Reporter’s Notes-2018 Amendment

Rule 6(a) is amended to adopt the “day is a day” rule, a simplified method of computing time periods, by incorporating, with minor changes, the language of a 2009 amendment to Rule 6(a) of the Federal Rules of Civil Procedure. The amendment serves the purposes of both achieving simplicity and maintaining unifonnity with the federal practice. By simultaneous amendment, the time provisions of these and all other procedural rules promulgated by the Supreme Court have been made consistent with the new computation method. The Advisory Committee and Reporter particularly wish to express their gratitude to Elizabeth Tisher, J.D., for her essential preliminary drafting of this and other necessary amendment orders.

As the Federal Advisory Committee’s Notes point out, this computation method does not apply when a statute prescribes a specific method for computing time. For clarity, amended V.R.C.P. 6(a) retains the language of the former Vermont rule making its computation provisions apply to a time period in any “applicable statute that does not specify a method of computing time” (emphasis added). By Act No. 11 of 2017, the Legislature amended a number of statutory procedural time periods of less than 10 days to be expressly “business days,” thus making Rule 6(a) inapplicable to them. For consistency, “business days” has been added to a few such time periods in several rules that were taken from one of the amended statutes. Act No. 11 also amended statutory periods of 10 days to 14 days, thus making them consistent with the “day is a day” provisions of Rule 6(a).

Former V.R.C.P. 6(a) applied to a time period in “any applicable statute.” The retention of “applicable” in the amended rule is intended to preserve the effect of two Vermont Supreme Court decisions making clear that the test of whether a statute is “applicable” under V.R.C.P. 6(a) is whether the statute concerns matters to which the Rules of Civil Procedure apply under V.R.C.P. 1. In Allen v. Employment Security Board, 133 Vt. 166, 168, 333 A.2d 122, 124 (1975), affirming the Board’s dismissal of two appeals as untimely under applicable statutory provisions, the Court stated, “The scope of the Rules of Civil Procedure is clearly defined in V.R.C.P. 1. They govern procedure ‘in the Superior Court in all suits of a civil nature’ as well as causes transferred from District Court and appeals to the Superior Court, with stated exceptions. Clearly they do not apply to the cases here in issue.” Appellant had argued that the statutory provisions should incorporate former V.R.C.P. 6(a) extending time periods that ended on weekends or holidays and former V.R.C.P. 6(e) adding time after service by mail. In State v. Hanlon, 164 Vt. 125, 128, 665 A.2d 603, 604 (1995), the Court found the State’s appeal timely, holding that the provision of 13 V.S.A. § 7403(e) establishing a time period for the State to file an appeal in a criminal matter was an “applicable statute” under V.R.C.P. 6(a), incorporated in V.R.A.P. 26(a); thus, the statutory time period could be extended by the weekend and holiday provisions of the rule as it then stood.

The Federal Advisory Committee’s Notes provide a helpful further explanation of the change:

Under former Rule 6(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 6(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same day and the 10-day period not infrequently ended later than the 14-day period….

Under [the amended rule], all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other days including intermediate Saturdays, Sundays, and legal holidays are counted, [except that if] the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday.

The phrase “legal holidays” in new Rules 6(a)(l)-(3) is defined in new Rule 6(a)(6) to include both federal and state holidays.

Of course, if the clerk’s office is inaccessible on the last day or hour, or the day or hour to which the period has been extended, Rule 6(a)(3) provides that the deadline falls on the next accessible or available day or time. Inaccessibility includes failure of the electronic filing system in a case where a document is to be filed electronically. See V.R.E.F. 4(c); Federal Advisory Committee’s Note to 2009 amendment adding F.R.C.P. 6(a)(3). Note that “act, event, or default” has been changed in the amended rule to “event” for brevity and simplicity. The change is not intended as a change in meaning.

Periods of less than 11 days in other provisions of the rules would be shortened by the inclusion of intermediate Saturdays, Sundays, and legal holidays. Accordingly, shorter time periods in other rules are being extended by simultaneous amendments, generally following guidelines stated in the Federal Advisory Committee’s Notes:

Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period coixesponds to the most frequent result of a 10-day period under the former computation method two Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the period the 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods.

In sum, in the Vermont rules, most periods of 3 days are changed to 5 unless there is a specific reason for the shorter time. Periods of 5 to 20 days are converted to 7 or multiples of 7 for convenience. Thus, 5 days becomes 7. Seven days remains 7. Ten and 15 days become 14. Twenty days become 21. Several 10-day time periods were enlarged and changed to 28 days for consistency with the changed federal standard for motion practice. Thirty-day time periods remain unchanged. Forty-five and 50-day periods, not found in the Federal Rules, have been changed to 42 and 49 days, consistent with the “multiple of 7” simplification adopted in the Federal Rules.

Note that time periods may be either forward-looking or backward-looking. Thus, former Rule 59(b) is forward-looking, requiring a motion for new trial to be filed “not later than 10 days after the entry of judgment.” Former Rule 68 is backward-looking, requiring service of an offer of judgment “[a]t any time more than 10 days before the trial begins” unless the court approves a shorter time. The last day of a period ending on a weekend or holiday should be determined by counting in the same direction that the time period runs. For example, the Federal Advisory Committee’s Notes suggest, that if a filing is due within 30 days after an event, and the thirtieth day falls on Saturday, September 1, 2007, then the filing is due on Tuesday, September 4, 2007 (Monday, September 3, is Labor Day). But if a filing is due 21 days before an event, and the twenty-first day falls on Saturday, September 1, then the filing is due on Friday, August 31. If the clerk’s office is inaccessible on August 31, then [the rule] extends the filing deadline forward to the next accessible day that is not a Saturday, Sunday, or legal holiday no later than Tuesday, September 4

In either the “after” or “before” situation, if the clerk’s office were inaccessible on Tuesday, September 4, the extension would continue until the office was accessible.

New Rules 6(a)(4)-(6) are based on the comparable provisions of F.R.C.P. 6(a) as amended in 2009.

Rule 6(a)(7) is added consistent with Act No. 11 of 2017 discussed above to make clear that an applicable statute, or another provision of these or other court procedural rules, computing a time period in “business days” creates an exception to the “day is a day” counting method generally made applicable by Rule 6(a)(1): Intermediate Saturdays, Sundays, and legal holidays will not be counted in computing a period specified to be in “business days,” contrary to the practice specified by Rule 6(a)(1) for computing periods not so labeled.

Rule 6(b) is revised to adopt the format and language of F.R.C.P. 6(b) as restyled in 2007 and amended in 2009. The one-day time period in Rule 6(d) for service of opposing affidavits on motions is changed to 7 days, consistent with F.R.C.P. 6(c)(2).

Rule 6(e) is amended to adopt the simplified language of Federal Rule 6(d) as amended in 2005 and follows the federal rule in adding the additional three days after service by electronic means if permitted or required under Rule 5(b)(4). Federal Rule 6(d) was amended effective December 1, 2016, to eliminate the three-day provision for electronic service, because, as the Federal Advisory Committee’s Notes state, initial concerns with the reliability of electronic transmission “have been substantially alleviated by advances in technology and in widespread skill in using electronic transmission.” In view of the relatively recent availability and use of electronic transmission in Vermont practice, the three-day provision has been retained in the present amendment.