March 1, 1992; January 1, 1995; March 1, 1997; March 1, 1999; March 1, 2001; March 1, 2004; March 1, 2007; March 1, 2009; March 1, 2011; March 1, 2014; March 1, 2016; March 1, 2018.]

Explanatory Note

Rule 6 was amended, effective 1971; March 1, 1990; on an emergency basis, March 1, 1992; January 1, 1995; March 1, 1997; March 1, 1999; March 1, 2001; March 1, 2004; March 1, 2007; March 1, 2009; March 1, 2011; March 1, 2014; March 1, 2016; March 1, 2018.

Rule 6 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Subdivision (a) was amended, effective March 1, 2011, to simplify and clarify the provisions that describe how deadlines are computed. Under the previous rule, intermediate weekends and holidays were omitted when computing short periods but included when computing longer periods. Under the amended rule, intermediate weekends and holidays are counted regardless of the length of the specified period.

Subdivision (a) was amended, effective March 1, 2018, to add a new paragraph (a)(6) defining “legal holiday”.

Paragraph (b)(2) was amended, effective March 1, 2011, to clarify that there can be no extension of the times set by provisions in Rules 4(e)(7), 52(b), 59(i) and (j), and 60(b).

Paragraph (b)(2) was amended, effective March 1, 2014, to add a reference to Rule 50(b) and (d) and to delete a reference to Rule 50(c).

Subdivision (d) was amended, effective March 1, 1997, because Rule 3.2, N.D.R.Ct., governs when papers supporting or opposing a motion must be served.

The March 1, 2001 amendment changed from 14 to 18 days when a motion must be served before it may be heard.

Paragraph (d)(1) was amended, effective March 1, 2011, to change from 18 to 21 days when a motion must be served before the time specified for the hearing.

Paragraph (d)(1) was amended, effective March 1, 2016, to clarify that, if an evidentiary hearing is requested, the written motion and notice of motion must be served 21 days before the time specified for the hearing.

Subdivision (e) was amended, effective March 1, 1999, to make the three-day extension for service by mail applicable when service is via third-party commercial carrier. The proof of service must contain the date of mailing or deposit with the third- party commercial carrier.

Subdivision (e) was amended, effective March 1, 2004, to restrict applicability of the three-day extension for service by mail or third-party commercial carrier to items served under Rule 5. The time of service for an item served by mail or third-party commercial carrier under Rule 4 is the time the item is delivered to or refused by the recipient.

Subdivision (e) was amended, effective March 1, 2007, to clarify how to count the three-day extension for service by mail or third-party commercial carrier. Under the amendment, a party that is required or permitted to act within a prescribed period should first calculate that period, without reference to the 3-day extension, but applying the other time computation provisions of these rules. After the party has identified the date on which the prescribed period would expire but for the operation of subdivision (e), the party should add 3 calendar days. The party must act by the third day of the extension, unless that day is a Saturday, Sunday, or legal holiday, in which case the party must act by the next day that is not a Saturday, Sunday, or legal holiday.

Subdivision (e) was amended, effective March 1, 2018, to remove service by electronic means from the modes of service that allow three added days to act after being served. Electronic service after business hours, or just before or during a weekend or holiday, may result in a practical reduction in the time available to respond. Extensions of time may be warranted to prevent prejudice.

Sources

Joint Procedure Committee Minutes of April 27, 2017, pages 5-7; January 26-27, 2017, pages 28-29; April 23-24, 2015, page 6; January 29-30, 2015, pages 17-19; September 26, 2013, page 11; April 25-26, 2013, pages 26-27; April 29-30, 2010, pages 4-5; April 24-25, 2008, January 24, 2008, page 15; page 21; April 27-28, 2006, pages 6-7; January 26, 2006, page 11; January 30-31, 2003, pages 4-6; September 26-27, 2002, pages 15-18; January 27-28, 2000, pages 16-17; September 23-24, 1999, pages 20-21; January 29-30, 1998, page 18; April 25, 1996, pages 8-11; April 28-29, 1994, pages 15-17; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, page 20; November 7-8, 1991, page 3; October 25-26, 1990, page 12; April 20, 1989, page 2; December 3, 1987, page 11; June 22, 1984, pages 30-31; September 20-21, 1979, pages 5-6; Fed.R.Civ.P. 6.

Statutes Affected

CONSIDERED: N.D.C.C. ch. 1-03.

Cross References

N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction Process Service), N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers), N.D.R.Civ.P. 52 (Findings by the Court), N.D.R.Civ.P. 59 (New Trials Amendment of Judgments), N.D.R.Civ.P. 60 (Relief From Judgment or Order); N.D.R.Crim.P. 45 (Time); N.D.R.Ct. 3.2 (Motions).