NOTES TO RULE 6
HISTORY: (Amended Mar. 19, 1948; July 1, 1963; July 1, 1966; July 1, 1968; July 1, 1971; Aug. 1, 1983; Aug. 1, 1985; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
Note to Subdivisions (a) and (b).
These are amplifications along lines common in state practices, of former Equity Rule 80 (Computation of Time--Sundays and Holidays) and of the provisions for enlargement of time found in former Equity Rules 8 (Enforcement of Final Decrees) and 16 (Defendant to Answer--Default--Decree Pro Confesso). See also Rule XIII, Rules and Forms in Criminal Cases, 292 US 661, 666. Compare Ala Code Ann (Michie, 1928) § 13 and former Law Rule 8 of the Rules of the Supreme Court of the District of Columbia (1924), superseded in 1929 by Law Rule 8, Rules of the District Court of the United States for the District of Columbia (1937).
Note to Subdivision (c).
This eliminates the difficulties caused by the expiration of terms of court. Such statutes as USC Title 28, former § 12 (Trials not discontinued by new term) are not affected. Compare Rules of the United States District Court of Minnesota, Rule 25 (Minn Stat (Mason, Supp 1936), p. 1089).
Note to Subdivision (d).
Compare 2 Minn Stat (Mason, 1927) § 9246; NY RCP (1937) Rules 60 and 64.
Notes of Advisory Committee on 1946 amendments to Rules.
Subdivision (b).
The purpose of the amendment is to clarify the finality of judgments. Prior to the advent of the Federal Rules of Civil Procedure, the general rule that a court loses jurisdiction to disturb its judgments, upon the expiration of the term at which they were entered, had long been the classic device which (together with the statutory limits on the time for appeal) gave finality to judgments. See Note to Rule 73(a). Rule 6(c) abrogates that limit on judicial power. That limit was open to many objections, one of them being inequality of operation because, under it, the time for vacating a judgment rendered early in a term was much longer than for a judgment rendered near the end of the term.
The question to be met under Rule 6(b) is: how far should the desire to allow correction of judgments be allowed to postpone their finality? The rules contain a number of provisions permitting the vacation or modification of judgments on various grounds. Each of these rules contains express time limits on the motions for granting of relief. Rule 6(b) is a rule of general application giving wide discretion to the court to enlarge these time limits or revive them after they have expired, the only exceptions stated in the original rule being a prohibition against enlarging the time specified in Rule 59(b) and (d) for making motions for or granting new trials, and a prohibition against enlarging the time fixed by law for taking an appeal. It should also be noted that Rule 6(b) itself contains no limitation of time within which the court may exercise its discretion, and since the expiration of the term does not end its power, there is now no time limit on the exercise of its discretion under Rule 6(b).
Decisions of lower federal courts suggests that some of the rules containing time limits which may be set aside under Rule 6(b) are Rules 25, 50(b), 52(b), 60(b), and 73(g).
In a number of cases the effect of Rule 6(b) on the time limitations of these rules has been considered. Certainly the rule is susceptible of the interpretation that the court is given the power in its discretion to relieve a party from failure to act within the times specified in any of these other rules, with only the exceptions stated in Rule 6(b), and in some cases the rule has been so construed.
With regard to Rule 25(a) for substitution, it was held in Anderson v Brady, ED Ky 1941, 1 FRD 589, 4 Fed Rules Service 25a.1, Case 1, and in Anderson v Yungkau, CCA 6th, 1946, 153 F2d 685, cert granted, 1946, 66 S Ct 1025, that under Rule 6(b) the court had no authority to allow substitution of parties after the expiration of the limit fixed in Rule 25(a).
As to Rules 50(b) for judgments notwithstanding the verdict and 52(b) for amendment of findings and vacation of judgment, it was recognized in Leishman v Associated Wholesale Electric Co. 1943, 318 US 203, 63 S Ct 543, that Rule 6(b) allowed the district court to enlarge the time to make a motion for amended findings and judgment beyond the limit expressly fixed in Rule 52(b). See Coca-Cola v Busch, ED Pa 1943, 7 Fed Rules Service 59b.2, Case 4. Obviously, if the time limit in Rule 52(b) could be set aside under Rule 6(b), the time limit in Rule 50(b) for granting judgment notwithstanding the verdict (and thus vacating the judgment entered "forthwith" on the verdict) likewise could be set aside.
As to Rule 59 on motions for a new trial, it has been settled that the time limits in Rule 59(b) and (d) for making motions for or granting new trial could not be set aside under Rule 6(b), because Rule 6(b) expressly refers to Rule 59, and forbids it. See Safeway Stores, Inc. v Coe, App DC 1943, 78 US App DC 19, 136 F2d 771; Jusino v Morales & Tio, CCA 1st, 1944, 139 F2d 946; Coca-Cola Co. v Busch, ED Pa 1943, 7 Fed Rules Service 59b.2, Case 4; Peterson v Chicago Great Western Ry. Co. D Neb 1943, 3 FRD 346, 7 Fed Rules Service 59b.2, Case 1; Leishman v Associated Wholesale Electric Co. 1943, 318 US 203, 63 S Ct 543.
