This post will discuss the how to ask a Tennessee trial court for permission to seek more time to respond to court order or court-rule imposed deadline.
Typical Scenario Giving Rise to the Question
Attorney has an approaching deadline to file a document in court in a pending case that she likely will not meet. Alternatively, she realizes, after the fact, that she missed the deadline to file a document. She knows that she has a good reason for not meeting the original deadline and does not want to subject her client to adverse consequences, including (potentially) dismissal of the case.
Relevant Statutes or Rules
- Tenn. R. Civ. P. 6.02: Enlargement.
When by statute or by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done, where the failure to act was the result of excusable neglect, but it may not extend the time for taking any action under Rules 50.02, 59.01, 59.03 or 59.04, except to the extent and under the conditions stated in those rules. This subsection shall not apply to the time provided in Tennessee Rule of Appellate Procedure 4(a) for filing a notice of appeal, nor to the time provided in Tennessee Rule of Appellate Procedure 24(b) & (c) for filing a transcript or statement of evidence.
Rule 6.02 establishes a single standard for the courts to follow in granting enlargement of the time periods within which various acts must be done. Extension is to be allowed liberally when request is made before the original period or any previous extension thereof has expired. Extension is to be allowed, even after expiration of the original period or any previous extension thereof, where the failure to take timely action was due to excusable neglect. The power to enlarge the time under this Rule does not apply to time periods fixed by Rule 50.02 (Party whose motion for directed verdict made at close of all the evidence was not granted, may, within 30 days after entry of judgment or discharge of jury without a verdict, move for judgment in accordance with the party’s motion for directed verdict); Rule 59.01 (Motion for new trial must be filed and served within 30 days after entry of judgment); Rule 59.03 (Motion to alter or amend a judgment must be filed within 30 days after entry of judgment); or Rule 59.04 (Court on its own initiative may alter or amend judgment or order a new trial within 30 days after judgment).
Author Note: there also may be a local rule that impacts the law on this subject.
Important Case Law
- Williams v. Baptist Memorial Hosp., 193 S.W.3d 545, 550-51 (Tenn. 2006).
As the Court of Appeals has noted, the United States Supreme Court has set out the most authoritative explanation of excusable neglect:
“[A] party’s failure to meet a deadline may have causes ranging from forces beyond its control to forces within its control…. The former will almost always substantiate a claim of excusable neglect; the latter will not. However, neglect extends to more than just acts beyond a party’s control and intentional acts. It encompasses “simple, faultless omissions to act and, more commonly, omissions caused by carelessness.”
The Supreme Court’s comprehensive framework, which we adopt, requires a court to consider (1) the risk of prejudice to parties opposing the late filing, (2) the delay and its potential impact on proceedings, (3) the reasons why the filings were late and whether the reasons were within the filer’s reasonable control, and (4) the good or bad faith of the filer. Pioneer Inv. Servs. Co., 507 U.S. at 395, 113 S. Ct. 1489; see also State ex rel Sizemore v. United Physicians Ins. Risk Retention Group, 56 S.W.3d at 567.
These considerations, and the terms of Rule 6.02, dictate that whether to grant an enlargement of time is left to the discretion of the trial court. As we have often noted, a trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.”
- Douglas v. Estate of Robertson, 876 S.W.2d 95 (Tenn. 1994).
Rule 6.02, Tenn.R.Civ.P. grants the trial judge broad discretion to enlarge many of the procedural time limitations prescribed by the Rules of Civil Procedure.”
- Kenyon v. Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003).
Patient’s attorney’s failure to timely file medical expert affidavit opposing summary judgment motion in medical malpractice action was caused by “excusable neglect”; attorney had not missed any other deadlines, failure did not delay the hearing, defendant physician was not prejudiced as physician’s attorney had received a draft copy of affidavit a week earlier and effectively presented motion for summary judgment, and without affidavit patient had no other evidentiary materials to demonstrate the existence of a genuine fact issue for trial.
Practical Tips
- Before filing a motion for extension of time, email or call opposing counsel and determine if a short extension of the deadline can be reached by agreement. If so, document the agreement in a proposed agreed order and file it before the deadline. Caution: many judges will automatically sign such orders, but some will not. Know the proclivities of your judge and if you are unsure, file a formal, properly supported motion to extend and a proposed agreed order. Then, if the judge has concerns about whether an extension should be granted, you at least have a motion on file before the expiration of the deadline and thus can rely on the “good faith” standard.
- If at all possible, file your motion for extension of time before the original prescribed deadline has arrived. If you file your motion before the original deadline, you will only have to show good cause for the Court to grant the motion. If you wait to file your motion for extension of time until after the original deadline, you instead will be accountable for showing excusable neglect, a higher bar. You are encouraged to seek agreement of adverse counsel before filing the motion so that you can state you have an agreement in the motion. The potential need for this type of motion is yet another reason why it is important to have a good working relationship with adverse counsel, which includes extending him or her reasonable accommodations when doing so will not adversely affect your client’s rights or when the circumstances are such that the trial judge likely will agree to the request for an extension.
- When drafting your motion, keep in mind the court’s four considerations in their decision on whether to grant your motion. Make sure you address all four in your motion.
- Will the opposing party be prejudiced?
- Will the extension of time unreasonably delay the proceeding?
- Have you shown good cause/excusable neglect for missing the original deadline? (Explain the reasons why more time is needed.)
- Are you filing for this extension in good faith?
- Certain deadlines cannot be extended. Be aware of the exceptions to filing a motion for extension of time as prescribed in Rule 6.02. Recall that if your deadline to file was for one of the following, Rule 6.02 will not apply:
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- Motion for directed verdict made at close of all the evidence was not granted, may, within 30 days after entry of judgment or discharge of jury without a verdict, move for judgment in accordance with the party’s motion for directed verdict (Rule 50.02);
- Motion for new trial must be filed and served within 30 days after entry of judgment (Rule 59.01);
- Motion to alter or amend a judgment must be filed within 30 days after entry of judgment (Rule 59.03); or
- Court on its own initiative may alter or amend judgment or order a new trial within 30 days after judgment (Rule 59.04).
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- After you have filed the motion seeking an extension of time to file and/ or serve a document, keep working to complete the work required and get it filed / served as promptly as you can. Do not assume that the motion will be granted and that you will be given additional time to complete the filing. Stated differently, if you want to increase the odds that your motion to extend time will be granted, (a) file the motion before the deadline to file the document at issue; and (b) file and/or serve the work produce at issue promptly, preferably before the hearing on the motion to extend time. Do not just sit back after filing the motion and see if the Court will grant you more time – do the work!
- If your opponent gives you more time, be sure to work with him or her so that the extension of time does not work a prejudice. For example, if the plaintiff is going to be a week late on expert disclosures, and the defense is willing to accept the late submission of disclosures, it is reasonable for the defendants to have an additional week under the scheduling order to disclose experts.
- Do not do the following:
- Assume that because the trial court has broad discretion to grant an extension of time, the court will automatically grant it to you. Draft a persuasive and thorough motion that details exactly why the court should grant your motion for an extension.
- Always rely on filing motions for extensions of time to meet your deadlines. Filing a motion for extension of time can be one tool in your toolkit, but it should not be used as a tool to procrastinate. It should be used rarely.
Updates / Related Posts
January 15, 2023: Click on the link for additional information on this topic concerning the effort to seek more time to file a motion to substitute parties,