Chapter 6 Time

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 6 Time Rule 6¹

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statue, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a State or Federal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor such holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not a holiday.

Note:

This Rule 6(a) replaces and considerably clarifies Code § 15-1-20; particularly as to computing time when there are consecutive holidays.

(b) Enlargement. When by these rules or by notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the time may be extended by written agreement of counsel for an additional period not exceeding the original time provided in these rules, or the court for cause shown may at any time in its discretion (1) with or without written motion or notice order the period enlarged if request therefor is made before the expiration of the period as originally prescribed or extended or (2) upon motion made after the expiration of the specified period, for good cause shown, permit the act to be done. The time for taking any action under rules 50(b), 52(b), 59, and 60(b) may not be extended except to the extent and under the conditions stated in them. The time for filing notice of intent to appeal is jurisdictional and may not be extended by consent or order.

Note:

This Rule 6(b) is the same as the Federal Rule, which is in turn a more concise statement of Code §§ 15-13-90 and 15-27-120 and Circuit Rule 62, except that the Rule continues the present State practice of allowing one limited extension of time by agreement of counsel.

Note to 1986 Amendment:

This amendment authorizes the court to permit an act to be done after the expiration of time upon a showing of good cause. This is the standard applied by courts in practice and is found in Rule 55(c) for relief from entry of default. The change distinguishes the test under Rule 6(b) which is applicable when filings are untimely, from that used when a party has obtained a judgment. Post-judgment relief under Rule 60(b) remains governed by the stricter standard of excusable neglect which has a precise meaning under state precedents. See also Rule 55(c).

(c) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it.

Note:

This Rule 6(c) was deleted from the Federal Rule in 1966, but was retained here as a much-needed clarification of State practice. The confusion as to the powers of the court with the modern advent of many "special terms" is eliminated. Time limits on such matters are now stated in the applicable rule; i.e., Rule 59 as to time for motions for new trial.

Note:

This Rule 6(d) is the same as the Federal Rule, except that the Rule has enlarged notice time from 5 to 10 days. The last sentence is added to preserve Circuit Rule 62.

(d) For Motions—Affidavits. A written motion other than one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than ten days before the time specified for the hearing, unless a different period is fixed by these rules or by an order of the court. Such an order may for cause shown be made on ex parte application. When a motion is to be supported by affidavit, the affidavit shall be served with the motion and except as otherwise provided in Rule 59(c), additional or opposing affidavits may be served not later than two days before the hearing, unless the court permits them to be served at some other time. The moving party may serve reply affidavits at any time before the hearing commences. In all cases where a motion shall be granted on payment of costs or on the performance of any condition, or where an order shall require payment or performance, the party whose duty it shall be to comply therewith shall have 20 days for that purpose, unless otherwise directed in the order.

Note:

This Rule 6(e) is the same as the Federal Rule except that the additional time to take an act after service is by mail is increased from 3 to 5 days. This replaces the very unclear meaning of Code § 15-9-950.

(e) Additional Time After Service by Mail or Upon Statutory Agent. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or upon a person designated by statute to accept service, five days shall be added to the prescribed period.

A. Computation of Time

Rule 6(a) contains the method of calculating time periods established in rules, statutes, and orders of the court.² The first day counted is the day after the act or event occurred, which commences the time period.³ If the last day of the period is a Saturday, Sunday, or State or Federal holiday, the time period is extended until the next business day that is not a Saturday, Sunday, or holiday.⁴ The federal courts have held that SCRCP 6(a) extends a state statute of limitations that would otherwise expire on a Saturday, Sunday, or holiday to the next day that is not a Saturday, Sunday, or holiday.⁵ Statutes of limitations are procedural in South Carolina,⁶ so it is reasonable that rules of procedure are used to interpret them. Time limits set by federal statute may not be so easily extended.⁷

The state legal holidays are set by statute and may include the preceding Friday or the following Monday, if the set date falls on the weekend.⁸ State and federal law establish New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed by the President or Congress as holidays.⁹ In addition to the federal holidays, the state also designates May 10^th Confederate Memorial Day, the day after Thanksgiving, and December 24^th and 26^th as legal holidays.¹⁰

A special rule applies when the time period is less than seven days. Intervening Saturdays, Sundays, and holidays are not counted, so that the party has at least one calendar week to respond even if the specified time is six days or less. The Federal Rule was the same; however, effective December 1, 2009, Fed. R. Civ. P. 6 will no longer distinguish between periods of less than ten days and longer periods. The new time periods in federal court generally will be a minimum of seven days or multiples of seven days.¹¹

B. Extension of Time

Rule 6(b) describes three ways the time periods set by the rules may be extended and bars the court or counsel from extending the time for four specified post-trial or post-judgment motions. First, counsel may consent in writing to extend the time for a period not to exceed that originally set by the rule.¹² For example, the time to answer a complaint may be extended by consent for an additional thirty days.

Second, the court may extend the time if the request is made before the time has expired. A formal written motion is not required, but cause for the extension must be shown.

Third, the court, upon motion made after the time has expired, may permit the act to be done. The standard is "good cause shown," which differs from the comparable federal rule's standard of "excusable neglect." The "good cause" standard was adopted by amendment in 1986 because it was less strict than "excusable neglect," which had a precise and narrow meaning in the post-judgment relief cases under Rule 60(b).¹³ A successful motion remedies a prior default. Thus, the mere filing of an untimely pleading does not cure the default.¹⁴

The decision under Rule 6(b) is within the discretion of the trial court...