As to Rule 60(b) for relief from a judgment, it was held in Schram v O'Connor, ED Mich 1941, 5 Fed Rules Serv 6b.31, Case 1, 2 FRD 192, s c 5 Fed Rules Serv 6b.31, Case 2, 2 FRD 192, that the six-months time limit in original Rule 60(b) for making a motion for relief from a judgment for surprise, mistake, or excusable neglect could be set aside under Rule 6(b). The contrary result was reached in Wallace v United States, CCA2d 1944, 142 F2d 240, cert den 1944, 323 US 712, 65 S Ct 37; Reed v South Atlantic Steamship Co. of Del., D Del 1942, 2 FRD 475, 6 Fed Rules Serv 60b.31, Case 1.
As to Rule 73(g), fixing the time for docketing an appeal, it was held in Ainsworth v Gill Glass & Fixture Co. CCA3d 1939, 104 F2d 83, that under Rule 6(b) the district court, upon motion made after the expiration of the forty-day period, stated in Rule 73(g), but before the expiration of the ninety-day period therein specified, could permit the docketing of the appeal on a showing of excusable neglect. The contrary was held in Mutual Benefit Health & Accident Ass'n v Snyder, CCA 6th 1940, 109 F2d 469 and in Burke v Canfield, App. D.C. 1940, 72 App DC 127, 111 F2d 526.
The amendment of Rule 6(b) now proposed is based on the view that there should be a definite point where it can be said a judgment is final; that the right method of dealing with the problem is to list in Rule 6(b) the various other rules whose time limits may not be set aside, and then, if the time limit in any of those other rules is too short, to amend that other rule to give a longer time. The further argument is that Rule 6(c) abolished the long standing device to produce finality in judgments through expiration of the term, and since that limitation on the jurisdiction of courts to set aside their own judgments has been removed by Rule 6(c), some other limitation must be substituted or judgments never can be said to be final.
In this connection reference is made to the established rule that if a motion for a new trial is seasonably made, the mere making or pendency of the motion destroys the finality of the judgment, and even though the motion is ultimately denied, the full time for appeal starts anew from the date of denial. Also, a motion to amend the findings under Rule 52(b) has the same effect on the time for appeal. Leishman v Associated Wholesale Electric Co. 1943, 318 US 203, 63 S Ct 543. By the same reasoning a motion for judgment under Rule 50(b), involving as it does the vacation of a judgment entered "forthwith" on the verdict (Rule 58), operates to postpone, until an order is made, the running of the time for appeal. The Committee believes that the abolition by Rule 6(c) of the old rule that a court's power over its judgments ends with the term, requires a substitute limitation, and that unless Rule 6(b) is amended to prevent enlargement of the times specified in Rules 50(b), 52(b) and 60(b), and the limitation as to Rule 59(b) and (d) is retained, no one can say when a judgment is final. This is also true with regard to proposed Rule 59(e), which authorizes a motion to alter or amend a judgment, hence that rule is also included in the enumeration in amended Rule 6(b). In consideration of the amendment, however, it should be noted that Rule 60(b) is also to be amended so as to lengthen the six-months period originally prescribed in that rule to one-year.
As to Rule 25 on substitution, while finality is not involved, the limit there fixed should be controlling. That rule, as amended, gives the court power, upon showing of a reasonable excuse, to permit substitution after the expiration of the two-year period.
As to Rule 73(g), it is believed that the conflict in decisions should be resolved and not left to further litigation, and that the rule should be listed as one whose limitation may not be set aside under Rule 6(b).
As to Rule 59(c), fixing the time for serving affidavits on motion for new trial, it is believed that the court should have authority under Rule 6(b) to enlarge the time, because, once the motion for new trial is made, the judgment no longer has finality, and the extension of time for affidavits thus does not of itself disturb finality.
Other changes proposed in Rule 6(b) are merely clarifying and conforming. Thus "request" is substituted for "application" in clause (1) because an application is defined as a motion under Rule 7(b). The phrase "extend the time" is substituted for "enlarge the period" because the former is a more suitable expression and relates more clearly to both clauses (1) and (2). The final phrase in Rule 6(b), "or the period for taking an appeal as provided by law," is deleted and a reference to Rule 73(a) inserted, since it is proposed to state in that rule the time for appeal to a circuit court of appeals, which is the only appeal governed by the Federal Rules, and allows an extension of time. See Rule 72.
Subdivision (c).
