When a deadline falls on a weekend or a holiday, Federal Rule of Civil Procedure 6 (and its analogues Federal Rule of Bankruptcy Procedure 9006 and Federal Rule of Appellate Procedure 26) does not apply if the deadline is not calculated. In other words, if the court order states the deadline as a specific date, that date is the deadline, and it does not matter if it falls on a holiday. This is confirmed by the advisory committee’s note to the 2009 amendment: “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.” [1]
A couple of years ago, in an adversary proceeding in bankruptcy court, opposing counsel (an experienced litigator with over 30 years experience) was blindsided by learning that the rule that extends the deadline to the next business day did not apply to a deadline in the pretrial scheduling order. The deadline set in the pretrial scheduling order for the defendant to provide its expert disclosure was May 30, 2021, the Sunday of Memorial Day weekend. When I filed an objection to the substance of his expert disclosure, I also included an argument that the experts’ testimony should be excluded because the disclosure was tardy (there is case law to support this).
Opposing counsel filed a motion to extend the deadline retroactively, but still did not seem to understand that the time-computation rule does not apply to a specific date. In his motion to extend the deadline, he stated:
Prior to filing Defendant’s expert designation [the Tuesday after Memorial Day], Counsel for [Defendant] reviewed Federal Bankruptcy 9006 and believed the rule mirrored the Federal Rule of Civil Procedure that due dates on weekends and holidays followed over to the next business day. Counsel has since learned the bankruptcy rule is different than the Federal rule and asks the court’s forgiveness to permit its designation, which was served on the first business day following the Memorial Day Weekend . . . .
Indeed, [Defendant] had reviewed the language of Fed. R. Bankr. P. 9006(a)(1), which explicitly states as follows:
(a) Computing Time. The following rules apply in computing any time period specified in these rules, including the Federal Rules of Civil Procedure, in any local rule or court order, or in any statute that does not specify a method of computing time.
Therefore, it was [Defendant’s] understanding, in good faith and consistent with its reading of Rule 9006(a)(1), that where the expert designation deadline fell on Sunday, May 30, 2021, and Monday, May 31, was a federal holiday, it could submit its designation by Tuesday, June 1, 2021.
[Defendant] now accepts that its reading of Rule 9006 was inconsistent with the interpretive opinions from the 5th and 11th Circuits within the advisory notes.
I should also note that when drafting a proposed scheduling order, it was the opposing counsel who selected that specific day.
Missing a deadline happens. Misreading a rule happens. But when you try to fix the mistake, make sure you know what the rule actually is.
[1] See, e.g., In re Froiland, 589 B.R. 309, 315 (Bankr. W.D. Tex. 2018); In re Gray, 492 B.R. 923, 925 (Bankr. M.D. Fla. 2013) (“Rule 9006 only applies where the time period must be computed. It does not appear from the plain language of the rule that it applies where, like in this case, a fixed date to act is set.”)