Best of 2008: “Other People’s Money”

Originally posted 2012-11-13 14:24:39. Republished by Blog Post Promoter

Originally published January 8, 2008.

Malpractice Be Not Proud’s Law Blog reports about the seven-figure effect in the Central District of California for a one-minute-late filing:

A judgment in favor of [Morrison & Foster’s] client was entered on Sept. 26, giving Toshiba’s attorneys 14 days – until Oct. 10 – to file their attorneys-fees motion. Here are the relevant paragraphs straight from Judge Cormac Carney’s opinion. For anyone trying to meet a filing deadline, they might make your choke on your Cheerios:

Here, [Toshiba’s] purported reason for its delay is that its courier was caught in traffic at 3:30 in the afternoon in Santa Ana, California. Mr. Mersel, attorney for [Toshiba], asserts that he waited until 3:14 p.m. on the last day of the filing period to deliver the motion to Morrison & Foerster’s regular courier service. Mr. Mersel asserts that although he was aware that the filing deadline was 4:00 p.m., he had “never had a problem with getting papers filed by 4:00 p.m. when delivering them to the attorney service” forty-five minutes in advance. The courier, Mr. Moskus, swiftly responded to Mr. Mersel’s request, leaving on his motorcycle for the courthouse at approximately 3:30 p.m. Unfortunately, Mr. Moskus encountered “unusually heavy traffic” and had to “wait at the railroad crossing on Grand Avenue for a long train to pass.” Consequently, Mr. Moskus arrived at the Courthouse after the office had closed [at exactly 4 PM] and Mr. Mersel was unable to file the motion until the following day, on October 11, 2007.

These circumstances, however regrettable, do not meet the standard for “excusable neglect.” Although the delay was not lengthy and it does not appear that [defendant] was prejudiced by it, the reason for the delay was entirely within [Toshiba’s] control and [Toshiba] has not offered a good faith reason for the delay.

Concluded the judge: “[T]he entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time.”

This is preposterous. Let me share two comments, both of which are found in the comments section of the blog entry.

The first one is mine: I can’t agree that this is an appropriate exercise of the court’s discretion. The loss to the client is wildly out of proportion to the “offense” to the court. Judges are too ready to play with other people’s money — especially when it means less work for them. If the court had substantive problems with the fee request, it could have and should have made those clear and made appropriate adjustments in its fee award decision. It’s really highly arrogant — there’s no reason on earth the exact time of filing should have been an all or nothing proposition, under the circumstances.

And here‘s another point — one that I have thought of frequently, especially when presented with “drop dead” deadlines such as this one (largely no longer relevant because of electronic filing):

What about this?

“All courts of the United States shall be deemed always open for the purpose of filing proper papers, . . ., and making motions and orders.”

So:  Does the Central District of California really close for filing at 4 PM?

Answer: Judges can do whatever they want. Even if technically the “court” was “open” (there may have been a “duty judge” who was theoretically available for emergency applications), the deadline per the order for filing this motion was 4 PM. Can an individual judge, or the local procedures of a given District, override a statute? Of course — they do it all the time.

Just try and explain that to your clients. Well, now you can link here, at least. (Hat tip to David Lat.)

Comments are closed here but still open at the original post.

By Ron Coleman

I write this blog.