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Doing Federal Time
by Michael P. Murphy
The time period for responding to pleadings is often different in state court than in federal court. Compare, e.g., Ill. S. Ct. R. 101 with Fed. R. Civ. P. 12(a)(1)(A). When a case is filed or pending in federal court, counsel must be wary of shorter deadlines to respond to pleadings and must avoid calendaring their likely more often used state court time periods. The following is a review of critical federal court time limits and the method of calculating due dates in federal court based on the Federal Rules of Civil Procedure. While the various time periods will be familiar to most, counsel also must consider the operation of Rule 6 in calculating due dates.
Responding to a Complaint, Counterclaim, Crossclaim, or Answer
Unless a defendant waives service of process, the defendant must serve an answer to the complaint within 20 days after being served with the summons and complaint. F.R.C.P. 12(a)(1)(A)(i). If the defendant has timely waived service, 60 days from the date the request for waiver was sent are allowed to serve an answer. F.R.C.P. 12(a)(1)(A)(ii). An answer to a counterclaim or crossclaim must be served within 20 days after service. F.R.C.P. 12(a)(1)(B). If the court orders a party to reply to an answer, the party has 20 days to serve that reply unless the order specifies a different time. F.R.C.P. 12(a)(1)(C). Therefore, if a case is filed in federal court, keep 20 days in mind, rather than the 30 days you may be used to for state court cases.
Rule 12 Motions and Responding to the Complaint After Filing A Rule 12 Motion
A motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure must be filed within the same period as an answer. See F.R.C.P. 12(b) (“A motion asserting any of these defenses must be made before pleading.”) If such a motion is filed, service of a pleading responsive to the complaint is postponed. If the court later denies the motion or decides to postpone ruling on the motion until trial, a responsive pleading must be filed within 10 days “after notice of the court’s action.” F.R.C.P. 12(a)(4)(A). If the court grants a motion for a more definite statement, a responsive pleading must be served within 10 days after the more definite statement is served. F.R.C.P. 12(a)(4)(B). Of course, if the court grants a Rule 12(b) motion, an answer may not be necessary. The court may, however, grant the motion but allow the plaintiff to file an amended complaint, in which case the following section would apply.
Responding to Amended Pleadings
A time limit that could be easily overlooked is the period for responding to an amended pleading. If the court grants the plaintiff leave to file an amended complaint and the plaintiff files that complaint within the time the court allows, a defendant does not have the usual 20 days to file a response. Instead, unless the court orders otherwise, a response to an amended pleading must be made within 10 days after service of the amended pleading. F.R.C.P. 15(a)(3).
Responding to Discovery and Requests to Admit
Federal Rules allow 30 days after service to serve responses to interrogatories, requests for production, and requests for admission. F.R.C.P. 33(b)(2), 34(b)(2)(A), and 36(a)(3). A shorter or longer period may be stipulated to by the parties or ordered by the court. Id. Timely responses to requests for admission are particularly important given that the matters in the request are admitted if no answer or objection is served within 30 days. F.R.C.P. 36(a)(3).
Other Time Limits
There are various other time limits in the Federal Rules of Civil Procedure. A helpful reference for federal time limits is the “Time Table for Lawyers in Federal Civil Cases” found immediately after the table of contents in some texts. See, e.g., Fed. Civil Judicial Procedure & Rules at 3 – 27 (2007).
Calculating Due Dates
The above time limits are fairly elementary and straightforward. Rule 6 of the Federal Rules of Civil Procedure, however, contains some nuances that require careful consideration in order to accurately calculate the due dates for various responses.
First, the day of the act or event that triggers the beginning of the time period is excluded from all computations of time. F.R.C.P. 6(a)(1). Thus, generally the date of service is not counted in calculating the due date for a response to the pleading served.
Second, for periods of less than 11 days, Saturdays, Sundays, and legal holidays are excluded from the time period. F.R.C.P. 6(a)(1). “Legal holiday” is defined in the rules as including New Year’s Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, Christmas Day, and any other day declared a holiday by Congress, the President, or the state where the district court is located. F.R.C.P. 6(a)(4). Therefore, for responses that are due in 10 days, such as responses to amended pleadings, weekends and holidays are not included in the calculation of the due date.
Third, the federal rules provide for an automatic three-day extension of time to respond in certain situations. “When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).” F.R.C.P. 6(d). Accordingly, when service is made by mail (Rule 5(b)(2)(C)) (note that under this provision, service is complete upon mailing), by leaving the pleading with the court clerk if the party has no known address (Rule 5(b)(2)(D)), by electronic service (Rule 5(b)(2)(E)), or by delivering it by other means to which the receiving party has consented (Rule 5(b)(2)(F)), three additional days are added to the time period to respond to the pleading served.
Rule 6 of the Federal Rules of Civil Procedure may therefore alter the due date for the types of pleadings discussed above and others. Rule 6 requires counsel, in calculating a due date, to: (1) exclude the date upon which the act triggering the time period occurred; (2) exclude weekends and legal holidays from time periods of less than 11 days; and (3) determine if three additional days to respond are allowed depending on the type of service.
Accurately calculating due dates for responses is an important task that must be accomplished immediately when a pleading is received so that counsel knows exactly how much time is available to prepare a response and whether an extension should be requested. Failure to properly calculate a federal court due date could result in costly admissions or, even worse, a default judgment. While the time periods for various responses are set forth in the federal rules governing specific pleadings, Rule 6 often alters the actual due date. Therefore, counsel must apply both the provisions of the specific rule in issue and the provisions of Rule 6 when calculating due dates for responses to federal court pleadings.
Michael P. Murphy is an associate in the Edwardsville, Illinois office of HeplerBroom LLC, where he concentrates his practice in the defense of premises liability, automobile accident, and construction injury cases as well as construction contract disputes. He has practiced at HeplerBroom LLC in Edwardsville since receiving his J.D. upon graduation as the valedictorian of the Class of 2004 at the Southern Illinois University School of Law. Mr. Murphy is licensed to practice in Illinois and Missouri.
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