I know I have 21 days to file an amended complaint after a motion to dismiss but I see a few fuzzy and possibly contradictory federal rules on if I have 21 or 14 days to file a Response to Motion to Dismiss on an Amended Complaint. Also the way I read all of these is days including the date of file not AFTER the date of file (so no "additional" day, I think the term used is "within __ days" not "after". Just clarifying, but the 21 or 14 day time period is something I need assistance on again it is Federal thanks.
Employment / Labor Attorney
To clarify a few points: In the Southern District of Florida (Fed. Ct.), the local rules provide:
Each party opposing a motion shall serve an opposing memorandum of law no later than fourteen (14) days after service of the motion. Failure to do so may be deemed sufficient cause for granting the motion by default. The movant may, within seven (7) days after service of an opposing memorandum of law, serve a reply memorandum in support of the motion, which reply memorandum shall be strictly limited to rebuttal of matters raised in the memorandum in opposition without reargument of matters covered in the movant’s initial memorandum of law.
The same is true for the Northern District. (http://www.flnd.uscourts.gov/forms/Court%20Rules/local_rules.pdf)
Thus, you would have 14 days to file an opposition to a motion to dismiss. As far as counting days is concerned, the first day (day #1) is the day after the motion to dismiss was filed. Thus, if the motion was filed on October 17, the first day for time calculation purposes would be October 18.
The Northern District's local rules provide a good explanation of how to calculate the date:
(A) If the motion or memorandum was served by mail or filed via CM/ECF, count fourteen (14) days (seven (7) days for a reply) beginning the day after the motion, response, or memorandum was certified as having been mailed or filed via CM/ECF. If the last day falls on a Saturday, Sunday, or legal holiday, the period continues to run until the next business day. Beginning on the next calendar day, including Saturday, Sunday, or a legal holiday, count three (3) days. The third day is the due date for the opposing memorandum or reply. If the third day falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.
Note the +3 days for the "mailing rule".
Also, in every federal court I have practiced in (unfortunately, I have never practiced in Florida), any extension agreed to by the parties needed to be filed with the court. We would always file a stipulated motion for an extension of time that both sides had agreed to. This differs from the practice in a lot of state courts where you simply need to confirm the extension in writing.
Hope it helps!
My thoughts and comments are for general information only. The do not constitute legal advice and they should not relied upon as such. My thoughts and comments do not form an attorney-client relationship--I am not your attorney. Please seek the advice of a licensed attorney before taking any acts based upon my thoughts and comments or the comments of others.
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Family Law Attorney
Those timing rules can be tricky, but the easiest way is not to take any chances when you aren't sure of the deadline. You may be able to check Pacer which may tell you the deadline as calculated by the court (a shortcut). You don't say which district court in Florida you are in (there are 3), but here's the link to the public access in the Southern District of Florida http://www.flsd.uscourts.gov/?page_id=3346
I assume you are not represented in this matter, and while you may know this already, you should get legal representation if you can. There are an infinite ways one can mess up a case and if that happens, the "I'm not a lawyer" excuse the only goes so far if at all.
This posting is a contribution to a general discussion of a topic based on a hypothetical situation similar to the situation presented. This is not legal advice, and should not be relied upon as such. Legal advice is only rendered in a confidential manner within an attorney-client relationship created by an agreement between the attorney and the client described in the agreement. Furthermore legal advice is rendered only after a full interview with the client and investigation of the relevant facts of the specific case and a review of applicable laws.
Your question is not clear. Do you mean you think you have 21 days to file an amended complaint after the judge grants the motion to dismiss? You need to check Federal Rule of Civil Procedure 12 and the local rules. I am not aware of any time differences between responding to a motion to dismiss whether it is made on an original or amended complaint. How much time do you want? You can always just call the lawyer for the other side and ask for 21 days to respond, then confirm it in writing.