The Multi-Jurisdictional Practitioner: Motions Practice – Deadlines In Federal And State Courts – DC, MD & VA, DC Trial (Fall 2018)

INTRODUCTION

In 2008, after researching the deadline for an opposition to a motion for the umpteenth time, I wrote an earlier version of this article thinking that it would be helpful to have all of the deadlines relating to motions practice for area courts in one place. I last updated this article for the Fall 2015 edition of DC Trial. Since then, the Federal Rules were amended to remove service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow 3 added days to act after being served. Additionally, the DC Superior Court Civil Rules were revised to better align with the Federal Rules. Further, the time for filing oppositions or responses to motions in Maryland District or Circuit Court now depends on whether your case is in an MDEC Court (a court with electronic filing). Lastly, the U.S. District Court for the Eastern District of Virginia has reduced the time for filing reply briefs from 14 to 6 days. I have revised the article again to account for all of these changes. As before, I begin with some rules for computing time that apply to all federal courts.¹

COMPUTING TIME UNDER THE FEDERAL RULES OF CIVIL PROCEDURE

“When the period of time is stated in days or a longer unit of time”:

• Begin counting the day after the time period starts. FRCP 6 (a)(1)(A).
• Last-day exclusion: the last day of the period is not counted if it is a Saturday, Sunday, or legal holiday or if the courthouse is closed due to bad weather or some other condition. FRCP 6 (a)(1)(C) and 6 (a)(3).
• An additional 3 days is provided if one is served under FRCP 5(b)(2)(C) (by mail), or (D)(leaving with clerk), or (F)(other consented to means). FCRP 6 (d).

“When the period of time is stated in hours,” see FRCP 6 (a)(2) and FRCP 6 (a)(3)(B).

DISTRICT OF COLUMBIA COURTS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Deadline for Opposition or Response to a Motion:

14 days. LCvR 7 (b) states: “[w]ithin 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion.”

Deadline for Replies to Oppositions or Responses:

7 days. LCvR 7 (d) states: “[w]ithin 7 days² after service of the memorandum in opposition the moving party may serve and file a reply memorandum.”

Surreplies:

Not referenced in the Local Civil Rules.

Time for Filing Dispositive Motions:

Under LCvR 7 (l) “[a] dispositive motion in a civil action shall be filed sufficiently in advance of the pretrial conference that it may be fully briefed and ruled on before the conference.”

SUPERIOR COURT

Deadline for Opposition or Response to a Motion:

14 days. Under SCR-Civil 12-I (e), “Within 14 days after service of the motion or at such other time as the court may direct, an opposing party must file and serve a statement of opposing points and authorities in opposition to the motion.”

Further, under SCR-Civil 6 (d), an additional 3 days is provided if “service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to).”

Begin counting the day after the time period starts. SCR-Civil 6 (a)(1)(A).

Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time…count every day, including intermediate Saturdays, Sundays and legal holidays. SCR-Civil 6 (a)(1)(B).

Last-day exclusion: The last day of the period is not counted if it is a Saturday, Sunday, legal holiday, or any part of a day in which the Clerk’s office is closed. SCR-Civil 6 (a)(1)(C).

Deadline for Replies to Oppositions or Responses:

Under SCR 12-I (g),

Within 7 calendar days after service of the opposing statement, the moving party may file and serve a statement of points and authorities in reply to the following types of motions only:

(1) motions for summary judgment; (2) motions to dismiss for failure to state a claim; (3) motions to strike expert testimony; and (4) motions for judgment on the pleadings.

Surreplies:

Not referenced in the Superior Court Rules.

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MARYLAND COURTS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Deadline for Opposition or Response to a Motion:

14 days. Local Rule 105 (2) (a) states “[u]nless otherwise ordered by the Court, all memoranda in opposition to a motion shall be filed within 14 days of the service of the motion.”

Deadline for Replies to Oppositions or Responses:

14 days. Under Local Rule 105 (2) (a) “any reply memoranda [shall be filed] within 14 days after service of the opposition memoranda.”

Surreplies:

Prohibited unless otherwise ordered by the Court. Local Rule 105 (2)(a).

MARYLAND STATE COURTS GENERALLY

Begin counting the day after the time period starts. Rule 1-203 (a).

Intermediate-day exclusion: if the period of time allowed is 7 days or less, intermediate weekend days and holidays are not counted. Rule 1-203 (a). Conversely, if the period of time is more than 7 days, intermediate weekend days and holidays are counted. Id.

Last-day exclusion: if the due date lands on a weekend day, court holiday, or day on which the clerk’s office is closed for a part of the day, the due date becomes the next day that the courthouse is open. Rule 1-203(a)(1) and (2).

CIRCUIT COURTS

Deadline for Opposition or Response to a Motion:

18 days (if served by mail); 15 days (if served by efiling ³). Generally, under Maryland Rule 2-311 (b), “…a party against whom a motion is directed shall file any response within 15 days after being served with the motion, or within the time allowed for a party’s original pleading pursuant to Rule 2-321 (a)(Time for filing answer.), whichever is later.” Further, under Maryland Rule 1-203 (c), “[w]henever a party has the right or is required to do some act or take some proceeding within a prescribed period after service upon the party of a notice or other paper and service is made by mail, 3 days shall be added to the prescribed period.”

Replies to Oppositions or Responses and Surreplies:

Not addressed by the Maryland Rules.

