As I’ve written before, the days are numbered for the additional “3 days” that are afforded attorneys in responding to documents served electronically. Except in the Northern District of Georgia, where electronic filing via CM/ECF is “snail mail”.
If the recipient is a registered participant of ECF, the “Notice of Electronic Filing” shall be the equivalent of service of the pleading or other paper by first class mail, postage prepaid.
Par. B(1)(a), Appendix H to the Local Rules, NDGa (Mar. 1, 2016) (emphasis added). Apparently keeping a wary eye on technology, they’ll just treat it like snail mail. The same is true in Bankruptcy Court in the Northern District of Iowa:
Electronic service of a Notice of Electronic Filing on a recipient that is a Filing User of the Electronic Case Filing System is the equivalent of service of the paper by first class mail, postage prepaid.
Local Rule 9036-1(a)(1) (Bankr. N.D. Iowa) (emphasis added); In re Blanchard, 2008 WL 1782367, at *2 (Bankr. N.D. Iowa Apr. 14, 2008) (citing id.).
Once upon a time, it also was true in the Western District of Oklahoma. See Cactus Petroleum Corp. v. Cont’l Res., Inc., No. CIV-13-0798-HE, 2013 WL 5656107, at *3 n.3 (W.D. Okla. Oct. 16, 2013) (“If the recipient is a registered participant of the ECF System, the ECF System’s transmission of the NEF shall be the equivalent of service of the pleading or other paper by mail.”) (citing Electronic Filing Policies & Procedures Manual, II(B)(1)(c)). But they have learned to recognize NEFs for what they are, deleting that provision no later than October 4, 2013. [Before Judge Heaton issued his opinion in Cactus Petroleum. Oops.]
But the provision lives on in Bankruptcy Court in Eastern Virginia:
If the recipient of notice or service is a registered participant, service of the “Notice of Electronic Filing” shall be the equivalent of service of the filing by first class mail, postage prepaid.
Par. B(4), Exh. to Standing Order #99-1 (Bankr. E.D. Va. Dec. 1, 2006) (emphasis added); In re Denke, 524 B.R. 644, 651 (Bankr. E.D. Va. 2015) (citing id.). And in western Virginia, both in District Court and Bankruptcy Court:
If the recipient of notice or service is a registered participant in the Court’s CM/ECF system, service by electronic means of the “Notice of Electronic Filing” with a hyperlink to the document shall be the equivalent of service of the pleadings or other paper by first class mail, postage prepaid.
Local Rule 7(g)(3) (W.D. Va. Aug. 2013) (emphasis added); Elliott v. Comm’r of Soc. Sec., 2011 WL 3664414, at n.1 (W.D. Va. Aug. 19, 2011) (“Further, service by electronic means through the court’s CM/ECF system is the equivalent of service by mail.”) (citing id.).
Service by electronic means is complete on transmission unless a party learns that attempted service did not reach the person to be served, and electronic service is treated the same as service by mail for the purpose of giving parties an additional three (3) days to respond.
Local Rule 2002-1(D)(3) (Bankr. W.D. Va. Oct. 1, 2014) (emphasis added).
Not a Trivial Pursuit
Why does any of this matter?
The Bankruptcy Court for the Western District of Virginia gets right down to why this matters: “for the purpose of giving parties an additional three (3) days to respond.” The additional 3 days for responses to documents filed via CM/ECF will live on in these courts, explicitly for bankruptcies in western Virginia and implicitly in these other courts.
Except Oklahoma. So sorry.
This is because the NEF is the “equivalent” of first-class mail, and therefore is being served pursuant to Rule 5(b)(2)(C), one of the favored classes for which the additional 3 days is preserved in the new Rule 6(d):
When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).
Rule 6(d) (eff. Dec. 1, 2016) (emphasis added). Likewise, the new Bankruptcy Rule 9006(f) leaves out electronic service but preserves the additional 3 days for snail mail:
When there is a right or requirement to act or undertake some proceedings within a prescribed period after being served and that service is by mail or under Rule 5(b)(2)(D) (leaving with the clerk) or (F) (other means consented to) F.R.Civ.P., three days are added after the prescribed period would otherwise expire under Rule 9006(a).
(emphasis added). So treating NEFs as snail mail gives attorneys in these courts an extra 3 days to respond. Will they use that extra time? Time will tell.
As for conflicts with any other rules, there do not appear to be any. See Rule 83(a) (all local rules be “consistent with—but not duplicate—federal statutes and rules…”). The Advisory Committee Notes foreclose the end-run of using subdivision “(F) (other means consented to)”, but that is not what these courts are doing:
Eliminating Rule 5(b) subparagraph (2)(E) from the modes of service that allow 3 added days means that the 3 added days cannot be retained by consenting to service by electronic means. Consent to electronic service in registering for electronic case filing, for example, does not count as consent to service “by any other means” of delivery under subparagraph (F).
And the courts have the authority to extend the time for a party to act under every rule except for Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b). See Rule 6(b)(2). None of these rules set deadlines based on service, so Rule 6(d) does not apply: “When a party may or must act within a specified time after being served…” (emphasis added). This appears to be nothing more than a standing order giving parties an “extension” of the additional 3 days, fully within the authority of these courts.
One word of caution: the additional 3 days would not apply to responding to discovery served electronically. For example, the Northern District of Georgia requires that parties serve certificates of service of discovery materials via CM/ECF, which generates NEFs, but the deadline to respond is triggered by service of the materials themselves. If those materials are served electronically, no additional days apply under the new rule.
The additional 3 days live on in certain courts in Georgia, Iowa, and Virginia. For now.