RULE 45. TIME
Effective Date: 3/1/2001
Obsolete Date: 3/1/2006
(a) Computation. In computing any period of time, the day of the act or event from which the designated period of time begins to run may not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays must be excluded in the computation. Service by facsimile transmission must be completed by 5:00 p.m., receiver's time, on a weekday, which is not a legal holiday, or service is considered made on the following weekday which is not a legal holiday.
(b) Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if a request for enlargement is made before expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under Rules 29, 33, 34, 35, and 37, except to the extent and under the conditions stated in them.
(c) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any criminal action which is pending.
(d) For Motions; Affidavits. A written motion, other than one which may be heard ex parte, and notice of the motion must be served at least 18 days before the motion may be heard, unless a different period is fixed by rule or court order. A party may apply ex parte for the court to hear a motion sooner than 18 days after service of the motion. When a motion is supported by affidavit, the affidavit must be served with the motion; and opposing affidavits may be served not less than 1 day before the hearing unless the court permits them to be served at a later time.
(e) Additional Time After Service by Mail or Commercial Carrier.Whenever a party has the right or is required to do an act within a prescribed period after service of a notice or other paper and the notice or paper is served by mail or third-party commercial carrier, 3 days must be added to the prescribed period.Service by facsimile transmission is not service by mail or third-party commercial carrier for purposes of this rule.
Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2001 in Supreme Court Docket No. 20000212 & 20000276; March 1, 2006; March 1, 2007; March 1, 2011; March 1, 2018. The explanatory note was amended, effective March 1, 2014.
Rule 45 is an adaptation of Fed.R.Crim.P. 45 with certain modifications. The rule is similar to N.D.R.Civ.P. 6, which also deals with computing time.
Rule 45 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal 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.
A subdivision referring to terms of court was deleted, effective March 1, 2006. The district courts of North Dakota are in continuous session and terms of court are not a factor in computing or extending time. At the same time, and consistent with the federal rule, a subdivision dealing with motions and affidavits was transferred to Rule 47.
Subdivision (a) was amended, effective March 1, 2006, to include a paragraph defining the term "legal holiday". The definition was amended, effective March 1, 2018, to reference N.D.C.C. §§ 1-03-01, 1-03-02 and 1-03-02.1.
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 (b) was amended, effective March 1, 2007, to delete Rules 29, 33 and 34 from the exceptions paragraph.
Subdivision(c) is an adaptation of N.D.R.Civ.P. 6(e). Under this subdivision, 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 (c), 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 (c) was amended, effective March 1, 1999, to make the three-day extension for service by mail applicable when service is via commercial carrier. The proof of service must contain the date of mailing or deposit with the commercial carrier as required by Rule 49(e) and N.D.R.Civ.P. 4(k) and 5(f).
Subdivision (c) 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 25-26, 2013, pages 26-27; April 29-30, 2010, pages 24-25; April 27-28, 2006, pages 6-7; January 26, 2006, page 11; January 27-28, 2005, page 37; January 27-28, 2000, pages 16-17; January 29-30, 1998, page 20; April 28-29, 1994, pages 15-16; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, pages 20-22; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, page 31; December 11-15, 1972, pages 48-50; September 17-19, 1970, page 10; March 12-14, 1970, pages 16-18; Fed.R.Crim.P. 45.
STATUTES AFFECTED:
SUPERSEDED INSOFAR AS CRIMINAL PROCESS: N.D.C.C. § 1-02-15.
CONSIDERED: N.D.C.C. ch. 1-03, § 1-01-33.
CROSS REFERENCE: N.D.R.Crim.P. 29 (Motion for a Judgment of Acquittal); N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 34 (Arresting Judgment); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence); N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 47 (Motions); 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. 6 (Time); N.D.R.App.P. 26 (Computing and Extending Time).