Editor's Note: This article was published in Bar News as a two-part feature due to it's length. It appears hear in it's entirety.

ON JAN. 1, 2003, the most recent amendments to the Local Rules of the U.S. District Court for the District of New Hampshire took effect.

The court adopted these amendments that were developed by the Federal Court Advisory Committee after a public comment period on the proposed changes. A complete set of the U.S. District Court's Local Rules, as well as a summary of the rule changes, may be downloaded from the Rules page on the court's Web site, www.nhd.uscourts.gov.

In at least one respect, two new Local Rules work a major revision to the long-standing local practice for calculating due dates. Certain other amendments to the Local Rules were necessitated by the adoption of these two new rules. Other rule amendments include changes to the long-standing practice of pre-service review of certain pro se complaints by the U.S. magistrate judge, dissemination of the juror questionnaire, and the corporate disclosure statements. For the most part, the remainder of the amendments are minor or technical in nature.

New Rules on Computation of Time: Local Rule 6.1 and Local Cr. Rule 45.1

The 2003 amendments to the Local Rules added two new rules: Local Civil Rule 6.1 and Local Criminal Rule 45.1. These rules, along with other amendments to various deadline-setting Local Rules, bring the local practice for calculating due dates into conformity with the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure, respectively. Because these changes significantly alter the manner in which the court and practitioners calculate deadlines, it is essential that practitioners understand the changes and incorporate them into practice.

Traditionally, in this district, deadlines were calculated from the date a document was filed in court. Thus, if an opposition to a motion to dismiss was due in 10 days, it was due 10 days after the motion to dismiss was filed in court. In accordance with Fed.R.Civ.P. 6(a), the court set the response deadline as 10 business days after filing and then also gave practitioners an additional three calendar days for mailing as provided by Fed.R.Civ.P. 6(e). This generous practice was not consistent with the national practice under the Federal Rules, which only provides the three calendar days for service by mail when the deadline is calculated from service, rather than filing. See Fed.R.Civ.P. 6(e). As a result, so as not to be impermissibly inconsistent with the national rules, the court has added Local Rule 6.1 (civil) and Local Cr. Rule 45.1 (criminal) to clarify how to compute deadlines.

Under new Local Rule 6.1, where a time period is calculated from the filing of a document with the court, Fed.R.Civ.P. 6(a) applies. This means that, if the time period is less than 11 days, the time is computed by business days, not calendar days. The additional three calendar days for service by mail under Fed.R.Civ.P. 6(e) do not apply and are not added into the time period. The same is true for those criminal practice time periods calculated from filing. See Local Cr. Rule 45.1, which refers to Fed.R.Crim.P. 45(a) for calculation of time period from filing.

Conversely, under new Local Rule 6.1, where a time period is calculated from the date a document is served, both Fed.R.Civ.P. 6(a)'s business day rule and Fed.R.Civ.P. 6(e)'s three days for mailing rule can apply. Thus, if an opposition to a motion is due 10 days after service, under new Local Rule 6.1, the opposition would be due on the date falling 10 business days plus three calendar days after the date the motion was served, assuming that the motion was served by means other than in-hand service. If it was served by hand, then only the 10 business days under Fed.R.Civ.P. 6(a) would be available. See Fed.R.Civ.P. 6(e). The same is true for criminal practice time periods calculated from service. See Local Cr. Rule 45.1, which refers to Fed.R.Crim.P. 45(a) and (c) for calculation of time period from service.

Therefore, attorneys need to engage in a several-step process to calculate the applicable due date for a response, motion or reply. First, counsel must determine whether the Local Rules provide for time periods to be calculated from filing or service. Second, if the time period is to be calculated from service, counsel needs to determine the method of service under Fed.R.Civ.P. 5(b) because that method will establish when service is deemed complete and whether the three-calendar-day period should be added to the time period under Fed.R.Civ.P. 6(e). For example, when a document is served in hand, the three-day additional period for service by mail is not available under Fed.R.Civ.P. 6(e), but if the document is served electronically with the consent of the recipient, the additional period is available. Fed.R.Civ.P. 6(e).

Once the practitioner has determined these two factors, i.e., whether to calculate from filing or service, and the method of service, then he or she can appropriately calculate the time period in which he or she must act. The court has posted a very helpful information sheet, describing the manner in which to calculate time, which can be accessed through the Filing subsection of the Case Processing button on the navigation bar on its Web site, www.nhd.uscourts.gov.

