(a) For opposed motions filed through the ECF system, the 3-day extension does not apply; and

(b) For pleadings other than opposed motions (e.g., answer/reply to counterclaim, etc.) that are served through ECF, the 3-day extension does apply.

The rules of civil procedure that must be considered when determining whether the 3-day Mailbox Rule applies include:

NDTX LR 7.1e – “Time for Response and Brief. A response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.”

FRCP 6(d) – “Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).”

FRCP 5(b)(2)(E) – “… sending it by electronic means if the person consented in writing – in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served …”

The key distinction in the N.D. Texas is that the deadline for response set forth in LR 7.1e is based upon “the date the motion is filed” and not calculated from the date of service. Accordingly, for an “opposed motion” filed in the N.D. Texas, the response and brief must filed within 21 days of filing and no 3-day extension should be added.

Notably, however, LR 7.1e only refers to an “opposed motion” and does not refer to other pleadings requiring a response, such as an answer/reply to counterclaim. Since no other Local Rules appear to address this issue, the 3-day Mailbox Rule of FRCP 6(d) should apply.

Practice Tip – If there is ever any doubt regarding whether the 3-day extension should apply, the best practice is to ignore the Mailbox Rule and to assume that the extra 3 days should not be applied when calculating the deadline for response.

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