What is the applicable authority? It seems simple enough, but knowing and finding the proper authority can be a catch-22. You have to understand what you are looking for to search for it. Is it a code of civil procedure section or rules of court section? Maybe the federal rules of civil procedure, a standing order, a local rule set, or some mix of these? If you know what you need, finding it online is usually not too difficult, but how do you know where to start? This section will put this information at your fingertips, at least for a starting point, so you can get to searching for the proper authority more quickly.
Many rule sets (State and Federal) relating to how you count are consistent with the Federal Rules of Civil Procedure, Rule 6, which states in relevant part:
(a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any 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.
Knowing whether a calculation is court days (aka business days) or calendar days is critical. Sometimes a rule will say x number of “court days,” or x number of “calendar days,” other times, the rule says x number of “days.” The question then does this mean court or calendar days. Sometimes there is a general rule which states that if the number of days being counted is ten or less, seven or less, or some such number, then use court days, otherwise use calendar days.
“Rolling” refers to what to do if a date calculation lands on a weekend or holiday. There are three essentials things to consider
-When to roll
-Which way to roll
-How far to roll
When to roll is a common source of confusion and error, primarily when service affects the calculation, especially for practitioners who practice in both Federal and State courts. There are two ways of answering the when to roll question: one we refer to as the Federal way, and the other we refer to as the California way.
The critical language defining the federal way comes from FRCP 6 (d), which states in relevant part, “3 days are added after the period would otherwise expire”. This means that if a rule requires 30 days to respond, and counting 30 days lands on a holiday or weekend, the extra three days are not added until the 30 day period would otherwise expire, which means roll to the next business day. If 30 days lands on a Saturday, and Monday is a holiday, the 30 days would not “expire” until Tuesday, and the three days would be added from there, not the Saturday. In California (and other states), California Code of Civil Procedure section 1013(a) states, in relevant part, “…any period of notice and any right or duty to do any act or make any response within any period…shall be extended five calendar days…”. Under this rule, the calculations get added instead of counting 30 days and evaluating for expiring (rolling), so a straight 35 days can be counted.
We also refer to the federal way as count-roll-count-roll and the California way as count-count-roll. Some states follow the federal way, and some states follow the California way.
Knowing which way to roll is critical to every calculation. There are three options:
-Roll forward to the next day,
-Roll backward to the previous day
Knowing how far to roll is also critical. The rules vary widely from state to state and even from trigger to trigger within a particular court.
While this may seem like three simple things; “rolling” is one of the leading causes of date calculation confusion and mistake.
Service offsets describe the rules relating to how much time is added for different service methods and when the time is added. Service offsets are added in 3 different ways:
-Before the calculation
-Added directly to the calculation
-Added after the calculation and any roll if the calculation lands on a weekend or holiday (would otherwise expire).
-Mail Outside State
Some states let courts set individual holiday schedules, so from county to county, the holidays can vary, and in other states, every county observes the same holidays.
Every court in the country observes the following holidays:
-New Year’s Day
-Many, but not all, also observe the Friday after Thanksgiving.
These three areas tend to lead to confusion about what triggers what. For example, is an opposition to a motion due based on the hearing date or the date the motion was served. Sometimes, both dates create different deadlines, and both triggers need to be used; other times, just one date or the other is relevant.
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