Computing Deadlines in Federal Court

To compute deadlines in federal court:

  1. Determine what your triggering event is (e.g., the date your client was served with a complaint or the hearing date for a motion that you want to bring).
  2. Count the days forward (e.g., from service of the complaint) or backward (e.g., from the hearing date), as appropriate, to determine by when you have to act (i.e. respond to the complaint or file and serve the moving papers).
  3. If the count lands you on a non-business day, proceed in the same direction until you reach a business day. That’s your deadline.

Below, I go over the general rules, frequently cited specific deadlinesexamples, frequently cited local rules, and additional resources for calculating dates.

The Federal Rules of Civil Procedure, Generally …

Rule 6 of the Federal Rules of Civil Procedure is the starting point:

  • When computing time, “days” are calendar days, not court days. So, just count the days, including weekends and holidays.
  • Your trigger event is day zero, not day one. So, if you’re counting forward from today–say it’s a Wednesday–today is day zero, and tomorrow is day one, … and next Wednesday is day 7.
  • If the due date nominally falls on a weekend or holiday, then keep going until the next business day. If you were counting forward from a triggering event, continue moving forward until you reach the next business day. If you were counting backward, continue moving backward until you reach the next, i.e.earlier, business day. See the examples below.
  • For electronic filings, you have until midnight of your due date. For manual filings you have until the clerk’s office closes.
  • Note that, because the federal courts operate on an online docket, opposing parties receive service automatically upon filing. No adjustments to the time computations are typically made to account for the type of service, unlike in state court matters.
  • Federal holidays are listed in Rule 6(a)(6)(A). Beware, the day after Thanksgiving is nota holiday.
  • Note,bankruptcy courts have separate Rules of Bankruptcy Procedure

SPECIFIC DEADLINES

Pleadings

  • Answers are generally due 21 days after the operative complaint, counterclaim or crossclaim is served. (Rule 12(a)(1).) If, however, you brought a motion in connection with the pleadings (Rules 12(b)-(e), and the motion was denied or ruling was postponed until trial, you have fourteen days to answer. (Rule 12(a)(4).)
  • Rule 12(b) Motions(i.e. “demurrers”) are due before serving a responsive pleading and therefore are due 21 days after the operative complaint, counterclaim or crossclaim is served. In the case that no responsive pleading is due, Rule 12(b) Motions can be made anytime up to and including trial. (Rule 12(b).)
  • Rule 12(c) Motions for Judgment on the Pleadingsare due after the close of pleadings but early enough not to delay trial. (Rule 12(c).

Discovery

  • TheRule 26(f) conference must be held 21 days before the scheduling conference or the Rule 16(b) scheduling order is due. (Rule 26(f)(1).)
  • Discovery requestsmay not be propounded until the Rule 26(f) conference. (Rule 26(d)(1).)
  • Thejoint discovery plan is due 14 days after the Rule 26(f) conference. (Rule 26(f)(2).)
  • Rule 26(a)(1) initial disclosuresare due 14 days after the Rule 26(f) conference. (Rule 26(a)(1)(C).) For parties joined after the Rule 26(f) conference, initial disclosures are due 30 days after joining. (Rule 26(a)(1)(D).)
  • Ascheduling order is due by the earlier of (a) 120 days after any defendant has been served or (b) 90 days after any defendant has appeared. (Rule 16(b)(2).)
  • Responses to discovery requestsare generally due 30 days after the requests were served. (Interrogatories–Rule 33(b)(2); Requests for Documents and Electronically Stored Information–Rule 34(b)(2)(A); Requests for Admission–Rule 36(a)(3).)
  • Depositionsand subpoenas only require, vaguely, “reasonable time” between notice and the deposition and, not incidentally, production of documents thereat. (Party depositions–Rule 30(b)(1); Non-party subpoenas–Rule 45(d)(3)(A)(i).)
  • Expert witness disclosuresare due 90 days before trial. (Rule 26(a)(2)(D)(i).) Rebuttal expert witness disclosures are due 30 days after receiving the other parties’ expert witness disclosures. (Rule 26(a)(2)(D)(ii).)
  • Pretrial disclosuresare due 30 days before trial. (Rule 26(a)(3)(B).) Objections to the use of designated deposition testimony and documents are due 14 days thereafter. (Rule 26(a)(3)(B).)

