Federal rules civil procedure trial continuance


















Thus the timing has been left to the court's discretion. At least one of the attorneys who will conduct the trial for each party must be present at the final pretrial conference. At this late date there should be no doubt as to which attorney or attorneys this will be. Since the agreements and stipulations made at this final conference will control the trial, the presence of lawyers who will be involved in it is especially useful to assist the judge in structuring the case, and to lead to a more effective trial.

Subdivision e ; Pretrial Orders. Rule 16 e does not substantially change the portion of the original rule dealing with pretrial orders. The purpose of an order is to guide the course of the litigation and the language of the original rule making that clear has been retained.

No compelling reason has been found for major revision, especially since this portion of the rule has been interpreted and clarified by over forty years of judicial decisions with comparatively little difficulty. Changes in language therefore have been kept to a minimum to avoid confusion. Since the amended rule encourages more extensive pretrial management than did the original, two or more conferences may be held in many cases.

The language of Rule 16 e recognizes this possibility and the corresponding need to issue more than one pretrial order in a single case. Once formulated, pretrial orders should not be changed lightly; but total inflexibility is undesirable.

Pennsylvania R. The exact words used to describe the standard for amending the pretrial order probably are less important than the meaning given them in practice. By not imposing any limitation on the ability to modify a pretrial order, the rule reflects the reality that in any process of continuous management what is done at one conference may have to be altered at the next. They have the virtue of familiarity and adequately describe the restraint the trial judge should exercise.

Many local rules make the plaintiff's attorney responsible for drafting a proposed pretrial order, either before or after the conference. Others allow the court to appoint any of the attorneys to perform the task, and others leave it to the court. Rule 16 has never addressed this matter. Since there is no consensus about which method of drafting the order works best and there is no reason to believe that nationwide uniformity is needed, the rule has been left silent on the point.

Subdivision f ; Sanctions. Original Rule 16 did not mention the sanctions that might be imposed for failing to comply with the rule. However, courts have not hesitated to enforce it by appropriate measures. Wabash R. Douglas Theatre , F. To reflect that existing practice, and to obviate dependence upon Rule 41 b or the court's inherent power to regulate litigation, cf.

Rogers , U. Furthermore, explicit reference to sanctions reenforces the rule's intention to encourage forceful judicial management. Rule 16 f incorporates portions of Rule 37 b 2 , which prescribes sanctions for failing to make discovery. This should facilitate application of Rule 16 f , since courts and lawyers already are familiar with the Rule 37 standards. Among the sanctions authorized by the new subdivision are: preclusion order, striking a pleading, staying the proceeding, default judgment, contempt, and charging a party, his attorney, or both with the expenses, including attorney's fees, caused by noncompliance.

The contempt sanction, however, is only available for a violation of a court order. The references in Rule 16 f are not exhaustive. As is true under Rule 37 b 2 , the imposition of sanctions may be sought by either the court or a party.

In addition, the court has discretion to impose whichever sanction it feels is appropriate under the circumstances. Its action is reviewable under the abuse-of-discretion standard. See National Hockey League v. Metropolitan Hockey Club, Inc. Subdivision b. One purpose of this amendment is to provide a more appropriate deadline for the initial scheduling order required by the rule. The former rule directed that the order be entered within days from the filing of the complaint. This requirement has created problems because Rule 4 m allows days for service and ordinarily at least one defendant should be available to participate in the process of formulating the scheduling order.

The revision provides that the order is to be entered within 90 days after the date a defendant first appears whether by answer or by a motion under Rule 12 or, if earlier as may occur in some actions against the United States or if service is waived under Rule 4 , within days after service of the complaint on a defendant.

The longer time provided by the revision is not intended to encourage unnecessary delays in entering the scheduling order. Indeed, in most cases the order can and should be entered at a much earlier date. Rather, the additional time is intended to alleviate problems in multi-defendant cases and should ordinarily be adequate to enable participation by all defendants initially named in the action. In many cases the scheduling order can and should be entered before this deadline.

However, when setting a scheduling conference, the court should take into account the effect this setting will have in establishing deadlines for the parties to meet under revised Rule 26 f and to exchange information under revised Rule 26 a 1.

New paragraph 4 has been added to highlight that it will frequently be desirable for the scheduling order to include provisions relating to the timing of disclosures under Rule 26 a.

While the initial disclosures required by Rule 26 a 1 will ordinarily have been made before entry of the scheduling order, the timing and sequence for disclosure of expert testimony and of the witnesses and exhibits to be used at trial should be tailored to the circumstances of the case and is a matter that should be considered at the initial scheduling conference. Similarly, the scheduling order might contain provisions modifying the extent of discovery e.

The report from the attorneys concerning their meeting and proposed discovery plan, as required by revised Rule 26 f , should be submitted to the court before the scheduling order is entered. Their proposals, particularly regarding matters on which they agree, should be of substantial value to the court in setting the timing and limitations on discovery and should reduce the time of the court needed to conduct a meaningful conference under Rule 16 b.

