Legal Deadlines:  What does “Last Day to File” Mean? 

By Matthew Clarke

If you are a civil litigation lawyer in private practice or you represent yourself in a civil case, legal deadlines are a part of your life.  Your calendar must always be accurate and contain all dates and legal deadlines.  There are so many legal deadlines!!  You must know what last day to file means.  For example, in California, there are separate legal deadlines depending on how you serve a document.  You can serve a document by personal delivery five days later than you can serve it by U.S. Mail.  If you serve a document by overnight mail, a different deadline applies.  What a mess!

Here’s the question for today:  When a Court Rule says your last day to file something is “five days” before a hearing, does that mean you must file by close of business (i.e., 5 p.m.) or does last day to file mean that you have an additional seven hours to work on your document and file it before midnight on that last day to file.

With electronic filing becoming a standard feature of most courts (the entire state court system in Texas and many California counties), you would think that Court Rules would allow you to file up to midnight on the date a document is due and still meet your legal deadlines.  The “system” would mark the item filed during the final hours of the last day.  If you filed after midnight on the last day to file, you missed the deadline.

The Federal Courts have addressed this issue in Federal Rule of Civil Procedure, Rule 6 which defines the last day to file a document as follows:

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:

(A) for electronic filing, at midnight in the court’s time zone; and

(B) for filing by other means, when the clerk’s office is scheduled to close.

If you are in the Federal Court system and filing using ECF, you’ve got until midnight.  If you represent yourself and must manually file your document, you have less time.

If your venue is Texas and you can file electronically, you will want to read Code of Civil Procedure section 21(f)(5).  That section states that:

(5) Timely Filing. Unless a document must be filed by a certain time of day, a document is considered timely filed if it is electronically filed at any time before midnight (in the court’s time zone) on the filing deadline. An electronically filed document is deemed filed when transmitted to the filing party’s electronic filing service provider, except:

(A) if a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a Saturday, Sunday, or legal holiday;

and

(B) if a document requires a motion and an order allowing its filing, the document is deemed filed on the date that the motion is granted.

Also, Texas law gives you a little reprieve if your filing does not go through because of a technical error.  Section 21(f)(6) states that, “if a document is untimely due to a technical failure or a system outage, the filing party may seek appropriate relief from the court. If the missed deadline is one imposed by these rules, the filing party must be given a reasonable extension of time to complete the filing.”  This rule doesn’t specify exactly what type of technical failure would justify relief, but if you miss a deadline due to such an error, the rule states that you may request relief.

In California, the rules are less clear and vary from County to County. For example, Code of Civil Procedure section 1010.6(d)(1)(D) says that:

A court that elects to require electronic filing pursuant to this subdivision may permit documents to be filed electronically until 12 a.m. of the day after the court date that the filing is due, and the filing shall be considered timely. However, if same day service of a document is required, the document shall be electronically filed by 5 p.m. on the court date that the filing is due.

What this code section tells us is that if you must serve your document, let’s say, on a Tuesday, you must file it by 5 p.m. and serve it before 5 p.m.  In other words, you don’t really have until midnight if you also must serve the document.

However, for items that don’t require immediate serviced (maybe an initial complaint), you have until midnight.

It is important to note that California Rules of Court, Rule 2.253(b)(7) states, “Any document required to be electronically filed with the court under this subdivision that is received electronically after the close of business on any day is deemed to have been filed on the next court day, unless by local rule the court provides that any document required to be electronically filed with the court under this subdivision that is received electronically before midnight on a court day is deemed to have been filed on that court day, and any document received electronically after midnight is deemed filed on the next court day.” (Italics provided.)

This Court Rule creates a complication for legal deadlines: You must look at local rules for each County in California to determine whether you have until midnight to meet your legal deadlines.  In California, unless you are in a major time crunch, the best practice is to file documents by the time the court closes.

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