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Federal Bar Update: The 3-business-day provision for seeking extensions of time

January 23, 2019

FedBarMaley-sigEffective Dec. 1, the Southern District of Indiana adopted various Local Rules amendments, specifically to Local Rules 5-2, 5-3 and 5-7 (electronic filing); Local Rule 6-1 (extensions of time); Local Rule 81-2 (removed actions), and; Local Rule 83-5 (admission). The amendments to Local Rule 6-1(a) are significant in that they impact the process of seeking extensions of time for filing deadlines.

Practitioners know that Local Rule 6-1(b) provides for an automatic extension of time for the first deadline to a pleading or any written request for discovery or admissions if counsel consent or could not be reached to obtain consent. That subsection remains unchanged.

Local Rule 6-1(a), however, is amended to add a new subsection — specifically Local Rule 6-1(a)(5) — that requires motions for extension of time to “be filed at least three business days prior to the deadline absent extraordinary circumstances, or summary denial may result.”

The amendment originated from the judges, who were frequently confronted with extension motions filed on the due date. This left the requesting party uncertain of status and resulted in frequent inquiries to court staff on the due date seeking to find out status. The amendment gives the court an opportunity to address the motion prior to the deadline, and thus also gives the moving party the chance to meet the deadline if the motion is denied. This is a common-sense amendment that is common in other courts, such as a seven-day requirement for extension motions in Indiana appellate practice, per Ind. App. R. 35.

Practitioners in the Southern District should thus not only calendar all deadlines in their cases but should also calendar the three-business day deadline for seeking extension for each deadline.

As for “extraordinary circumstances” that would allow an extension motion less than three business days from the deadline, including on the deadline itself, the new subdivision does not further define or enumerate what type of situations would meet this standard. And as this rule invokes the court’s discretion, there could well be some variance among judges as differing situations are presented.

A good starting point for understanding the standard is, of course, the plain language definition of “extraordinary,” which, per Merriam-Webster, means “going beyond what is usual, regular, or customary; exceptional to a very marked extent.” Similarly, Black’s Law Dictionary defines “extraordinary circumstances” as “out of the ordinary, exceeding the usual, average, or normal.”

From discussions within the Local Rules Committee and subsequently during the recent annual Federal Bar Association federal civil practice seminar, that counsel is busy would not by itself constitute extraordinary circumstances excusing the three business day advance extension request. Instead, extraordinary circumstances would likely be situations unforeseen three business days before the deadline, such as serious illness, emergency court proceedings, family emergencies, etc.

Note that the court has already denied several extension motions that were not timely filed three business days before the deadline, and likely more denials will follow. For now, the court has given leave to show cause, but practitioners should take care to calendar and meet this new deadline. The court rightfully expects its Local Rules to be followed.

Note that presently Local Rule 6-1 from the Northern District does not have any provision requiring the extension motion to be filed any specific time prior to the deadline. Nonetheless, practitioners seeking extensions close to or on the due date expose themselves to the risk of denial, so in the Northern District, seeking extension requests at least three business days before the deadline is a good practice to follow.•

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• John Maley — jmaley@btlaw.com — is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90.

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