Rule 45. Computing and Extending Time
(a)
(1) Day of the Event Excluded. Exclude the day of the act, event, or default that begins the period.
(2) Exclusion from Brief Periods. Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days.
(3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or day on which weather or other conditions make the clerk's office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day when the clerk's office is inaccessible.
(4) "Legal Holiday" Defined. As used in this rule, "legal holiday" means:
(A) the day set aside by statute for observing:
(i) New Year's Day;
(ii) Martin Luther King, Jr.'s Birthday;
(iii) Washington's Birthday;
(iv) Memorial Day;
(v) Independence Day;
(vi) Labor Day;
(vii) Columbus Day;
(viii) Veterans' Day;
(ix) Thanksgiving Day;
(x) Christmas Day; and
(B) any other day declared a holiday by the President, the Congress, or the state where the district court is held.
(b)
(1) In General. When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party's motion made:
(A) before the originally prescribed or previously extended time expires; or
(B) after the time expires if the party failed to act because of excusable neglect.
(2) Exception. The court may not extend the time to take any action under Rule 35, except as stated in that rule.
(c)
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007.)
Notes of Advisory Committee on Rules-1944
The rule is in substance the same as Rule 6 of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. It seems desirable that matters covered by this rule should be regulated in the same manner for civil and criminal cases, in order to preclude possibility of confusion.
Note to Subdivision (a). This rule supersedes the method of computing time prescribed by Rule 13 of the Criminal Appeals Rules, promulgated on May 7, 1934, 292 U.S. 661.
Note to Subdivision (c). This rule abolishes the expiration of a term of court as a time limitation for the taking of any step in a criminal proceeding, as is done for civil cases by Rule 6(c) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. In view of the fact that the duration of terms of court varies among the several districts and the further fact that the length of time for the taking of any step limited by a term of court depends on the stage within the term when the time begins to run, specific time limitations have been substituted for the taking of any step which previously had to be taken within the term of court.
Note to Subdivision (d). Cf. Rule 47 (Motions) and Rule 49 (Service and filing of papers).
Notes of Advisory Committee on Rules-1966 Amendment
Subdivision (a).-This amendment conforms the subdivision with the amendments made effective on July 1, 1963, to the comparable provision in Civil Rule 6(a). The only major change is to treat Saturdays as legal holidays for the purpose of computing time.
Subdivision (b).-The amendment conforms the subdivision to the amendments made effective in 1948 to the comparable provision in Civil Rule 6(b). One of these conforming changes, substituting the words "extend the time" for the words "enlarge the period" clarifies the ambiguity which gave rise to the decision in United States v. Robinson, 361 U.S. 220 (1960). The amendment also, in connection with the amendments to Rules 29 and 37, makes it clear that the only circumstances under which extensions can be granted under Rules 29, 33, 34, 35, 37(a)(2) and 39(c) are those stated in them.
Subdivision (c).-Subdivision (c) of Rule 45 is rescinded as unnecessary in view of the 1963 amendment to 28 U.S.C. §138 eliminating terms of court.
Notes of Advisory Committee on Rules-1968 Amendment
The amendment eliminates inappropriate references to Rules 37 and 39 which are to be abrogated.
Notes of Advisory Committee on Rules-1971 Amendment
The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968,
The Act, which amended Title 5, U.S.C., §6103(a), changes the day on which certain holidays are to be observed. Washington's Birthday, Memorial Day and Veterans Day are to be observed on the third Monday in February, the last Monday in May and the fourth Monday in October, respectively, rather than, as heretofore, on February 22, May 30, and November 11, respectively. Columbus Day is to be observed on the second Monday in October. New Year's Day, Independence Day, Thanksgiving Day and Christmas continue to be observed on the traditional days.
Notes of Advisory Committee on Rules-1982 Amendment
The amendment to subdivision (a) takes account of the fact that on rare occasion severe weather conditions or other circumstances beyond control will make it impossible to meet a filing deadline under Rule 45(a). Illustrative is an incident which occurred in Columbus, Ohio during the "great blizzard of 1978," in which weather conditions deteriorated to the point where personnel in the clerk's office found it virtually impossible to reach the courthouse, and where the GSA Building Manager found it necessary to close and secure the entire building. The amendment covers that situation and also similar situations in which weather or other conditions made the clerk's office, though open, not readily accessible to the lawyer. Whether the clerk's office was in fact "inaccessible" on a given date is to be determined by the district court. Some state time computation statutes contain language somewhat similar to that in the amendment; see, e.g., Md.Code Ann. art. 94, §2.
Notes of Advisory Committee on Rules-1985 Amendment
The rule is amended to extend the exclusion of intermediate Saturdays, Sundays, and legal holidays to the computation of time periods less than 11 days. Under the current version of the Rule, parties bringing motions under rules with 10-day periods could have as few as 5 working days to prepare their motions. This change corresponds to the change being made in the comparable provision in Fed.R.Civ.P. 6(a).
