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United States Court of Appeals,
Fifth Circuit.
No. 96-50843
Summary Calendar.
Yong Un HONG, Individually and as next friend of Chi Hyon Hong a
Minor; Kyong-Sim Hong, Individually and as next friend of Chi Hyon
Hong a Minor, Plaintiffs-Appellants,
v.
Deborah Ann SMITH, Defendant-Appellee.
Dec. 9, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Deborah Ann Smith ("Smith") has moved to dismiss Yong Un Hong
and Kyong-Sim Hongs' (the "Hongs") appeal on the grounds that the
Hongs failed timely to order a trial transcript. The Court Clerk
of the Fifth Circuit sent the Hongs a letter giving them 15 days
from the date of the letter (July 28, 1997) to send the docketing
and filing fees for the appeal in this case to the district court
clerk and to make arrangements with the court reporter to order and
pay for the trial transcript. On August 11, within the 15-day
period, the Hongs timely notified the Court Clerk that they had
paid the fees and had made arrangements to order and pay for the
trial transcript; in fact, they had not ordered and paid for the
transcript until August 15, after the 15-day period had run. The
Hongs nevertheless contend that the trial transcript should be
considered to have been timely ordered because under FED. R. APP.
1

P. 26(c), they should receive three additional days to respond to
the court clerk's letter as the letter was served by mail and it
was postmarked the day after it was dated. See FED. R. APP. P.
26(c) & advisory committee's note (1996) (stating that if a party
served receives service after the date indicated on the letter, it
has three additional days to respond). If Rule 26(c) applies, then
Smith's motion to dismiss the Hongs' appeal must be denied because
the Hongs ordered the trial transcript within that additional
three-day period.
Although we have not specifically decided whether Rule 26(c)
applies to permit additional time to file trial transcripts, we
have decided similar cases under FED. R. CIV. P. 6(e), upon which
the pre-1996 version of Rule 26(c) was based.1 In Lauzon v.
Strachan Shipping Co., 782 F.2d 1217, 1220 (5th Cir.1985), we held
that:
[t]he fact that notice is to be served by mail is not
dispositive. The correct inquiry is whether the required
actions must be performed within a prescribed period of filing
or of service. If the act is to be taken after filing, the
time for action begins to run from that date. If the act is
to be taken after service, the three day extension of either
1Prior to 1996, Rule 26(c) read:
[w]henever a party is required or permitted to do an act
within a prescribed period after service of a paper upon
that party and the paper is served by mail, 3 days shall
be added to the prescribed period.
Rule 26(c) now reads:
[w]hen a party is required or permitted to act within a
prescribed period after service of a paper upon that
party, 3 calendar days are added to the prescribed period
unless the paper is delivered on the date of service
stated in the proof of service.
2

FED. R.APP. P. 26(c) or FED. R. CIV. P. 6(e) applies.
See also Speck v. United States, No. 93-5144, 1994 WL 745411, at *1
(Fed.Cir. Apr. 20, 1994) (order) (holding that Rule 26(c) applies
only where a party is required or permitted to do something after
being served with a paper by a party, not to a time period
prescribed by court order). In this case, the Court Clerk's letter
prescribed a 15-day period for the Hongs to pay the docketing and
filing fees and to order and pay for a trial transcript, running
from the date of the letter. Because the Hongs' time for filing a
response ran from the date of the Clerk's letter, not from the date
of its receipt, this case is analogous to those cases in which the
time for action begins at the date of filing. Accordingly, under
case law prior to 1996, neither FED. R. CIV. P. 6(e) nor FED. R.APP.
P. 26(c) would apply to permit a three-day extension of time.2
The advisory committee's note to the 1996 amendments to Rule
26(c) state that the main purpose of the 1996 changes was to
accompany changes in Rule 25 that permit service on a party by a
commercial carrier. See FED. R.APP. P. 26 advisory committee's note
(1996). Neither the revised text of Rule 26(c) nor the
accompanying advisory committee's note indicates that the changes
were intended to allow a three-day extension of time for court
prescribed periods of time for filing, and no courts of which we
are aware have held that the 1996 amendments to Rule 26(c) made
2Even assuming that the date of the Court Clerk's letter
should be the date that it was postmarked, the Hongs' ordering of
the trial transcript still would not be within the 15-day period.
Thus, we do not decide whether the 15 days should begin on the date
the letter was dated or the date it was postmarked.
3

such a change. Had the advisory committee intended to expand
dramatically the reach of Rule 26(c) by making it also apply to
court-ordered periods of time for filing, some mention of such an
intention would appear in either the revised text of the rule or
the committee's note. Accordingly, we hold that our pre-1996 case
law interpreting FED. R.APP. P. 26(c) by reference to FED. R. CIV. P.
6(e) is still valid.
Thus, we conclude that the Hongs' trial transcript was not
timely ordered. We do not reach the question of whether "good
cause" might exist to enlarge the period for filing the transcript
under FED. R.APP. P. 26(b) because Rule 26(b) only applies "upon
motion" of a party. The Hongs have not made any such motion, so we
therefore must grant Smith's motion to dismiss the appeal.
IT IS ORDERED that motion of appellee to dismiss the appeal is
GRANTED. IT IS FURTHER ORDERED that the motion of appellee to
dismiss the appeal as frivolous is DENIED AS MOOT. IT IS FURTHER
ORDERED that appellant's motion for award of attorney's fees is
DENIED.

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