Extensions of Time to File Appellant's Opening Brief
An appellant must file his or her brief within forty days after the certificate of record is filed. Com. R. App. P. 31(a).
Time may be enlarged by motion to the Court, but "extensions of time are not automatically granted; rather, they are permissive and subject to certain procedural requirements." Babauta v. Babauta, 2004 MP 2 P 7, 7 N. Mar. I. 23; see Com. R. App. P. 31(d).
Thus, in Babauta a second request to extend time was denied where movant "neither utilized the original forty days . . . nor . . . the fifty-two day extension she was granted," id. P 8, and filed a motion procedurally deficient for failure to include Com. R. App. P. 31(d)(6) declarations -- that counsel exercised diligence and would file the brief within the requested time. Id. P 10.
Although not an expressed basis for the Babauta decision, the Court noted counsel requested additional time "notwithstanding counsel's declaration that the brief would be completed without further extensions of time . . . ." Babauta, 2004 MP 2 P 4.
Since Com. R. App. P. 31(d)(6) requires a declaration stating "the brief will be filed within the time requested," an argument could be made our appellate rules militate against multiple extension of time for filing a brief.
This argument is made stronger by Babauta's refusal to grant an extension based on the lack of a Rule 31(d)(6) declaration.
However, Rule 31(d)(2)-(3) makes clear prior extensions are not an automatic bar.
For our purposes, suffice it is to say multiple requests to extend time are disfavored at least in policy, if not by rule, although the Court may grant as many as it sees fit, even overlooking technical deficiencies, pursuant to Com. R. App. P. 2. See Babauta, 2004 MP 2 P 13. We leave for another day the precise limitations on multiple requests to extend time.