As under the prior rule, while a scheduling order is mandated, a scheduling conference is not. However, in view of the benefits to be derived from the litigants and a judicial officer meeting in person, a Rule 16 b conference should, to the extent practicable, be held in all cases that will involve discovery.

This subdivision, as well as subdivision c 8 , also is revised to reflect the new title of United States Magistrate Judges pursuant to the Judicial Improvements Act of Subdivision c. The primary purposes of the changes in subdivision c are to call attention to the opportunities for structuring of trial under Rules 42, 50, and 52 and to eliminate questions that have occasionally been raised regarding the authority of the court to make appropriate orders designed either to facilitate settlement or to provide for an efficient and economical trial.

The prefatory language of this subdivision is revised to clarify the court's power to enter appropriate orders at a conference notwithstanding the objection of a party. Of course settlement is dependent upon agreement by the parties and, indeed, a conference is most effective and productive when the parties participate in a spirit of cooperation and mindful of their responsibilities under Rule 1.

Paragraph 4 is revised to clarify that in advance of trial the court may address the need for, and possible limitations on, the use of expert testimony under Rule of the Federal Rules of Evidence. Even when proposed expert testimony might be admissible under the standards of Rules and of the evidence rules, the court may preclude or limit such testimony if the cost to the litigants—which may include the cost to adversaries of securing testimony on the same subjects by other experts—would be unduly expensive given the needs of the case and the other evidence available at trial.

Paragraph 5 is added and the remaining paragraphs renumbered in recognition that use of Rule 56 to avoid or reduce the scope of trial is a topic that can, and often should, be considered at a pretrial conference.

Renumbered paragraph 11 enables the court to rule on pending motions for summary adjudication that are ripe for decision at the time of the conference.

Often, however, the potential use of Rule 56 is a matter that arises from discussions during a conference. The court may then call for motions to be filed. Paragraph 6 is added to emphasize that a major objective of pretrial conferences should be to consider appropriate controls on the extent and timing of discovery.

In many cases the court should also specify the times and sequence for disclosure of written reports from experts under revised Rule 26 a 2 B and perhaps direct changes in the types of experts from whom written reports are required.

Consideration should also be given to possible changes in the timing or form of the disclosure of trial witnesses and documents under Rule 26 a 3. Paragraph 9 is revised to describe more accurately the various procedures that, in addition to traditional settlement conferences, may be helpful in settling litigation. Even if a case cannot immediately be settled, the judge and attorneys can explore possible use of alternative procedures such as mini-trials, summary jury trials, mediation, neutral evaluation, and nonbinding arbitration that can lead to consensual resolution of the dispute without a full trial on the merits.

The rule acknowledges the presence of statutes and local rules or plans that may authorize use of some of these procedures even when not agreed to by the parties.

See 28 U. The rule does not attempt to resolve questions as to the extent a court would be authorized to require such proceedings as an exercise of its inherent powers. The amendment of paragraph 9 should be read in conjunction with the sentence added to the end of subdivision c , authorizing the court to direct that, in appropriate cases, a responsible representative of the parties be present or available by telephone during a conference in order to discuss possible settlement of the case.

The sentence refers to participation by a party or its representative. Whether this would be the individual party, an officer of a corporate party, a representative from an insurance carrier, or someone else would depend on the circumstances.

Particularly in litigation in which governmental agencies or large amounts of money are involved, there may be no one with on-the-spot settlement authority, and the most that should be expected is access to a person who would have a major role in submitting a recommendation to the body or board with ultimate decision-making responsibility. The selection of the appropriate representative should ordinarily be left to the party and its counsel.

Finally, it should be noted that the unwillingness of a party to be available, even by telephone, for a settlement conference may be a clear signal that the time and expense involved in pursuing settlement is likely to be unproductive and that personal participation by the parties should not be required.

The explicit authorization in the rule to require personal participation in the manner stated is not intended to limit the reasonable exercise of the court's inherent powers, e. Heileman Brewing Co. Joseph Oat Corp. New paragraphs 13 and 14 are added to call attention to the opportunities for structuring of trial under Rule 42 and under revised Rules 50 and Paragraph 15 is also new. It supplements the power of the court to limit the extent of evidence under Rules and a of the Federal Rules of Evidence, which typically would be invoked as a result of developments during trial.

Limits on the length of trial established at a conference in advance of trial can provide the parties with a better opportunity to determine priorities and exercise selectivity in presenting evidence than when limits are imposed during trial. Any such limits must be reasonable under the circumstances, and ordinarily the court should impose them only after receiving appropriate submissions from the parties outlining the nature of the testimony expected to be presented through various witnesses, and the expected duration of direct and cross-examination.

The amendment to Rule 16 b is designed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur. Rule 26 f is amended to direct the parties to discuss discovery of electronically stored information if such discovery is contemplated in the action.

Form 35 is amended to call for a report to the court about the results of this discussion. In many instances, the court's involvement early in the litigation will help avoid difficulties that might otherwise arise.

