Imagine this scenario, if you will: Opposing counsel has blown their thirty (30) day deadline to respond to your motion to dismiss, pursuant to Rule 6.2 of the Uniform Superior Court of Georgia. Greetings to you! Is it time to notify the court of opposing counsel’s inexplicable and egregious failure to timely respond to your motion to dismiss? Unfortunately, thanks to OCGA § 9-11-6(e), the answer is no.
OCGA § 9-11-6(e) states, in relevant part,
Whenever a party is served with a notice or other paper, upon him or her, other than process, and the notice or paper is given to the party, he has the right or is required to do an act or perform some action within a prescribed period. By mail or e-mail, three days shall be added to the prescribed period.
But what about Georgia’s Uniform State Court Rule 6.2? Rule 6.2 states, verbatim:
Unless otherwise ordered by the judge or provided by law, each party opposing the motion must serve and file an answer, answering memorandum, affidavit, or other responsive material no later than 30 days after service of the motion. Such response shall include or be accompanied by citations to supporting authorities and, where reliance is placed on allegations of unsubstantiated facts, by citations to affidavits or evidentiary material of record.
Rule 6.2 appears to directly violate OCGA § 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 relevant part:
Pursuant to the inherent powers of the Court and Article VI, Article IX, Paragraph I of the Georgia Constitution of 1983, and to provide for the speedy, efficient and inexpensive resolution of disputes and proceedings, these Rules are promulgated. These rules are not intended to conflict with, or have the effect of, the Constitution or substantive law, either individually or in individual actions, and these rules shall be so construed and in case of conflict, the substantive law shall prevail.
OCGA § 9-11-6(e), thus, supersedes Rule 6.2. Accord, Vice Vs. 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 likelihood that a party will have a full period of time to file an action after receiving notice.” Pyramid Const. Co. v. Star Mfg. Co., 195 Ga. App. 644. One might assume that the historical rationale for this rule stems from the United State Postal Service’s (“USPS”) rich history of failing to timely deliver mail to its recipients. According to its website, the USPS traces its origins to the Second Continental Congress in 1775, when Benjamin Franklin was appointed the first Postmaster General. Between 1860 and 1861, the USPS delivered mail by horseback. since that time.
Is there a similar rule in federal courts? Kind of. Rule 6(d) of the Federal Rules of Civil Procedure states, “[w]hen a party may act within a specified time after service and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with clerk) or (F) (other) or should mean consent is given), 3 days are added after the period expires under rule 6(a). According to the Advisory Committee’s Note on the 2016 Amendments to Rule 6(d):
Rule 6(d) [was] Rule 5(b)(2)(E) is amended to remove service by electronic means from the modes of service allowing 3 additional days to operate after service is made… reducing concerns that prompted the decision to allow 3 additional days days for gave electronic
Transmission is not the only reason to give up this indulgence. Several rules have been changed to simplify the task of time calculation by adopting 7-, 14-, 21-, and 28-day periods that allow “day of the week” to be counted. Adding 3 days at the end complicated the calculation, and created occasions for further confusion by using provisions that apply when the last day is a Saturday, Sunday or legal holiday.”
Are there any exceptions to this rule? possibly. The plain language of OCGA § 9-11-6(e) does not appear to contemplate an additional three (3) day response time when the responding party receives service through the court’s electronic filing system, which is accordingly the proper mode of service. Rule 36.16(E) of the Rules of the Uniform Superior Court of Georgia for:
Upon filing, an electronically filed document is deemed to be served on all parties and counsel who register in the electronic filing system to receive electronic service on the case and who receive notice through the document filing system.
At least one Georgia court has addressed this issue. Clarke v. See 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 the plaintiff’s response to the defendant’s summary judgment motion. In his motion to strike, defendant argued that plaintiff’s response to his 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 argued that service of his The summary judgment motion was served on the plaintiff through the court’s electronic system, thus rendering an additional three (3) day allowance to respond pursuant to OCGA § 9-11-6(e). In denying plaintiff’s response to strike, the Clerk Court found that plaintiff’s counsel had been served in its motion for summary judgment pursuant to defendant’s certificate of service by United States mail. The Clerk Court further refused to accept defendant’s assertion in a subsequent filing that his motion was served through the court’s electronic filing service, ruling that it was inconsistent with the information contained in defendant’s certificate of service with his motion for summary judgment.
So what should you do as a savvy lawyer? Assuming opposing counsel has not responded to your motion after thirty (30) days, you must wait thirty-three (33) days to notify the court of opposing counsel’s failure to respond. Also, you may consider including, in your certificate of service, the following: “Today I served a copy of the foregoing document on counsel of record through the statutory electronic service and through the court’s electronic filing system, which will automatically accomplish the following. …”
The content of this article is intended to provide a general guide to this topic. Expert advice should be sought regarding your specific circumstances.
