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Minnesota Adopts New Timing Rules

Understanding the new timing rules for Minnesota litigation practice that will take effect on January 1, 2020  

By Hon. Eric Hylden, Michael B. Johnson, and David F. Herr

 

1019-Timing-ChangesTake your pick, but we think Yogi Berra’s insight on timing may be deeper than Albert Einstein’s. Time in litigation is no illusion, and it is definitely worth getting right. After January 1, 2020, it should be a bit easier to get it right.

Timing in Minnesota litigation practice is about to become more important—but probably more effortless as well. Come the new year, most of us will have to re-learn how to count days for Minnesota cases. In June, the Minnesota Supreme Court announced extensive—if not exactly earth-shaking—changes to the rules of civil procedure, civil appellate procedure, and general rules of practice, which simplify how to count days in determining deadlines.1

The changes follow—at least in broad strokes—the changes made to the federal rules in 2009.2 All days are generally counted (with a few exceptions, there is no more omitting of weekends and holidays from the calculation, even for short periods), and most of the rules’ time periods are adjusted to a 7-, 14-, 21-, and 28-day period schedule. A bonus benefit of this simplification of deadlines is that a response, depending on how a document is served or filed, will generally be due on the same day of the week as the event that triggers the deadline. So it should become less frequent for a deadline to fall on a weekend or holiday.

History 

These changes have had a long gestation period. The Federal Rules of Civil Procedure were amended in 2009 in regard to timing, and they have functioned well in federal practice. Later that year, the Minnesota Supreme Court Advisory Committee on Rules of Civil Procedure recommended in its report that the Minnesota rules follow the federal lead. The advisory committee renewed this recommendation in a 2017 report to the court, encouraging adoption of the federal counting rules after consideration by the Court’s other advisory committees. In 2016, the MSBA also recommended making these changes in a petition filed with the Court. The Court invited public comments on the proposed changes, and there were no substantial objections to making the proposed amendments, though the Court accepted its advisory committee’s recommendation that other interested committees consider the changes. We reported the committee’s earlier recommendations—including proposed amendments unrelated to timing that were adopted in 2018—in our earlier Bench & Bar article.3

Both the Minnesota Supreme Court Advisory Committee on Rules of Civil Appellate Procedure and the Minnesota Supreme Court Advisory Committee on General Rules of Practice met and endorsed the move to this simplified version of day-counting. Both committees proposed specific amendments, and the court adopted changes in all these rules, each taking effect on January 1, 2020.

Effective date

These amendments take effect on January 1, 2020, and the amendments apply to further proceedings in actions pending on the effective date and to those filed later. The orders adopting the rules initially applied the changes only to actions filed after the effective date, but the Supreme Court amended those orders to create the uniform application of the new rules to all new proceedings in cases, subject only to the ability of the courts to order that the old rules would apply to a particular circumstance. (References to both orders are included in note 1.) We expect there would be few occasions where obtaining an exemption from the new rules, in favor of the old, would be necessary, and that these would be confined to the first month or so of 2020.

Scope of changes

These amendments are extensive in number. The changes are inventoried in the table accompanying (see above this article), with the most significant changes made to Minn. R. Civ. P. 6, which changed the rules for counting time (without itself changing any deadlines). The simple description of this change is that the omission of counting legal holidays and weekend days for certain short periods is gone—all days are counted. Coupled with this far-reaching change are myriad adjustments in the specific deadlines imposed throughout the rules.

For sheer volume of changes, the general rules win easily. Counting a deletion and an adjoining addition as a single change, the court’s order on the general rules effects more than 120 changes to specific timing deadlines. But numbers, as is often so, are not really a very good measure of the magnitude of these changes. The key change doesn’t really affect any specific time limit—it is the amendment of Minn. R. Civ. P. 6 to change the rules for counting days that drives the majority of the remaining changes. The fundamental change is that for all time periods under the rules, the first day continues to be omitted, but every ensuing day is counted. Saturdays, Sundays, and legal holidays are no longer excluded. This means that for periods that don’t span a legal holiday, 7 days under the new counting rules is equivalent to 5 days under the old counting regime. In turn, that general equivalency drives many of the specific changes—nearly every occurrence of an old 5-day deadline is changed to 7 days.

