Hurricane Dorian approaching Florida

How Does a Hurricane Affect Court Deadlines? (Dorian Edition)

Hurricane Dorian approaching Florida

National Oceanic and Atmospheric Administration (NOAA) image of Hurricane Dorian taken Sunday, Sept. 1, 2019, at 17:00 UTC.

Even though we currently have sunny skies, many courts in Florida are closed today due to the threat of Hurricane Dorian (Specifically, the Second and Third Districts are closed today, and the Fourth and Fifth Districts are closed today and tomorrow, with the First and Florida Supreme Court still open as of this writing. How does that affect court deadlines? The short answer: In Florida state courts, you won’t know until the storm is over, so don’t count on a deadline moving. And in Federal Court, the courthouse being closed does not mean you can’t file, so your best bet is to meet any deadline today. Here’s the rules-geek long answer:

Deadlines in Florida State Courts

An emergency closure does not count as a “Court Holiday” under Florida Rules of Judicial Administration Rule 2.514(a)(6)(B) — the Courts are not calling it a “holiday,” and doing so probably has personnel implications that Court administration doesn’t want to deal with. However, the Florida Supreme Court generally issues administrative orders extending deadlines in the affected counties. Right now, the Florida Supreme Court’s emergency page states:

After a storm, orders will be issued by the Chief Justice retroactively extending deadlines in storm-damaged areas. Attorneys and others who missed legal deadlines or hearing dates in areas hard-hit by a hurricane will be protected by these orders, which will be issued once the courts in these areas reopen. They will be posted on our Administrative Orders page when issued.

(This from the Florida Supreme Court Emergency Page as of noon on September 3, 2019). As of this writing, there are no such orders in place, since the threat is not yet over. Check the Court’s administrative orders emergency page for updates. But also, we have not actually been hit so far, so I would be concerned that the Court is not going to ultimately extend deadlines for all. Even with Courts closed, meet all deadlines today, or timely seek extensions. The Florida appellate courts, in particular, are generous with timely-requested enlargements, so don’t hesitate to ask the Court for them.

But what about deadlines that are not normally allowed to be extended? Rule 1.090 states that, even for good cause, a Court:

may not extend the time for making a motion for new trial, for rehearing, or
to alter or amend a judgment; making a motion for relief from a judgment under
rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a
motion for a directed verdict.

We did this analysis for Hurricane Matthew, so check out our prior post on that one.

Deadlines in Federal Courts

The Federal Rules of Appellate Procedure state that when calculating deadlines computed as days:

if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

Federal Rule of Appellate Procedure 26(a)(2)(C). The Federal rules have an additional helpful provision expressly addressing “Inaccessibility” of the Clerk’s Office:

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s
office is inaccessible:
(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended
to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

Federal Rule of Appellate Procedure 26(a)(3). But remember, a closure of the physical building does not make the clerk’s office inaccessible. For example, the Middle District of Florida website currently states:

UPDATE: 7:45 p.m. | Monday, September 2, 2019

On Tuesday, September 3, 2019, the Jacksonville, Ocala, and Orlando divisions are closed, and the Fort Myers and Tampa divisions are open.

On Wednesday, September 4, 2019, the Jacksonville division is closed, and the Fort Myers, Ocala, Orlando, and Tampa divisions are open.

CM/ECF remains available. The website will be updated if additional closures are required.

And the Eleventh Circuit does not even mention the hurricane on its website as of this writing, but since all filings are supposed to be made through ECF or through Atlanta, any “inaccessibility” argument won’t get very far.

Requesting Extensions After the Fact

Remember that if you miss a deadline in most courts, you have a higher burden to prove entitlement to the extension. Both state and federal courts are going to require a showing of good cause and excusable neglect. So meet your filing deadlines today, or at the very least get extension request on file before the deadline passes.

Eleventh Circuit Amended Rules Go Into Effect Today With Minor Changes

Eleventh Circuit Court of Appeals, Atlanta

Eleventh Circuit Court of Appeals, Atlanta

Amendments go into effect today, August 1, 2017, for six of the Eleventh Circuit’s local rules.  The changes are minimal and, on the whole, positive for parties and practitioners alike.