In addition, to provide clarity on the first factor, the court has amended a number of the local rules to demonstrate when time should be calculated from service. Pursuant to these amendments, the following deadlines are calculated from service, not from filing:

• Responses to motions, Local Rule 7.1(b) or Local Criminal Rule 12.1;
• Reply or Surreply, Local Rule 7.1(e)(1), (2), (3);
• Motions to strike, Local Rule 7.2(c);
• Responses to habeas corpus petitions or dispositive motions to such petitions, Local Rule 7.4;
• Objections to exhibits, motions in limine, proposed jury instructions or proposed findings of fact and rulings of law, Local Rule 16.2(d); and
• Objections to bill of costs, Local Rule 54.1(c), or to the clerk's taxation of costs, Local Rule 54.1(f).

If service of the originating document is by mail or by electronic means with consent, these deadlines will include the three calendar days for service as well as the business day calculation if the provided time period is less than 11 days. See Local Rule 6.1, Local Cr. Rule 45.1.

Thus, with the addition of the new Local Rules, and the concomitant change in the clerk's calculation of deadlines, counsel must learn to check the Local Rules to determine whether filing or service starts the clock and, in the latter case, determine the date and the method of service under Fed.R.Civ.P. 5(b), to conduct a proper time calculation.

Local Rule 4.3(d)(1)(A): Magistrate Review of Pro Se Complaints

Another significant change for a certain sector of local practice arises with the amendment to Local Rule 4.3(d)(1)(A). Under that Local Rule, the U.S. magistrate judge reviews pro se complaints to determine whether the court has subject matter jurisdiction over cases in which the plaintiff has paid the filing fee. Previously, the established practice in this district was that summonses did not issue and, therefore, the complaints were not served prior to the completion of the magistrate's review.

In an amendment intended to ensure that the district's practice conformed to the Federal Rules of Civil Procedure, the court will no longer wait for the completion of the magistrate's review before issuing summonses. Local Rule 4.3(d)(1)(A). Instead, except in the case of an incarcerated pro se plaintiff or a person filing in forma pauperis, summonses will immediately issue. See Local Rule 4.3(d)(2)(C) and Local Rule 4.3(d)(1)(B)(iii). Thus, in many fee-paid pro se cases, service may occur while the complaint is still pending before the magistrate in his initial review. This may result in the defendant being required to answer or move to dismiss prior to the completion of the contemplated subject matter jurisdiction determination.

Local Rule 4.4, Payment of Fees

Under Local Rule 4.4, the Clerk's Office has always docketed complaints, even when the complaint was not accompanied by the required filing fee. The court's rule gave plaintiffs and their counsel 30 days in which to submit the filing fee or risk dismissal of the complaint without prejudice. This has occasionally saved plaintiffs who filed complaints on the last day before the applicable statute of limitations ran.

Under newly amended Local Rule 4.4, plaintiffs will no longer have that grace period. The court will no longer docket complaints that are not accompanied by the requisite filing fee or for which the court has granted a motion to proceed in forma pauperis. Thus, if a practitioner or plaintiff is near the end of the statute of limitation period, he or she needs to ensure that a timely-filed complaint is accompanied by the filing fee or an ifp motion. Otherwise, a practitioner risks having the court reject the complaint and the statute of limitations expiring before the filing fee is paid and the complaint docketed.

Local Rule 7.5 Disclosure Statement; Local Cr. Rule 12.4 Disclosure Statement

The court has amended the disclosure statement rules both for civil and criminal practice in several ways. First, the court has deleted most of the substantive requirements for disclosure from its rules because the Local Rules' provisions were redundant of the Federal Rules' provisions. See Fed.R.Civ.P. 7.1; Fed.R.Crim.P. 12.4. However, the court retained the additional requirement that the disclosure statement identify any publicly held corporation with which a merger agreement exists. Local Rule 7.5(b); Local Cr. Rule 12.4(a)(2); (b)(2).

Second, the court has added a provision regarding disclosures where one of the parties is a partnership. Local Rule 7.5(c); Local Cr. Rule 12.4(a)(3); (b)(3). If a non-governmental corporate entity or organizational victim holds an interest in that partnership, a disclosure about that entity consistent with these rules must be made. If no such non-governmental corporate entity holds an interest in the partnership, the partnership must file a statement to that effect. Id.

Third, the Local Criminal Rules regarding disclosure statements, formerly Local Criminal Rule 57.2 and Rule 57.3, were renumbered and combined as Local Cr. Rule 12.4 to be consistent with the numbering of the national rule. In addition, the court has changed the date for the filing of those statements to the date of the initial appearance.

Local Rule 47.1, Juror Questionnaires

In the recent past, some questions have arisen about privacy interests and the extent to which juror questionnaires have been available under Local Rule 47.1. Prior to the recent amendment, the Rule provided for access by "attorneys and pro se parties." To clarify the limited nature of access to the questionnaire responses, the court has amended Local Rule 47.1. Under the amended Rule, the questionnaire responses are only available "to attorneys and their agents and to pro se parties actually involved in cases scheduled for trial." Moreover, the amendment specifically prohibits those persons provided access to the responses from disseminating the information contained within the responses.

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