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BILLMAN v. MUNICIPALITY OF ANCHORAGE3/13/1998
ble jeopardy motions under advisement again. And because these defense motions were again under advisement, the Rule 45 computation remained tolled at Day 1. See Rule 45(d)(1).
Under Rule 45(d)(1), the Rule 45 computation remained tolled until either (a) the court ruled on the defendants' double jeopardy motions or (b) the court held those motions under advisement, undecided, for longer than 30 days. As explained above, the district court took no action in Billman's and Kang's cases for three months. (Action was finally prompted by the Municipality's April 23rd motion for formal reconsideration of the court's earlier rulings on the defendants' double jeopardy contentions.) Thus, the Rule 45 clock commenced running again on February 15th — the 31st day that the district court held the defendants' motions under advisement. February 15th effectively became Day 1 for Rule 45 purposes.
This means that on May 15th, when the defendants filed their motions to dismiss on Rule 45 grounds, Rule 45 had not expired. Rather, the Rule 45 clock stood at 91 days: 15 days in February (February 15th through 29th, inclusive), 31 days in March, 30 days in April, and 15 days in May.
On May 21st, the Municipality filed a response to the defendants' Rule 45 arguments. From May 22nd until June 26th, the district court held Billman's and Kang's Rule 45 claims under advisement. Then, on June 26th, the district court denied the defendants' Rule 45 motions and set the defendants' trial for July 17th. When Billman and Kang appeared for calendar call on July 16th, they again moved for dismissal under Rule 45, and again the district court denied their motions to dismiss.
By the time the defendants appeared in court on July 16th, the Rule 45 clock had advanced another 26 days. The Rule 45 clock, which had stopped when Billman and Kang filed their Rule 45 motions on May 15th, began to run again on June 21st — the 31st day that the district court held the defendants' motions under advisement. Thus, the Rule 45 clock was ticking during the final 10 days of June and the first 16 days of July. However, Rule 45 still had not been violated. The total computation now stood at 117 days — the original 91 days (from Feb. 15th through May 15th), plus the additional 26 days (from June 21st through July 16th).
In short, Billman and Kang were scheduled for trial within the time limits of Rule 45. Accordingly, the judgements of the district court are AFFIRMED.
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