DISTRICT COURTS

Deadline for Opposition or Response to a Motion:

13 days (if served by mail; 10 days (if served by efiling). Generally, under Maryland Rule 3-311 (b), “…a party against whom a motion is directed shall file any response within 10 days after being served with the motion or within the time allowed for that party to file a notice of intention to defend pursuant to Maryland Rule 3-307 (b) (Notice of intention to defend), whichever is later.” Again, under Maryland Rule 1-203 (c), “[w]henever a party has the right or is required to do some act or take some proceeding within a prescribed period after service upon the party of a notice or other paper and service is made by mail, 3 days shall be added to the prescribed period.”

Replies to Oppositions or Responses and Surreplies:

Not addressed by the Maryland Rules.

* * *

NORTHERN VIRGINIA COURTS

UNITED STATES DISTRICT COURT FOR EASTERN DISTRICT OF VIRGINIA

Deadline for Opposition or Response to a Motion:

Within 14 days after service. Local Civil Rule 7 (F)(1).

Deadline for Replies to Oppositions or Responses:

Within 6 days after service of the opposition brief. Id.

Further, “[t]he fourteen (14) and six (6) calendar day periods for response and reply briefs shall apply without regard to, and are not expanded by, the mode of service used for those briefs, notwithstanding the provisions of Fed. R. Civ. P. 6(d).” (Id.)

Surreplies:

Prohibited without prior approval. Id.

CIRCUIT COURTS

Deadlines for Motions and Oppositions/Responses thereto:

Variable. Under Supreme Court Rule 4:15 (c), counsel may elect or the Court may require the filing of supporting or opposing briefs. Any such briefs should be filed with the Court and served on all counsel of record sufficiently before the hearing to allow consideration of the issues involved. Absent leave of Court, if a brief in support of a motion is 5 or fewer pages, the required notice and the brief shall be filed and served at least 14 days before the hearing and any brief in opposition to the motion shall be filed and served at least 7 days before the hearing⁴. If a brief is more than 5 pages(or the related hearing will last more than 30 minutes), an alternative hearing date, notice requirement, and briefing schedule may be determined by the court or its designee.⁵

Under Supreme Court Rule 1:7, 3 days shall be added to the prescribed time when the paper is served by mail, or 1 day shall be added to the prescribed time when the paper is served by facsimile, electronic mail or commercial delivery service.

Begin counting the day after the time period starts. Virginia Code § 1-210 (A).

Intermediate-day exclusion: none found.

Last-day exclusion: if the due date lands on a weekend day or court holiday, the due date becomes the next day the courthouse is open. Virginia Code § 1-210 (B).

Note: Virginia Circuit Courts will rarely grant contested motions without a hearing.

Surreplies:

Not addressed by the Rules of the Supreme Court of Virginia or the Virginia Code. Undoubtedly prohibited in Fairfax County Circuit Court (see below).

Fairfax County Circuit Court:

The Circuit Court of Fairfax County keys its deadlines to a “Friday Motions Day.” Movants must file a “Friday Motions Day – Praecipe/Notice” with their motion. This form is typically printed on yellow paper so that the clerks can easily recognize and docket it appropriately. Likewise, opponents must file a “Friday Motions Day – Response/Opposition to Motion” form with their response or opposition. This form is typically printed on green paper for the above reasons. Most contested motions will be considered “2-week Motions.” That is, the moveant must give two-weeks notice to his or her opponent, who, in turn, will have one week to file a response or opposition. Regarding briefs in opposition in Fairfax County Circuit Court, the back of the Movant’s Praecipe/Notice states:

Memoranda in opposition to any such pleadings, consisting of five (5) pages or less, accompanied by the Court’s green Response to Motion form…must be received by the Clerk of the Court and opposition counsel of record, no later than 4:00 p.m. on the Friday preceding the date of the hearing or the Court may treat the matter as uncontested” (emphasis in original).

As a result, prudent Fairfax County practitioners file briefs in opposition to two-week motions. If a hearing on any motion must take longer than thirty (30) minutes, the moving and responding parties, or their counsel, should appear before the Calendar Control Judge to request a hearing for a day other than a Friday. 1-week motions, which are generally uncontested, do not require a brief in opposition. Lastly, according to a handy flow chart on the Court’s website (see below), the Fairfax County Circuit Court prohibits replies to briefs in opposition.

PDF versions of these forms, additional procedures, and the flow chart referenced above can be found here.

Miscellaneous Circuit Courts:

The Circuit Courts of the City of Alexandria, Arlington County, Loudoun County, and Prince William County do not use these forms. Best practice: Contact the civil clerk’s office of the Circuit Court in which your case is pending to review its motions practice procedures.

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¹ This article is no substitute for your review of the applicable rules that apply to your cases.

² The cited Rule spells out the number of days. Here, as elsewhere, numerical forms are used for ease of reference.

³ Currently, courts in the following Maryland counties are “live on MDEC” (Maryland Electronic Courts): Allegany, Anne Arundel, Calvert, Caroline, Carroll, Cecil, Charles, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Queen Anne, Somerset, St. Mary’s, Talbot, Washington, Wicomico, and Worcester. See.

⁴ Two important caveats here for Circuit Courts other than Fairfax County’s: First, the failure to file a brief in opposition will rarely be fatal as opponents sometimes argue their positions at hearings without having briefed them. Second, some Judges will review briefs in opposition filed after the stated deadline.

⁵ Absent leave of court, the length of a brief shall not exceed 20 pages, double spaced. Further, in Fairfax County Circuit Court, briefs cannot exceed 5 pages, double spaced, in twelve-point type, without permission of the Calendar Control Judge.