Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 25
FILING AND SERVICE
(a) Filing.
(1) Filing with the Clerk. A paper required or permitted to be filed in a court of appeals must be filed with the clerk.
(2) Filing: Method and Timeliness.
(A) In general. Filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the time fixed for filing.
(B) A brief or appendix. A brief or appendix is timely filed, however, if on or before the last day for filing, it is:
(i) mailed to the clerk by First-Class Mail, or other class of mail that is at least as expeditious, postage prepaid; or
(ii) dispatched to a third-party commercial carrier for delivery to the clerk within 3 calendar days.
(C) Inmate filing. A paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
(D) Electronic filing. A court of appeals may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules.
(3) Filing a Motion with a Judge. If a motion requests relief that may be granted by a single judge, the judge may permit the motion to be filed with the judge; the judge must note the filing date on the motion and give it to the clerk.
(4) Clerk's Refusal of Documents. The clerk must not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rule or practice.
(b) Service of All Papers Required. Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party's counsel.
(c) Manner of Service. Service may be personal, by mail, or by third-party commercial carrier for delivery within 3 calendar days. When reasonable considering such factors as the immediacy of the relief sought, distance, and cost, service on a party must be by a manner at least as expeditious as the manner used to file the paper with the court. Personal service includes delivery of the copy to a responsible person at the office of counsel. Service by mail or by commercial carrier is complete on mailing or delivery to the carrier.
(d) Proof of Service.
(1) A paper presented for filing must contain either of the following:
(A) an acknowledgment of service by the person served; or
(B) proof of service consisting of a statement by the person who made service certifying:
(i) the date and manner of service;
(ii) the names of the persons served; and
(iii) their mailing addresses or the addresses of the places of delivery.
(2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(B), the proof of service must also state the date and manner by which the document was mailed or dispatched to the clerk.
(3) Proof of service may appear on or be affixed to the papers filed.
(e) Number of Copies. When these rules require the filing or furnishing of a number of copies, a court may require a different number by local rule or by order in a particular case.
Cross Reference: FRAP 26(c), Additional Time after Service by Mail; FRAP 40(a), Time for Filing Petition for Rehearing.
PRINCIPAL OFFICE OF CLERK
The principal office of the Clerk shall be in the United States Court of Appeals, 95 Seventh Street, San Francisco, California.
The duties of the clerk are set forth in FRAP 45.
Notice of Delay: If an appeal or petition has been pending before the court for any period in excess of those set forth below, the party is encouraged to communicate this fact to the court. Such notice can be accomplished by a letter to the Clerk identifying the case and the nature of the delay. Generally, such a letter would be appropriate if:
(1) a motion has been pending for longer than four (4) months;
(2) the parties have not received notice of oral argument or submission on the briefs within fifteen (15) months after the completion of briefing;
(3) a decision on the merits has not been issued within nine (9) months after submission;
(4) the mandate has not issued within twenty-eight (28) days after the time to file a petition for rehearing has expired; or
(5) a petition for rehearing has been pending for longer than six (6) months.
Litigants are advised that the complexity of a given matter may preclude court action within the noted time period.
COMMUNICATIONS TO THE COURT
All communications to the court, including papers to be filed, shall comply with FRAP 32 and shall be addressed to the Clerk at the United States Court of Appeals, Post Office Box 193939, San Francisco, California 94119-3939. When it is intended that a communication come to the personal attention of a judge or judges, sufficient copies, not including the original, shall be supplied to the Clerk so that the Clerk can furnish a copy to each judge.
Cross Reference: Circuit Rules 27-1, 27-2, 27-3, and 27-6, Motions Practice; Introduction, Pages xvii - xxi.
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 25-2
The address for same day or overnight mail delivery is Clerk, United States Court of Appeals, 95 Seventh Street, San Francisco, California 94103-1526.
FACSIMILE FILING AND ELECTRONIC SERVICE
25-3.1 Direct Filing.
The Court does not accept for filing documents transmitted directly by telephone facsimile machine ("fax"), except in extreme emergencies. Parties may transmit documents directly to the court only upon request and with permission of court personnel. Any party who transmits a document to the court without authorization may be sanctioned.
Any document transmitted directly to the court by fax must show service on all other parties by fax or hand delivery, unless another form of service is authorized by the court. Unless otherwise instructed, the filing party shall assure that a signed original and necessary copies are filed in the office of the Clerk on or before the next business day. 25-3.2 Third Party Filing.
The court accepts for filing documents transmitted to third parties by fax and subsequently delivered by hand to the court. Documents filed in this fashion must comply with all applicable rules, including requirements for service, number of copies and colors of covers.
The filing party shall designate one copy of the filed document as the "fax original." It shall be of laser quality and shall bear the notation "fax original." Other copies shall not bear that notation.
A party filing a document by third party fax shall not send the signed original of the document to the court. Rather the filing party shall retain the signed original in its files until issuance of the court's mandate in the case. If a party is unable, upon request by the court, to produce the signed original of a document that is filed by fax, the document may be stricken from the record.
25-3.2 Third Party Filing
The court accepts for filing documents transmitted to third parties by fax and subsequently delivered by hand to the court. Documents filed in this fashion must comply with all applicable rules, including requirements for service, number of copies and colors of covers.
The filing party shall designate one copy of the filed document as the "fax original." It shall be of laser quality and shall bear the notation "fax original." Other copies shall not bear that notation.
A party filing a document by third party fax shall not send the signed original of the document to the court. Rather the filing party shall retain the signed original in its files until issuance of the court's mandate in the case. If a party is unable, upon request by the court, to produce the signed original of a document that is filed by fax, the document may be stricken from the record.
25-3.3 Electronic Service
Electronic service is permitted only when the party being served has executed Form 13 found in the appendix to these rules on or before the date the document is electronically served. The original and the copies of the initial electronically-served document filed with the court shall be accompanied by a copy of the consent form as executed by the party served. If a party wishes to revoke such consent, the party shall inform counsel and the court by letter as to the revocation of consent. Substitution of counsel operates as a revocation of consent.
CALENDARED CASES
After a case has been scheduled for oral argument, has been argued, is under submission or has been decided, all papers submitted to the court for filing must include the latest of the date of argument, submission or decision. If known, the names of the panel members shall be included. This information shall be included on the initial page and/or cover, if any, immediately below the case number. (New Rule 7/1/2000)