§6.6 Analysis

• Jurisdiction: Washington

§6.6ANALYSIS

This section discusses the construction and application of CR 6 and its subparts. It will also provide meaningful examples, comments, and practice tips in the application of the rule.

(1) CR 6(a): Computation of time

In computing any period of time specified by court rule, court order, or statute, the day from which the designated period begins to run is not included. The first day of the period must be excluded whether or not the time involved is more or less than seven days. The last day of the period is included in the computation, unless the last day is a Saturday, Sunday, or legal holiday; in such event, the period runs until the next business day.

If the period is more than seven days, nonbusiness days (i.e., Saturdays, Sundays, and legal holidays) are included in the calculation, unless they fall on the last day of the period. If the period to be computed is less than seven days, Saturdays, Sundays, and legal holidays are excluded from the calculation.

A legal holiday has been defined as "[a] day upon which the usual operations of business are suspended and the courts closed, and, generally, no legal process is served." State v. Johnson, 21 Wn.App. 919, 921, 587 P.2d 189 (1978) (quoting BLACK'S LAW DICTIONARY (4th rev. ed. 1968)). Legal holidays are listed in RCW 1.16.050 and include NewYear's Day (January 1); the birthday of Martin Luther King, Jr. (third Monday in January); Presidents' Day (third Monday in February); Memorial Day (last Monday in May); Independence Day (July 4); Labor Day (first Monday in September); Veterans' Day (November 11); Thanksgiving Day (fourth Thursday in November) and the following Friday; and Christmas Day (December 25). Whenever a legal holiday falls on a Saturday, the preceding Friday is considered the legal holiday; if it falls on a Sunday, the following Monday is considered the legal holiday.

Example 1: CR 4(a)(2) and CR 12 require a defendant to serve a defense (by pleading or motion) within 20 days of service of the complaint. If service is accomplished on a Tuesday, that day is not counted according to CR 6(a); i.e., the first day for counting purposes is Wednesday, whether or not it is a legal holiday. Because the prescribed period is seven days or more, weekend days and holidays are counted. The 20th day falls on Monday, which is the expiration of the 20-day period. If the expiration day falls on a Saturday Sunday, or legal holiday, the period expires on Monday, or the day after if Monday is a legal holiday.

Example 2: CR 6(a) provides that a motion must be served no less than five days before it is noted for hearing (and CR 5(a) requires the filing of the motion). If the motion is personally served on Monday, that day is not counted, and Tuesday is the first day Saturday would be the fifth day, but CR 6(a) excludes intermediate weekend days or holidays in this example. Therefore, the earliest the motion could be noted for hearing is Monday, one week after service, unless that day is a legal holiday.

Caveat: CR 6(e) provides that you should not calculate intervening Saturdays, Sundays, or legal holidays when a prescribed time period is less than seven days. CR 5(b)(2), however, provides a special rule, inconsistent with CR 6(a), regarding service by mail. For purposes of CR 5(b)(2), intermediate Saturdays, Sundays, and legal holidays are counted for purposes of determining the third day upon which service by mail is effective, except if the third day falls on a weekend day or legal holiday, in which case service is completed the first day thereafter that is not a weekend day or legal holiday. "Fractional" days are not computed in determining the passage of time. In other words, whether the service or other action is accomplished in the morning or in the evening, one full day is counted. See Pederson v. Moser, 99 Wn.2d 456, 662 P.2d 866 (1983). In Pederson, a government official was served with a recall petition in the evening on December 14. The applicable statute provided that the ballot synopsis must be prepared not less than 20 days after service. The county prosecutor issued the synopsis early in the morning on January 3. The court held that the required 20 days had elapsed. Id. at 463.

The CR 6(a) method of excluding the day of the act, event, or default in the computation of time does not apply to the calculation of a period of months set forth in an administrative regulation. Olson v. Civil Serv. Comm'n, 43 Wn.App. 812, 719 P.2d 1343 (1986).

CR 6(a) applies to statutory limitation periods. Thus, when the expiration of a statutory limitation period falls on a Saturday, that Saturday is excluded, and a plaintiff may timely file on the following Monday. Stikes Woods Neighborhood Ass'n v. City of Lacey, 124 Wn.2d 459, 880 P.2d 25 (1994); see also Sievers v. City of Mountlake Terrace, 97 Wn.App. 181, 983 P.2d 1127 (1999).

CR 6(a) does not apply to the expiration of the 60-day waiting period following the service of a tort claim against a government agency under RCW 4.96.020. Troxell v. Rainier Pub. Sch. Dist. No. 307, 154 Wn.2d 345, 111 P.3d 1173 (2005).

Comment: The court in Stikes Woods, 124 Wn.2d 459, overruled a line of Court of Appeals cases beginning with Tarabochia v Town of Gig Harbor, 28 Wn.App. 119, 622 P.2d 1283 (1981). Tarabochia and its progeny held that CR 6(a) did not apply before the commencement of an action. Under the reasoning of Tarabochia, before a plaintiff filed the complaint, Saturday was included as the last day of a calculation period; once the complaint was filed, however, Saturday was excluded from the calculation. The Stikes Woods decision resolved this incongruity: it rejected the Tarabochia court's conclusion that civil rules have no effect before the commencement of an action. Stikes Woods, 124 Wn.2d at 466.

Caveat: The court in Stikes Woods recognized that "there are both procedural and substantive facets of statutes of limitations" and held that "[i]nsofar as CR 6(a) affects procedural aspects of statutes of limitations, it supersedes RCW 1.12.040." Id. at 465-66.

(2) CR 6(b): Enlargement of time

CR 6(b) authorizes the enlargement of a prescribed period at the discretion of the court when good cause is shown. See also RCW 4.32.250.

(a) Request before expiration of period

When a request is made before the expiration of the period originally prescribed or previously extended, the court may, with or without a formal motion or notice, order the period enlarged. There need not be any showing of excusable neglect. Requests for enlargement of time before the...