Circuit Rule 31-2: Time for Service and Filing

31-2.1. Requirement of Timely Filing

(a) Parties shall observe the briefing schedule set by an order of the Court of Appeals. Specific due dates set by Court order are not subject to the additional 3-day allowance for service of previous papers by mail set forth in FRAP 26(c). The filing of the appellant’s brief before the due date shall not advance the due date for the appellee’s brief. If the Court does not set specific due dates for the opening and/or answering brief, the presumptive deadlines of FRAP 31(a) shall apply. However, unless otherwise established by Court order in a particular case, the deadline for filing a reply brief is 21 days from the date of service of the last timely filed answering brief. (Rev. 12/1/09; 6/1/17)

(b) [Abrogated 12/1/09]

(c) [Abrogated 1/99]

31-2.2. Extensions of Time for Filing Briefs

(a) Streamlined Extensions of Time: If a party has not previously filed a motion for an extension of time to file an opening, answering, reply or cross-appeal brief under subsection (b) of this rule, that party may obtain a single streamlined extension of time to file that brief not to exceed 30 days. The streamlined extension of time is not available:

(1) if a case has been previously expedited;

(2) when a Notice of Oral Argument has issued; or

(3) for any brief filed in a Preliminary Injunction Appeal (Ninth Circuit Rule 3-3), an Incarcerated Recalcitrant Witness Appeal (28 U.S.C. § 1826; Ninth Circuit Rule 3-5) or a Class Action Fairness Act appeal (28 U.S.C. § 1453(c)).

Parties registered for electronic filing may request a streamlined extension of time online via the Appellate Electronic Filing System using the “File Streamlined Request to Extend Time to File Brief” event. A request must be made on or before the brief’s due date. Parties not registered for electronic filing may request a streamlined extension of time by completing Form 13 and placing the form in the mail to the Clerk on or before the brief’s due date.

The Clerk will approve requests that comply with the rule and will provide the parties with a new schedule. The Clerk will inform parties not eligible for relief under this subsection as to the appropriate method to obtain relief. (Rev. 1/1/15)

(b) Written Motions for Extension of Time to File a Brief: In all other cases, an extension of time may be granted only upon written motion supported by a showing of diligence and substantial need. (Rev. 1/1/15)

The motion shall be filed at least 7 days before the expiration of the time prescribed for filing the brief, and shall be accompanied by a declaration stating: (Rev. 12/1/09)

(1) when the brief is due;

(2) when the brief was first due;

(3) the length of the requested extension;

(4) the reason an extension is necessary;

(5) movant’s representation that movant has exercised diligence and that the brief will be filed within the time requested;

(6) whether any other party separately represented objects to the request, or why the moving party has been unable to determine any such party’s position; and

(7) that the court reporter is not in default with regard to any designated transcripts. (Rev. 12/1/09)

A conclusory statement as to the press of business does not constitute a showing of diligence and substantial need. (Rev. 1/96)

Circuit Advisory Committee Note to Rule 31-2.2

If a party files a motion for a first extension of time to file a brief on or before the due date for the brief, and the Court does not rule on the motion until shortly before the due date, or on or after the due date for the brief, the Court ordinarily will grant some additional time to file the brief even if the Court does not grant the motion in full. Multiple motions for extension of time to file a brief are disfavored, however, and the Court may decline to grant relief if a successive motion fails to demonstrate diligence and substantial need.

If the Court does not act on a motion for extension of time to file a brief before the requested due date, the Court nonetheless expects the moving party to file the brief within the time requested in the motion.

The streamlined extension of time is available only for opening, answering, reply and cross-appeal briefs. A request to extend any other deadline must be made by way of written motion. The streamlined extension of time is intended to be the sole extension of time to file a brief; parties should file a written motion if 30 days is not sufficient time to prepare the brief. If a streamlined extension of time is approved, any further request for an extension of time to file a brief must be made in writing pursuant to Circuit Rule 31-2.2(b). The Clerk’s approval of a party’s streamlined extension of time to file an initial brief does not prevent that party from obtaining a streamlined extension of time to file a subsequent brief.

The streamlined extension of time replaces the former 14-day telephonic extension of time. (New 01/01; Rev. 12/1/09; Rev. 1/1/15; Rev. 6/1/19)

31-2.3. Failure to File Briefs

If the appellant fails to file a brief within the time allowed by FRAP 31(a) or an extension thereof, the Court may dismiss the appeal pursuant to Circuit Rule 42-1. If appellee does not elect to file a brief, appellee shall notify the Court by letter on or before the due date for the answering brief. Failure to file the brief timely or advise the Court that no brief will be filed will subject counsel to sanctions. (Rev. 7/93; 12/1/09)