In addition to adjusting shorter time limits to account for the different counting rules, the 2019 amendments also simplified the time limit by standardizing most of the limits that are shorter than 30 days into either a 7-day, 14-day, 21-day, or 28-day limit. Several 30-day limits also became 28-day limits—but (quite consciously) not those relating to post-trial motions, where the time to appeal would be affected. The changes to 10-day limits are a little less predictable than the 5-day limits, as they generally are lengthened to 14 days, but occasionally shortened to 7. Twenty-day limits are uniformly changed to 21 days, and 15-day limits are similarly always transformed to become 14-day limits.

The new set of deadlines will prove easy to master—just as the 2009 federal changes have proven to be—but in the near term, lawyers will have to pay attention to the new rules. Mercifully, many of the deadlines are lengthened. Although a few 10-day deadlines will become 7-day deadlines, most are extended to allow 14 days. All 20-day deadlines are converted to 21 days. 

The simplification of deadlines should bring three kinds of benefits. First, they are easier to predict and to remember. The overall number of different deadlines is reduced. Even more important, the change will allow most deadlines to fall on a weekday. Because most documents are required to be served and filed electronically, if a response is allowed or required, the 7/14/21/28 regime will result—at least the majority of the time—in the due date for that response falling on the same day of the week. The amended rules retain the provisions of Rule 6, allowing an additional day for service or filing made after 5:00 p.m. and three additional days after service or filing by mail. Third, there is an advantage of counting “state” days the same way “federal” days are counted—not because the federal method is intrinsically superior, but because uniformity of state and federal practice is preferable, at least where there is no good reason for a difference.

What doesn’t change

Many aspects of timing under the rules remain unchanged. Time limits measured in hours, weeks, months, or years do not change. Existing time limits of 7, 14, 21, and 28 days don’t change. Thirty-day deadlines are not generally reduced to 28 days where the shortened deadlines would create undue risk of missing jurisdictional deadlines that cannot be extended.

The established counting mechanics continue—you don’t count the first day, you count the last day, etc. If the end date of a specified period is a Saturday, Sunday, or legal holiday, the next day that is not one of those is the required end date. Legal holidays are defined just as they are now: as defined by statute4 for the state or any state-wide branch, and also any day that the U.S. Postal Service does not operate.

The rules continue to provide for extra time for service by mail (where that is still allowed) or service late in the day. Three extra days are allowed where a document is served by mail, and one day where it is served late in the day.

A life-ring is available

The Minnesota Supreme Court’s orders adopting all these changes incorporate the provision of Minn. R. Civ. P. 81.01(b), making the amendments apply to both pending and new actions after the effective date of January 1, 2020. The Court expressly incorporated the safe harbor allowed by the rule “to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible, or would work injustice, in which event the former procedure applies.” Given the non-Draconian nature of these changes, as well as the general liberal approach given to deadlines where there is no game-playing or prejudice to the court or other parties, this exception will probably rarely need to be invoked.

A word on counting backwards

Because Minnesota practice involves many deadlines that are measured a specified number of days before an event (typically a scheduled hearing), the rule now includes express directions to count “backwards” from the event, and if the “last” day falls on a holiday or weekend day, the due date count extends back to the last day that is not one of those days. This is a monumental change—not because it is viewed as changing the existing practice, but because it should obviate the endless confusion on this question.

Practice pointers 

At least in the short term, you’ll need to check and double-check the deadlines under the amended rules.

Review the forms and procedures used in your practice and update them to conform to the new time limits. The table that accompanies this article may be helpful there.

Consider taking a “close is good enough” approach to slight timing miscues made by your adversary, especially during the first part of 2020—the courts will hear, but not genuinely welcome—most motions over “their brief was untimely by a day so we need to strike the hearing.” There often is a way to work out such a problem short of “Gotcha!”

 Your staff will appreciate receiving a tutorial on the new counting regime. Their questions may also help clarify any remaining uncertainties you have.

 One notable exception was consciously made to retain the 10-day period for removal of a judge under R. Civ. P. 63.03. Several other exceptions were also made in the General Rules of Practice.

