It's a nightmare common to new and old lawyers alike: a litigator awakens in the middle of the night, panicked that she has blown a deadline on a motion filed against her client a few weeks ago in federal court. She looks at the certificate of service on the motion and makes a quick calculation—the motion was indeed due by midnight! Then she remembers that the motion was served via the federal court's electronic filing system and recalls that, under the Federal Rules of Civil Procedure, her client is entitled to 3 extra days to respond to the motion in addition to the time that would otherwise be allotted under Rule 6. Crisis averted! The motion is not conceded (yet) and she has 3 more days to finish her opposition.
On December 1, 2016, however, the Supreme Court amended the federal rules in a way that would have given our federal court litigator more heartburn. The newly revised Federal Rules eliminate the "mailbox rule" for electronic filing and service, meaning, by way of example, that if the local rules in your jurisdiction indicate that you have 14 days to file a response to an opponent's motion filed electronically, you indeed have only that 14 days.
The Advisory Committee to the Federal Rules evidently considered this extra time to be an "indulgence." The Committee reasoned that local rules have also been changed to provide for 7-, 14-, 21-, or 28- day periods to allow for simple counting. Those three extra days complicated counting and led to confusion for courts, opposing parties, and clients.
Many state courts, of course, continue to "indulge" their litigators with the extra 3 days for any type of filing. Thus, litigators who practice in both state and federal court should be mindful of this distinction when calculating deadlines. For instance, Maryland's state court rules of civil procedure continue to have the "mailbox rule" for electronic filing. Their federal counterparts, of course, will not.
It's important to note that this amendment does not only apply to federal court filings made through the CM/ECF filing system. The rule is broadly worded to apply to any electronic filing or service—including, for instance, electronic service of discovery. Thus, if you and opposing counsel agree to exchange discovery via e-mail, then you (and your opponent) no longer receive the 3 extra days you would have received had you dropped your discovery in the mail.
It's also important to note what this does not change. As noted above, parties served by mail still get 3 extra days to file their responsive pleadings. Papers left with the court clerk also get the three day extension, as do papers delivered by some other means (carrier pigeon?) that a party may have consented to in writing.
To keep you and your clients out of hot water in federal court, remember that the deadlines in your cases have just gotten shorter. Consider it an early holiday present—even though you and your clients have 3 fewer days to get something on file, so do your opponents!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