  • 11th Cir. R. 22-3:  The use of the clerk’s form for filing “a second or successive habeas corpus petition or motion to vacate, set aside or correct sentence” is no longer required, but merely encouraged in some cases.
  • 11th Cir. R. 31-1(d):  In addition to jurisdictional questions on main appeals, the rule now also contemplates potential jurisdictional questions on cross-appeals, expressly providing for postponement of the due date of the appellee-cross-appellant’s brief until the court determines that the appeal should proceed.
  • 11th Cir. R. 42-2(e):  A motion to set aside a dismissal of a civil appeal for failure to file a brief or appendix must now only be accompanied by the missing document, not both as previously required.
  • 11th Cir. R. 46-1:  Incorporates some of the content from FRAP 46, IOP 3 regarding attorney admission fees, and replaces specific payment information with references to 11th Cir. R. 46-3 and the court’s website.
  • 11th Cir. R. 46-2: deletes the specific dollar amount required for bar membership renewal, instead referencing the court’s website.
  • 11th Cir. R. 46-4: deletes payment information, instead referencing the court’s website.

You can view the full text of the updated rules here [.pdf].  Give us a call if you have a federal appeal coming up–we’re experienced in navigating the numerous technicalities of the federal appellate rules.

Federal Rules of Appellate Procedure Tighten Word Limits and Ditch Mail Days for Electronic Service

A series of amendments to the Federal Rules of Appellate Procedure designed to lighten the burdens on appellate judges by tightening page limits and clarify due process procedures for inmates go into effect today. (Download the .pdf of the rules and redline here. Transmitted to Congress back in April, the changes affect Appellate Rules 4, 5, 21, 25, 26, 27, 28, 28.1, 29, 32, 35, and 40, Forms 1, 5, and 6, and create a new Form 7 for inmate filers and new Appendix to assist in determining the new, shorter, word limits for various filings. Notably, the rules also take away the so-called “mail days” from items served electronically. The rules also separate out procedures for amicus curiae participation at the merits stage of a case and on rehearing (more on this in a later blog post).

The biggest change for appellate practitioners is the complete shift to word limits rather than page limits for all filings prepared by a computer in appellate matters, and the tightening of word limits for briefs and other items already governed by word counts. While the rules committee recognized that counting words would be burdensome to inmates preparing handwritten or typed matters, and therefore left in place page limits for documents prepared by those methods, for the rest of us our filings must now comply with word limits. As explained in the committee notes:

The word limits were derived from the current page limits using the
assumption that one page is equivalent to 260 words.

But notably, this 260 word count is lower than the one used in previous rule changes. As the Committee Notes to Rule 28.1 points out, in 2005 the Committee had used a 280 words per page conversion, but “responding to concern about the length of briefs” has shaved 20 words per page from the conversion ratio. The Committee then applied this new standard to existing word counts:

Principal Brief: 13,000 words (formerly 14,000)
Reply Brief: 6,500 words (formerly 7,000)

To ensure that everyone is counting the same words, the amendments createed a new 32(f) to clarify what is excluded from the word count, deleting the former Rule 32(a)(7)(B)(iii). Don’t worry about your words in the following sections of your brief:

  • cover page
  • corporate disclosure statement
  • table of contents
  • table of citations
  • statement regarding oral argument
  • any addendum containing statutes, rules, or regulations
  • certificates of counsel
  • signature block
  • proof of service
  • any other item excluded by these rules or local rules
  • A certificate of compliance with these type-volume standards is required on most filings under new Rule 32(g) — it’s not much different than the old certificate, but it is located in a different subdivision of the rule now, so be sure to update your form briefs to make sure you are citing the correct rule in your certification and follow the updated Form 6 as your guide. The new form is more generic than the old, as it now refers to “document” rather than “brief” and must be used on all documents with type volume limit, not just briefs.

    The rule change also makes clear that local courts have the ability by local rule to enlarge these lengths, though the regional circuits must accept briefs that meet these lengths and can’t require shorter briefs. See FRAP 32(c).

    Finally, the drafters kindly put together a handy Appendix [.pdf] that includes a chart showing all of the new type-volume limitations, so there is an easy reference to knowing all the new volume limits.