October 26, 2010

Friends, what’s in a name? The FedEx Rule in the California Supreme Court

Rule 8.25(b)(3) of the California Rules of Court provides that “[a] brief, a petition for rehearing, an answer to a petition for rehearing, a petition for review, an answer to a petition for review, or a reply to an answer to a petition for review is timely if the time to file it has not expired on the date of: (A) Its mailing by priority or express mail as shown on the postmark or the postal receipt; or (B) Its delivery to a common carrier promising overnight delivery as shown on the carrier’s receipt.” This so-called “FedEx Rule” has no doubt saved the bacon of more than one harried California appellate practitioner.

But what if you’re not filing one of the enumerated documents? Can you claim your filing is timely so long as you give it to FedEx or one of its overnight mail competitors before the sand runs out of the hour glass? This comes up most often, we’ve found, when you’re filing an application for permission to file an amicus curiae brief. (See Cal. Rules of Court, rule 8.520(f).) An “application,” you see, is neither a “brief,” nor any of the other specified documents mentioned in the rule.

Perhaps predictably, given the rule’s ambiguity, court clerks have given different responses at different times. The Supreme Court’s clerks have told us an application to file an amicus brief is a “brief” and therefore can be timely filed under Rule 8.25(b)(3). But we know that some Courts of Appeal have rejected such applications on the ground that an application is technically not a brief.

So what to do? Unless and until the rule is amended to resolve the ambiguity, it’s probably best to assume that as an amicus you cannot rely on the FedEx Rule. So file your amicus applications and briefs a day early.

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