With the advent of CM/ECF and electronic filing, attorneys today rely almost exclusively on their computers to file pleadings and monitor deadlines. What happens if you experience problems with your e-mail and you miss a deadline? “You’re out of luck,” says the Fourth Circuit in Robinson v. Wix Filtration Corp.; a 2-1 opinion written by Judge Duncan, with Judge King dissenting.
After Robinson’s employment action was removed to federal court, a magistrate judge issued a pretrial and case management plan that set August 8, 2008, as the deadline to file dispositive motions. And, on August 8, Wix filed a motion for summary judgment. Robinson never filed a response and on December 3, 2008, after reviewing the record and Wix’s argument, the district court entered summary judgment in favor of Wix. Robinson filed a motion under Rule 59(e) and Rule 60 on December 12, 2008, claiming that his counsel had not received electronic notice because his counsel’s e-mail system had malfunctioned after being attacked by a malware virus. The district court denied the motion, and the Fourth Circuit affirmed.
According to the majority opinion:
“We can hardly say that the district court abused its discretion in declining to vacate its judgment to prevent ‘manifest injustice’ given that Appellant’s failure to receive notice of the motion resulted from his counsel’s conscious choice not to take any action with respect to his computer troubles.”
In addition, the court noted that the error arose, in part, because of counsel’s strategic choice not to call opposing counsel after the deadline for filing dispositive motions had passed because he did not want to alert them to the deadline. The court was also unpersuaded by Robinson’s argument that his suit should not be dismissed because of his counsel’s error. According to the court, “a party voluntarily chooses his attorney as his representative in the action, and, thus, he cannot later avoid the consequences of the acts or omissions of this freely selected agent.”
It was on this point, principally, that Judge King disagreed with the majority. In his view, Robinson should have an opportunity to litigate his case on the merits, irrespective of his counsel’s failure to abide by the court’s scheduling order.
Judge Davis wrote a short concurring opinion to address Judge King’s dissent. According to Judge Davis, “the agency theory of legal representation is long established” and, thus, Robinson could not escape the consequence of his attorney’s struthian (yet, some would say vulpine) litigation strategy. Judge Davis also noted that in some places lawyers actually “talk to each other frequently, even lawyers on opposing sides of disputes. They discuss, for example, in advance, proposed or expected motions and other litigation events; they stay in contact with each other during the pendency of the case.” Had those professional courtesies been extended, Judge Davis said, “what happened in this case would be highly unlikely to happen.”
The decision makes clear that attorneys cannot rely solely on electronic notice, but must make an effort to monitor the case docket, especially if they are experiencing computer problems, as a court is unlikely to entertain a “my e-mail was not working” defense. It is also advisable to inform the court and opposing counsel about problems sending or receiving e-mail.
What is more, in all three opinions, either explicitly or implicitly, the court relates a sense of regret and frustration with respect to the lack of communication between counsel. Instead of playing a game of “Gotcha!” with the deadlines, had counsel been in touch about filings, Robinson would have had an opportunity to respond. Nevertheless, the court made clear that even in the absence of a response, a “district court must review the motion . . . and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law.”
Note: Judge Davis’s concurrence at note 2 quotes to two intellectual giants, in perhaps a “Posnerian” attempt to provide the bar with a bit of culture and refinement. I am certain Brian Garner is aghast. The quotes are as follows:
“A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.” Alexander Pope (English Poet).
“The saying that a little knowledge is a dangerous thing is, to my mind, a dangerous adage. If knowledge is real and genuine, I do not believe that it is other than a very valuable possession, however infinitesimal its quantity may be. Indeed, if a little knowledge is dangerous, where is the man who has so much as to be out of danger.” Thomas Henry Huxley (Biologist).