The purpose of this amendment is to prevent reliance upon the continued existence of a term as a source of power to disturb the finality of a judgment upon grounds other than those stated in these rules. See Hill v Hawes, 1944, 320 US 520, 64 S Ct 334; Boaz v Mutual Life Ins. Co. of New York, CCA8th 1944, 146 F2d 321; Bucy v Nevada Construction Co. CCA9th 1942, 125 F2d 213.
Notes of Advisory Committee on 1963 amendments to Rules.
Subdivision (a).
This amendment is related to the amendment of Rule 77(c) changing the regulation of the days on which the clerk's office shall be open.
The wording of the first sentence of Rule 6(a) is clarified and the subdivision is made expressly applicable to computing periods of time set forth in local rules.
Saturday is to be treated in the same way as Sunday or a "legal holiday" in that it is not to be included when it falls on the last day of a computed period, nor counted as an intermediate day when the period is less than 7 days. "Legal holiday" is defined for purposes of this subdivision and amended Rule 77(c). Compare the definition of "holiday" in 11 USC § 1(18); also 5 USC § 86a; Executive Order No. 10358, "Observance of Holidays," June 9, 1952, 17 Fed Reg 5269. In the light of these changes the last sentence of the present subdivision, dealing with half holidays, is eliminated.
With Saturdays and State holidays made "dies non" in certain cases by the amended subdivision, computation of the usual 5-day notice of motion or the 2-day notice to dissolve or modify a temporary restraining order may work out so as to cause embarrassing delay in urgent cases. The delay can be obviated by applying to the court to shorten the time, see Rules 6(d) and 65(b).
Subdivision (b).
The prohibition against extending the time for taking action under Rule 25 (Substitution of parties) is eliminated. The only limitation of time provided for in amended Rule 25 is the 90-day period following a suggestion upon the record of the death of a party within which to make a motion to substitute the proper parties for the deceased party. See Rule 25(a)(1), as amended, and the Advisory Committee's Note thereto. It is intended that the court shall have discretion to enlarge that period.
Notes of Advisory Committee on 1966 amendments to Rules.
Subdivision (c).
PL 88-139, § 1, 77 Stat 248, approved on October 16, 1963, amended 28 USC § 138 to read as follows: "The district court shall not hold formal terms." Thus Rule 6(c) is rendered unnecessary, and it is rescinded.
Notes of Advisory Committee on 1968 amendments to Rules.
The amendment eliminates the references to Rule 73, which is to be abrogated.
Notes of Advisory Committee on 1971 amendments to Rules.
The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968, 82 Stat 250, which constituted Columbus Day a legal holiday effective after January 1, 1971.
The Act, which amended Title 5, USC § 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 1983 amendments to Rules.
Subdivision (b).
The amendment confers finality upon the judgments of magistrates by foreclosing enlargement of the time for appeal except as provided in new Rule 74(a) (20 day period for demonstration of excusable neglect).
Preliminary draft of proposed amendment. A preliminary draft, dated August, 1988, proposed amendments to Rule 6 as follows:
(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 8 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held.
(b)-(e) [Unchanged]
Notes of Advisory Committee on Aug. 1988 proposed amendments to Rules.
The amendment to the language concerning the exclusion of intervening weekends and legal holidays conforms this subdivision with similar proposed amendments to the Fed. R. App. P. 26(a), Fed. R. Crim. P. 45(a) and the Fed. R. Bankr. P. 9006(a).
Notes of Advisory Committee on 1985 amendments to Rules.
Rule 6(a) is amended to acknowledge that weather conditions or other events may render the clerk's office inaccessible one or more days. Parties who are obliged to file something with the court during that period should not be penalized if they cannot do so. The amendment conforms to changes made in Federal Rule of Criminal Procedure 45(a), effective August 1, 1982.
The Rule also 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 hardship would be especially acute in the case of Rules 50(b) and (c)(2), 52(b), and 59(b), (d), and (e), which may not be enlarged at the discretion of the court. See Rule 6(b). If the exclusion of Saturdays, Sundays, and legal holidays will operate to cause excessive delay in urgent cases, the delay can be obviated by applying to the court to shorten the time. See Rule 6(b).
The Birthday of Martin Luther King, Jr., which becomes a legal holiday effective in 1986, has been added to the list of legal holidays enumerated in the Rule.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on 1999 amendments to Rules.
The reference to Rule 74(a) is stricken from the catalogue of time periods that cannot be extended by the district court. The change reflects the 1997 abrogation of Rule 74(a).
Notes of Advisory Committee on 2001 amendments to Rules.
The additional three days provided by Rule 6(e) is extended to the means of service authorized by the new paragraph (D) added to Rule 5(b), including -- with the consent of the person served -- service by electronic or other means. The three-day addition is provided as well for service on a person with no known address by leaving a copy with the clerk of the court.