Motions

  • Motionsare due at least 14 days before the scheduled hearing. (Rule 6(c)(1).) But local rules typically supersede this; see below.
  • Oppositionsto motions are due based on local rules. That said, affidavits filed in opposition to motions are due at least 7 days before hearing. (Rule 6((c)(2).)
  • Rule 12(e) motions for more definite statementare due before serving a responsive pleading and therefore are due 21 days after the pleading to which they pertain is served. (In the case that no responsive pleading is due Rule 12(e) motions for more definite statement are not contemplated.) (Rule 12(e).)
  • Rule 12(f) motions to strike are due before serving a responsive pleading and therefore are due 21 days after the operative complaint, counterclaim or crossclaim is served. In the case that no responsive pleading is due, Rule 12(f) Motions to Strike are due 21 days after the pleading to which they relate. (Rule 12(b), (e), (f).)
  • Motions to compel further responses to discovery requestscannot be brought until after the parties have conferred in a good-faith attempt to resolve the situation, but the rules state no deadline for bringing motions to compel. (Rule 37(a)(1).) Under case law, such motions will be denied if they are “untimely.” And local rules often play a role.
  • Motions for protective order cannot be brought until after the parties have conferred in a good-faith attempt to resolve the situation, but the rules state no deadline for bringing motions for protective order. (Rule 26(c)(1).) You’d be smart to bring them before the relevant discovery event occurs. And local rules often play a role.
  • Summary judgment motionsare due within 30 days after the close of discovery. (Rule 56(b).)

LOCAL RULES

The federal courts in California are divided into four districts, each with their own local rules. I give highlights regarding common scheduling questions and provide links below. (Again, always check the local rules.)

USDC CD Cal. Local Rules

  • Motionsgenerally must be filed 28 days before hearing. If served electronically or personally, they must be served 28 days before hearing. If served by mail, they must be served 31 days before hearing. (LR 6-1.)
  • Oppositionsmust be filed and served 21 days before hearing (except that oppositions to motions for new trial must be filed and served within 10 days after service of the motion). (LR 7-9.)
  • Repliesmust be filed and served 14 days before hearing. (LR 7-10.)
  • Discovery motionscannot be brought prior to meeting and conferring (or attempting to do so), after which the parties must file a joint stipulation. (LR 37-1.) The parties may also file individual Supplemental Memoranda no less than 14 days before the hearing. (LR 37-2.3.)

USDC ED Cal. Local Rules

  • Motionsgenerally must be filed and served 28 days before hearing. (LR 230(b).)
  • Oppositionsrelated motions, andcounter-motions must be filed and served 14 days before hearing. (LR 230(c).)
  • Repliesmust be filed and served 14 days before hearing. (LR 230(d).)
  • Discovery motionsmay be noticed no less than 21 days before hearing (no need to file the actual motion at that time). (LR 251(a).) The parties must then meet and confer and draft a Joint Statement re Discovery Disagreement, and file it at least 7 days before the hearing. (LR 251(a).) In certain circumstances, no joint statement is required, in which case the motion must be filed and served the motion 14 days before hearing, and the opposition must be filed and served 7 days before hearing. (LR 251(e).)

USDC ND Cal. Local Rules

  • Motionsgenerally must be served at least 35 days before hearing. (LR 7-2.)
  • Oppositionsmust be filed and served 14 days after the motion was served. (LR 7-3.)
  • Repliesmust be filed and served 7 days after the opposition was due. (LR 7-4.)
  • Discovery motionscannot be brought prior to meeting and conferring (or attempting to do so). (LR 37-1(a).) Also, they must be brought within 7 days after the discovery cutoff. (LR 37-3.)

USDC SD Cal. Local Rules

  • Motionsgenerally must be served at least 28 days before hearing. (LR 7.1.e.1.)
  • Oppositionsmust be filed and served 14 days after the motion was served. (LR 7.1.e.2.)
  • Repliesmust be filed and served 7 days after the opposition was due. (LR 7.1.e.3.)
  • Discovery motionscannot be brought prior to meeting and conferring (or attempting to do so). (LR 26.1.a.)
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