Conclusion

The advisory committees continue to monitor the rules and eagerly seek to know about how they are working to help achieve the “just, speedy, and inexpensive determination of every action.”5

RULES OF CIVIL PROCEDURE

SPECIFIC CHANGE
RULE NUMBER
3 days changed to 14
55.01(b)
5 days changed to 7
4.042
5.05
32.04(c)
10 days changed to 14
4.042
12.01 [2x]
15.01
26.06(d)
35.04
59.04
68.01(a); 68.01(e); 68.02(a); 68.02(d)
10 days changed to 21
4.042
15 days changed to 14
59.05
20 days changed to 21
4.042
12.01 [4x]; 12.06
15.01
27.01(b)
53.07

RULES OF CIVIL APPELLATE PROCEDURE

SPECIFIC CHANGE
RULE NUMBER
5 days changed to 7
105.02, 105.03
115.03
116.03
120.02
134.01
140.02
10 days changed to 7
110.02
111.01
10 days changed to 14
107.02
109.02 [3x]
110.02 [4x]
111.01
115.04 [2x]
131.01 [2x]
132.01
140.01 [2x]
143.05
15 days changed to 14
109.02
110.03 [2x]
20 days changed to 21
111, subd. 4

GENERAL RULES OF PRACTICE

SPECIFIC CHANGE
RULE NUMBER
1 day to 24 hours
602
1 day changed to 7
136.01
2 days changed to 7
113.03(b)
3 days changed to 72 hours
4.03
3 days changed to 7
115.03(c)
115.04(c)
208
5 “business days”
changed to 7 days
611(c)
5 days changed to 7
113.03(b)
114.09(b)(2)
126
141.01
303.01(c) [2x]; 303.03(a)(3)
353.02
359.01
361.01; 361.02; 361.03 [2x]; 361.04
364.05; 364.09
365.04
371.04 [2x]
372.04 [2x]
377.10
416(b) [2x]
509(b); 509(d) [2x]
510(a)
7 days to 14
115.04(b)
9 days to 14
115.03(b)
10 days changed to 7
104
108
114.05
10 days changed to 14
9.04 [2x]
107
114.09(b)(2), (e) [4x]
114, App. II(G)
126
141.01
303.03(a)(1)
360.02
361.02; 361.02; 361.03
363.04
364.14
370.06 [2x]
371.05; 371.07 [2x]
372.06 [2x]
377.04; 377.05
508
703
14 days changed to 21
115.04(a)
303.03(a)(2)
372.04
15 days changed to 14
128
20 days changed to 21
8.07(a)
114.09(e); (f) [2x]
119.05(c) [2x]
122
364.03
370.01; 370.04 [2x]; 370.05 [2x]
371.01; 371.05
372.01
377.02; 377.05
515
519
520(a) & (b)
521(b) [2x], 521(c); 521(e)
30 days to 28
114, App. II(D), II(G)
146.03
304.03(a)
366.01 [2x]
377.04; 377.05
410(a); 410(b)
418(c)
510(b) [2x]
45 days to 30
363.04


Judge ERIC HYLDEN is a district court judge in Duluth. He has served as chair of the Minnesota Supreme Court Advisory Committee on Rules of Civil Procedure throughout the consideration of these timing changes. He thanks his law clerk, Jordan Leitzke, for his contributions to this article.

MICHAEL B. JOHNSON is senior legal counsel in the Legal Counsel Division of Minnesota State Court Administration. Mike serves as staff to the advisory committee.

DAVID F. HERR practices at Maslon LLP in Minneapolis and is reporter for the advisory committee.


Notes

The Court’s 6/20/2019 adoption orders, including commentary from the Court as well as the text of the adopted rules, is available on the Court’s website at: 

Civil Rules: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/RecentRulesOrders/ORADM048001-062019.pdf

General Rules: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/RecentRulesOrders/ORADM098009-062019.pdf

Civil Appellate Rules: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/RecentRulesOrders/ORADM098006-062019.pdf. Amended orders that modify the application of the amendments to actions pending on the 1/1/2020 effective date, each entered on 8/6/2019, are also available on that site:

Civil Rules: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/RecentRulesOrders/ ORADM048001-080619.pdf 

General Rules: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/RecentRulesOrders/ ORADM098009-080619.pdf

Civil Appellate Rules: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/RecentRulesOrders/ ORADM098006-080619.pdf

2 This follows the advisory committees’ general preference for maintaining similarity between the state and federal rules, at least where the federal rules make some sense and issues unique to state court litigation don’t suggest that a different course is better. See generally David F. Herr, A Parting of Ways: Amendments to the Civil Rules—State and Federal, 57 Bench & Bar of Minn., May/June 2000, at 29.

3 See Hon. Eric Hylden, Michael B. Johnson & David F. Herr, Wide Variety of New Civil Rules Take Effect in July, 75 Bench & Bar of Minn., May/June 2018, at 18.

4 See Minn. Stat. §645.44, subd. 5. 

5 See Minn. R. Civ. P. 1.

 

 

The authors are indebted to the entire membership of the advisory committee for their hard work on these amendments. The wisdom of the group clearly exceeded that of any single member.