What You Need to Know About Calculating Deadlines

Travis Graham represents both plaintiffs and defendants in the state and federal courts of Virginia and Tennessee, and focuses on trust and estate litigation, product liability, medical malpractice, and complex commercial litigation. He is a frequent writer, lecturer, and consultant on issues of federal and state civil procedure.

In Virginia State Courts, there are three basic deadline rules.

First, when you calculate a deadline from the occurrence of some event, you never count the day that the event occurred. So, ten days from January 1 is January 11. Ten days before January 20 is January 10.

Second, per Rule 1:7, the deadline to respond to some things can be extended depending on how you got whatever it is you are responding to. If you are responding to something that you received by mail, you add three days to the time period. If you received it by fax, email, or by FedEx or other carrier, you add one day.

The third and final rule is that if the day for compliance falls on a weekend, a legal holiday, or, in the case of something you are filing with the clerk, on a day when the courthouse is closed, your deadline is the “next” day. “Next” is in quotes because, as discussed below, “next” might mean before or after the non-business day.

Here is an example of how this works:

You are served with Requests for Admission on December 1, 2018 by U.S. Mail. You know you were served that day because the certificate of service says that the papers were put in the mail on December 1. Under the “mailbox rule,” papers are deemed served when they are put in the mail, not when they are received. Except for one odd situation discussed below with regard to motions, you never need to worry about postmarks or documenting when something actually got to your office. Service happens at the mailbox.

The rules give you 21 days to respond. You start counting on December 2 and you see that your 21st day is December 22, 2018, a Saturday.

You now have to figure out the interplay between the “extra three days by mail” rule and the “go to the next business day” rule. It works like this: You first add the three days, and see where that falls. You DO NOT go to the next business day, then add three days. So, if your 21st day is December 22, 2018, a Saturday, you count three more days (December 23, 24 and 25) and there you have your due date. Except that December 25 is Christmas, a holiday. So, you go to the next day, December 26. You DO NOT start with December 22, then go to the next business day, which would be December 24, then add three days, which would take you to December 27.

How does this work if you are calculating deadlines in reverse, such as when a scheduling order says that you must do something X days before trial? Everything works the same, except it goes in reverse. If your trial is on December 19, 2018, and you are instructed to serve your witness list ten days before trial, you start counting on December 18, and find that your tenth day is Sunday, December 9, 2018. You then go to the “next” business day, but in this case this means to continue counting backward to Friday, December 7.

Things can get complicated when you try to apply the “extra time for mailing” rule to reverse deadlines. Using our example above of December 7, 2018 as the deadline for serving the witness list, what if you plan to serve it by mail? Should you back up three more days to December 4, or should you rely on the “mailbox rule,” and serve the list by putting it in the mail on December 7? It is absolutely true that you are deemed to have served a paper when you put it in the mailbox. But it is also absolutely true that if you put it in the mailbox at 8:00 p.m. on December 7, and it gets lost among all the Christmas cards and does not get to your opponent until December 12 or 13, he or she is going to pitch a fit and move to strike your witnesses. The best practice, therefore, is to avoid the situation, either by backing up the three days to December 4, or serving it by email, fax, or FedEx so that it gets in your opponent’s hands as quickly as possible. If you sandbag in order to vex your opponent, you will probably get away with it nine out of ten times. But you will not make any friends, and one day the judge might come down on you.

A few other frequently asked questions:

