Imagine this scenario if you will: opposing counsel has blown their thirty (30) day deadline, pursuant to Georgia’s Uniform Superior Court Rule 6.2, to serve a response to your dispositive motion. Cheers to you! Is it now time to notify the court of opposing counsel’s inexplicable and egregious failure to timely respond to your dispositive motion? Unfortunately, thanks to O.C.G.A. § 9-11-6(e), the answer is no.
O.C.G.A. § 9-11-6(e) states, in pertinent part,
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, other than process, upon him or her, and the notice or paper is served upon the party by mail or e-mail, three days shall be added to the prescribed period.
But what of Georgia’s Uniform State Court Rule 6.2? Rule 6.2 states, verbatim:
Unless otherwise ordered by the judge or as provided by law, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion. Such response shall include or be accompanied by citations of supporting authorities and, where allegations of unstipulated facts are relied upon, supporting affidavits or citations to evidentiary materials of record.
Rule 6.2 appears to directly contravene O.C.G.A. § 9-11-6(e).
Which rule applies? The answer can be found in the Preamble to Georgia’s Uniform Superior Court Rules, which states, in pertinent part:
Pursuant to the inherent powers of the Court and Article VI, Section IX, Paragraph I of the Georgia Constitution of 1983, and in order to provide for the speedy, efficient and inexpensive resolution of disputes and prosecutions, these rules are promulgated. It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.
O.C.G.A. § 9-11-6(e), thus, supersedes Rule 6.2. Accord, Wyse v. Potamkin Chrysler-Plymouth, Inc., 189 Ga. App. 64, 65 (1988).
But why? According to the Georgia Court of Appeals, this “[c]ode section “is designed to maximize the probability that a party will have the full time period within which to take an action after he receives the notice.” Pyramid Const. Co. v. Star Mfg. Co., 195 Ga. App. 644, 644 (1990) (quoting Akins v. Magbee Bros. Lumber, etc., Co., 152 Ga. App. 904(1) (1980)). One can presume the historical rationale for this rule stems from the United State Postal Service’s (“USPS”) rich history of failing to timely provide mail to its recipients. According to its website, USPS traces its roots to 1775 during the Second Continental Congress, when Benjamin Franklin was appointed the first postmaster general.1 Between 1860 and 1861, USPS delivered mail by horseback.2 Not much has been offered in the way of innovation since that time.
Is there a similar rule in federal court? Kind of. Rule 6(d) of the Federal Rules of Civil Procedure states, “[w]hen a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a). According to the Advisory Committee Notes regarding the 2016 Amendment to Rule 6(d):
Rule 6(d) [was] amended to remove service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow 3 added days to act after being served… Diminution of the concerns that prompted the decision to allow the 3 added days for electronic
transmission is not the only reason for discarding this indulgence. Many rules have been changed to ease the task of computing time by adopting 7-, 14-, 21-, and 28-day periods that allow “day-of-the-week” counting. Adding 3 days at the end complicated the counting, and increased the occasions for further complication by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday.”
Is there an exception to this rule? Possibly. The plain language of O.C.G.A. § 9-11-6(e) does not appear to contemplate an additional three (3) days of response time when a responding party receives service through a court’s electronic filing system, which is a proper mode of service pursuant to Rule 36.16(E) of Georgia’s Uniform Superior Court Rules:
Upon filing, an electronically filed document is deemed served on all parties and counsel who have waived any other form of service by registering with the electronic filing system to receive electronic service in the case and who receive notice via the system of the document’s filing.
At least one Georgia court has weighed in on the issue. See Clark v. City of Atlanta, No. 18EV001521H, 2019 WL 6973758, at *1 (Ga. State Ct. Mar. 07, 2019). In Clark, the defendant filed a motion to strike a plaintiff’s response to the defendant’s summary judgment motion. In their motion to strike, the defendant contended that the plaintiff’s response to their summary judgment motion—filed thirty-one (31) days after service of the summary judgment motion—was untimely under Georgia Uniform Superior Court Rule 6.2, and further contended that service of its summary judgment motion was made upon the plaintiff via the court’s electronic system, thus rendering the additional three (3) day allowance to respond under O.C.G.A. § 9-11-6(e) nugatory. In refusing the strike the plaintiff’s response, the Clark court found that service was made on the plaintiff’s counsel via United States mail according to the defendant’s certificate of service appended to its motion for summary judgment. The Clark court additionally declined to accept the defendant’s assertion, in a subsequent filing, that its motion was served via the court’s electronic filing service, ruling that it was inconsistent with the information contained in the defendant’s certificate of service accompanying its motion for summary judgment.
So what should you do as a prudent attorney? Assuming opposing counsel has not responded to your motion after thirty (30) days, you should wait thirty-three (33) days to notify the court of opposing counsel’s failure to respond. Also, you may want to consider including, in your certificate of service, the following: “Today I served a copy of the foregoing document upon counsel of record via Statutory Electronic Service and through the Court’s electronic filing system, which will automatically serve the following…”.
By: Jack Summer