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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Time to Object

28 U.S.C. §636(b)(1), Fed. R. Civ. P. 72(b)(2) and D. Minn. L.R. 72.2(b) all allow a party 14 days after being served with a Report and Recommendation to file written objections to the R&R.  What many fail to realize is that most litigants will automatically have that deadline extended by three days by virtue of Fed. R. Civ. P. 5(b)(2)(E) and 6(d), even when the R&R has been served on the parties via the court’s ECF system.

While it appears that this issue has not yet generated much controversy within the District of Minnesota, other federal courts agree that the three-day extension applies when service of the R&R is accomplished via ECF.  E.g., Carranza v. Con-Way, Inc., 2010 WL 4775564, *1 (D. Ariz. 11/17/10); Toland v. Correctional Med. Servs., Inc., 2010 WL 4683922, *3 n.2 (E. D. Mich. 11/10/10) Hunter Fan Co. v. Minka Lighting, Inc., 2010 WL 2991252, *1 (W.D. Tenn. 07/27/10); Proa v. NRT Mid Atlantic, Inc., 633 F. Supp. 2d 209, 211-12 ((D. Md. 2009), aff’d, 398 F. Appx. 882 (4th Cir. 2010); Sembler v. Advanta Bank Corp., 2008 WL 2965661, *1 (E.D.N.Y. 08/01/08).  And if the 17th day from ECF service of the R&R falls on a weekend or legal holiday, Fed. R. Civ. P. 6(a)(1)(C) allows litigants even more time to file objections to the R&R.  See Klatch-Maynard v. Sugarloaf Township, 2011 WL 532168, *2 n.2 (M.D. Pa. 02/08/11) (addressing interplay of all of the above federal rules).

So remember, anytime an R&R is served via ECF, you and your opponents will have at least 17 days to serve and file your objections.

Josh Jacobson

The Law Office of Josh Jacobson, PA

Minneapolis

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