• How about compliance with orders? When you are complying with orders, you do not add time to account for the fact that you got the order in the mail or electronically. If the judge says do something ten days after the date of an order, that is when you do it. This is why it is better to draft orders that say “do X on December 13” rather than “do X ten days after entry of this Order.”
• When are orders considered “entered”? In Virginia state courts, orders are entered when signed by the judge.
• What if something is served on you by mail and email? Do you get three extra days, or one extra day? You get one extra day; you use the quickest method of service.
• What if the certificate of service on something says one date, but the postmark on the envelope shows another? Either disregard and go by the certificate of service or, if you think your opponent is engaging in shenanigans, bring it to the attention of the court. In the meantime, use the date on the certificate of service.
• What are the legal holidays in Virginia? The statute says:
  January 1 — New Year’s Day
  The Friday preceding the third Monday in January — Lee-Jackson
  The third Monday in January — Martin Luther King, Jr., Day
  The third Monday in February — Presidents Day
  The last Monday in May — Memorial Day
  July 4 — Independence Day
  The first Monday in September — Labor Day
  The second Monday in October — Columbus Day
  November 11 — Veterans’ Day
  The fourth Thursday in November and the Friday next following — Thanksgiving Day
  December 25 — Christmas Day
  Whenever any of such days falls on Saturday, the Friday next preceding such day, or whenever any of such days falls on Sunday, the Monday next following such day, and any day so appointed by the Governor of the Commonwealth or the President of the United States, shall be a legal holiday as to the transaction of all business.
• Is it filing or serving that is important? It depends. When we are talking about things that are between you and the clerk, like filing a lawsuit, it is filing that matters. Almost everything else depends on service. In fact, Rule 1:17 tells us that filing a pleading is really sort of an afterthought; you must serve the pleading at or before the time of filing. We all tend to think of filing as being the big deal, because it involves the courthouse, but it is actually not. For instance, if your Answer is due on December 20, and you hand‑deliver it to the courthouse that day but do not mail it to your opponent until the next day, you have missed the deadline. By the same token, if you mail the Answer to your opponent on December 20, but then get caught up in the Christmas spirit and do not send it to the courthouse until December 26, you are not in default.
• Are there any situations where the rules do not work? Two examples come to mind: first, Rule 4:15 tells us that the mailbox rule does not work in the case of motions. In order to serve a motion or response to a motion, you actually have to get it into the hands of your opponent on the day it is due. This rule is almost never enforced, and Rule 4:15 is such a shambles anyway that this is unlikely to come up. Second, if you agree to accept a subpoena or a complaint by mail, you do not add three days to the response time.
• When does the day end? When you are serving things by fax, it has to occur before 5:00 p.m. or it is considered to have happened the next day. Otherwise, the day ends at midnight. We all know that the mail stops running at some point every day, but at least according to the rules, you could mail something at 11:59 p.m. and still be deemed to have served it that day.

Federal Court

In federal court, just as in state court, you do not count the day of an event in calculating deadlines. You add three days to respond to things served by mail, but you do not add any time to account for service by electronic means. As in state court, you can serve items by putting them in the mail, and service is effective at the time of mailing. If you and your opponent agree to serve things by other methods, such as FedEx, service is effective at the time you give the items to the carrier. If you do not agree, service is effective when the FedEx driver delivers the item. Interestingly, there is specific mention of service by facsimile or email in the federal rules. These are “other methods,” and you are supposed to get written consent before using them. You get three extra days to respond to things served by an agreed-upon “other method.” Just as in state court, if your date to respond falls on a weekend day, a holiday, or in the case of something to be filed, a day when the courthouse is closed, you go to the “next” day.

Some frequently asked questions about federal practice:

• How long does the day last? In federal court, the day lasts until midnight in the court’s time zone for purposes of electronic filing and service on your opponent. For filing by other means, it lasts until the clerk’s office closes. Thus, you can mail off your responses to Requests for Admissions on the 30th day two seconds before the ball drops and we sing Auld Lang Syne, and you have met your deadline.
• Are there different rules for motions and such? There are no odd rules on motions in federal court, although there are some specific deadlines set out in Rule 6(c) . The Federal Rules of Civil Procedure do not have many traps, but local rules are a different matter. Almost every federal district court has local rules, ranging from simple (the Western District of Virginia) to complex (the Eastern District of Virginia). It also seems that the courts with the more complicated local rules are the ones more likely to harshly enforce them. Practitioners should not neglect local rules.
• How do dates in scheduling orders work? Federal courts generally issue scheduling orders containing a mixture of deadlines established by date and by time periods counted backward from the trial date. You must remember that the Federal Rules of Civil Procedure also contain a host of specific pretrial deadlines. Many an attorney has experienced the unpleasant sensation of receiving items like opposing deposition designations at six o’clock on a Friday evening, and only then realizing that the deadline is upon him or her. Some scheduling orders are so devious as to set deadlines for some types of pre-trial disclosures, but not others. So, you may find that your witness list, exhibit list, and deposition designations are all due on different dates. It is worth your while to read Rule 26 (a)(2) and (3) in detail and calendar the deadlines.
• When are orders considered “entered”? Orders in federal court are considered entered when the clerk files them, not when the judge signs them.
• What are the federal holidays? According to Rule 6(a)(6), they are New Years’ Eve Day, Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day, and, for any time period measured after an event, any state holiday.