Confusion sometimes arises about when a litigant is entitled to the extra three days to act or respond under Kentucky CR 6.05 and its federal counterpart, FRCP 6(d), when another party serves the litigant by mail or e-mail.
First, Kentucky’s amended Rule 6.05 (effective Jan. 1, 2014), provides that the extra three days that are afforded to a party when served by regular mail also apply when service is by e-mail or fax, even though such service is usually effectuated instantaneously. Presumably the rationales for providing the extension for electronic service include the fact that such service might be made late in the day (after normal business hours), and that some lawyers might not have access to e-mail when an e-mail is received.
Lawyers should bear in mind that this extension of time is afforded only for actions that are triggered by service, not those that must be taken within a certain time after court action or filing. For instance, the extension does not apply to the deadline for filing a notice of appeal or to the filing of certain post-judgment motions, such as those filed under CR 59. Counsel should verify that the three-day extension applies before taking the extra time to act or respond. When time is of the essence, and the serving party wishes to avoid giving an opponent an extra three days, the serving party may serve documents by personal service.
The three-day mail rule can be somewhat meaningless in motion practice. Under the local rules of most Kentucky venues, motions are required to be filed and served only three business days before the date on which the motion is noticed to be heard. (An exception is made for motions for summary judgment, which are required under CR 56.03 to be served at least 10 days before the date of hearing.) Where service of a motion is done by regular mail, opposing parties often receive a copy of the motion a day or two before the date the hearing is noticed, though service on non-local opponents may even occur on the day of the hearing itself or even afterwards. Parties can obtain more advance notice of motions by filing a notice of election of electronic service under CR 5.02, as amended effective Jan. 1, 2014. Parties who have formally elected to make and receive electronic service must be provided an electronic copy of any documents served on or before the day they are filed. In addition, most circuit judges are lenient about providing additional time for opposing parties to prepare and file responses to motions that are served a very short time before the date set for hearing.
For federal litigants, FRCP 6(d) states that the three extra days for mail service are added to the time period for action or response when service is made under FRCP 5(b)(2)(E), which relates to electronic service. (Under the federal rule, unlike the state rule, the extension is also provided when service is made by leaving the document with the court clerk for a party who has no known address, or by any other agreed method other than personal service at the recipient’s office or residence.) Likewise, Joint General Order 11-02 of the Eastern and Western Districts of Kentucky incorporated a set of administrative procedures that include a provision that “service by electronic means is treated the same as service by mail for the purposes of adding three (3) days to the prescribed period to respond.”
Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
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