The Birthday of Martin Luther King, Jr., which becomes a legal holiday effective January 1986, has been added to the list of legal holidays enumerated in the Rule.
Notes of Advisory Committee on Rules-1987 Amendment
The amendments are technical. No substantive change is intended.
Committee Notes on Rules-2002 Amendment
The language of Rule 45 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The additional three days provided by Rule 45(c) is extended to the means of service authorized by the new paragraph (D) added to Rule 5(b) of the Federal Rules of Civil Procedure, including-with the consent of the person served-service by electronic means. The means of service authorized in civil actions apply to criminal cases under Rule 49(b).
Rule 45(d), which governs the timing of written motions and affidavits, has been moved to Rule 47.
Committee Notes on Rules-2005 Amendment
Rule 45(b) has been amended to conform to amendments to Rules 29, 33, and 34, which have been amended to remove the requirement that the court must act within the seven-day period specified in each of those rules if it sets another time for filing a motion under those rules.
Currently, Rules 29(c)(1), 33(b)(2), and 34(b) require the defendant to move for relief under those rules within the seven-day periods specified in those rules or within some other time set by the court in an order issued during that same seven-day period. Courts have held that the seven-day rule is jurisdictional. Thus, for example, if a defendant files a request for an extension of time to file a motion for a judgment of acquittal or a motion for new trial within the seven-day period, the court must rule on that motion or request within the same seven-day period. If for some reason the court does not rule on the request for an extension of time within the seven days, the court loses jurisdiction to act on the underlying substantive motion. See, e.g., United States v. Smith, 331 U.S. 469, 473–474 (1947) (rejecting argument that trial court had power to grant new trial on its own motion after expiration of time in Rule 33); United States v. Marquez, 291 F.3d 23, 27–28 (D.C. Cir. 2002) (citing language of Rule 33, and holding that "district court forfeited the power to act when it failed to . . . fix a new time for filing a motion for a new trial within seven days of the verdict").
Rule 45(b)(2) currently specifies that a court may not extend the time for taking action under Rules 29, 33, or 34, except as provided in those rules.
Assuming that the current provisions in Rules 29, 33, and 34 were intended to promote finality, there is nothing to prevent the court from granting the defendant a significant extension of time, under those rules, as long as it does so within the seven-day period. Thus, the Committee believed that those rules should be amended to be consistent with all of the other timing requirements in the rules, which do not force the court to rule on a motion to extend the time for filing, within a particular period of time or lose jurisdiction to do so. The change to Rule 45(b)(2) is thus a conforming amendment.
The defendant is still required to file motions under Rules 29, 33, and 34 within the seven-day period specified in those rules. The defendant, however, may consistently with Rule 45, seek an extension of time to file the underlying motion as long as the defendant does so within the seven-day period. But the court itself is not required to act on that motion within any particular time. Further, under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the specified time, the court may nonetheless consider that untimely motion if the court determines that the failure to file it on time was the result of excusable neglect.
Changes Made After Publication and Comment. The Committee made no substantive changes to Rule 45 following publication.
Committee Notes on Rules-2007 Amendment
Subdivision (c). Rule 45(c) is amended to remove any doubt as to the method for extending the time to respond after service by mail, leaving with the clerk of court, electronic means, or other means consented to by the party served. This amendment parallels the change in Federal Rule of Civil Procedure 6(e). Three days are added after the prescribed period otherwise expires under Rule 45(a). Intermediate Saturdays, Sundays, and legal holidays are included in counting these added three days. If the third day is a Saturday, Sunday, or legal holiday, the last day to act is the next day that is not a Saturday, Sunday, or legal holiday. The effect of invoking the day that the rule would otherwise expire under Rule 45(a) can be illustrated by assuming that the thirtieth day of a thirty-day period is a Saturday. Under Rule 45(a) the period expires on the next day that is not a Sunday or legal holiday. If the following Monday is a legal holiday, under Rule 45(a) the period expires on Tuesday. Three days are then added-Wednesday, Thursday, and Friday as the third and final day to act unless that is a legal holiday. If the prescribed period ends on a Friday, the three added days are Saturday, Sunday, and Monday, which is the third and final day to act unless it is a legal holiday. If Monday is a legal holiday, the next day that is not a legal holiday is the third and final day to act.
Application of Rule 45(c) to a period that is less than eleven days can be illustrated by a paper that is served by mailing on a Friday. If ten days are allowed to respond, intermediate Saturdays, Sundays, and legal holidays are excluded in determining when the period expires under Rule 45(a). If there is no legal holiday, the period expires on the Friday two weeks after the paper was mailed. The three added Rule 45(c) days are Saturday, Sunday, and Monday, which is the third and final day to act unless it is a legal holiday. If Monday is a legal holiday, the next day that is not a legal holiday is the final day to act.
Changes Made to Proposed Amendment Released for Public Comment. No change was made in the rule as published for public comment.
References in Text
The Federal Rules of Civil Procedure, referred to in subd. (c), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.