Rule 16 b is also amended to include among the topics that may be addressed in the scheduling order any agreements that the parties reach to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection.

The parties may agree to various arrangements. Parties in a lawsuit file pleadings written statements presenting each side of the case before trial to elucidate the issues to be resolved. A continuance may be granted, however, in a case that was scheduled for trial before the issues were joined or clearly established. After a trial has begun or while motions are made pending the decision, a court can grant a continuance provided adequate grounds exist.

The trial of a case that has been remanded sent back by an appellate court to a lower court for a new trial may be continued at a later date if there is not enough time to prepare for the new trial.

When the parties consent to or stipulate a postponement of a case, a court will grant a continuance only if their agreement meets its approval. A party relinquishes or waives the right to obtain a continuance if he or she 1 fails to request one; 2 proceeds with the case after the motion for a continuance has been denied without making an exception to the ruling; or 3 voluntarily discontinues the action.

Yeazell, Stephen C. 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, 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 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 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 abrogation of Rule 74 a.

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.

Changes Made After Publication and Comments. Rule 6 e 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. Three days are added after the prescribed period otherwise expires under Rule 6 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 when the prescribed period would otherwise expire under Rule 6 a can be illustrated by assuming that the thirtieth day of a thirty-day period is a Saturday.

Under Rule 6 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 6 a the period expires on Tuesday. Three days are then added—Wednesday, Thursday, and Friday as the third and final day to act. If the period prescribed expires 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 6 e 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 6 a.

If there is no legal holiday, the period expires on the Friday two weeks after the paper was mailed. The three added Rule 6 e 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 After Publication and Comment.

Changes were made to clarify further the method of counting the three days added after service under Rule 5 b 2 B , C , or D. The language of Rule 6 has been amended as part of the general restyling of the Civil 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. Subdivision a has been amended to simplify and clarify the provisions that describe how deadlines are computed. Subdivision a governs the computation of any time period found in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.

In accordance with Rule 83 a 1 , a local rule may not direct that a deadline be computed in a manner inconsistent with subdivision a. The time-computation provisions of subdivision a apply only when a time period must be computed. They do not apply when a fixed time to act is set. The amendments thus carry forward the approach taken in Violette v.

Days, Inc. Subdivision a does not apply when computing a time period set by a statute if the statute specifies a method of computing time. See, e. Subdivision a 1. New subdivision a 1 addresses the computation of time periods that are stated in days. It also applies to time periods that are stated in weeks, months, or years. 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 day period and a day period that started on the same day usually ended on the same day—and the day period not infrequently ended later than the day period. See Miltimore Sales, Inc. Int'l Rectifier, Inc. Under new subdivision a 1 , 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, with only one exception: 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.

An illustration is provided below in the discussion of subdivision a 5. Subdivision a 3 addresses filing deadlines that expire on a day when the clerk's office is inaccessible. Periods previously expressed as less than 11 days will be shortened as a practical matter by the decision to count intermediate Saturdays, Sundays, and legal holidays in computing all periods. Many of those periods have been lengthened to compensate for the change. Most of the day periods were adjusted to meet the change in computation method by setting 14 days as the new period.

A day period corresponds to the most frequent result of a day period under the former computation method—two Saturdays and two Sundays were excluded, giving 14 days in all. A 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 day periods to replace day periods. Thirty-day and longer periods, however, were generally retained without change. Subdivision a 2. New subdivision a 2 addresses the computation of time periods that are stated in hours.

No such deadline currently appears in the Federal Rules of Civil Procedure. But some statutes contain deadlines stated in hours, as do some court orders issued in expedited proceedings. Under subdivision a 2 , a deadline stated in hours starts to run immediately on the occurrence of the event that triggers the deadline. The deadline generally ends when the time expires. If, however, the time period expires at a specific time say, p.

Subdivision a 3 addresses situations when the clerk's office is inaccessible during the last hour before a filing deadline expires. Subdivision a 2 B directs that every hour be counted. Thus, for example, a hour period that commences at a. Subdivision a 3. When determining the last day of a filing period stated in days or a longer unit of time, a day on which the clerk's office is not accessible because of the weather or another reason is treated like a Saturday, Sunday, or legal holiday.

When determining the end of a filing period stated in hours, if the clerk's office is inaccessible during the last hour of the filing period computed under subdivision a 2 then the period is extended to the same time on the next day that is not a weekend, holiday, or day when the clerk's office is inaccessible.

Weather can still be a reason for inaccessibility of the clerk's office. The rule does not attempt to define inaccessibility. Rather, the concept will continue to develop through caselaw, see, e. In addition, many local provisions address inaccessibility for purposes of electronic filing, see, e. Rule 5. Subdivision a 4.

New subdivision a 4 defines the end of the last day of a period for purposes of subdivision a 1. Subdivision a 4 does not apply in computing periods stated in hours under subdivision a 2 , and does not apply if a different time is set by a statute, local rule, or order in the case.



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