Originally posted 2011-01-10 16:45:16. Republished by Blog Post Promoter

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WSJ.com’s Law Blog reports about the seven-figure effect in the Central District of California for a one-minute-late filing:

Statue and column, First Department Courthouse

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:

[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 “

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.”

Does C.D. Cal. 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.)

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

4 thoughts on “Other people’s money”
  1. I will not take the time to look up the citation, but recall with great clarity a 9th Circuit opinion from the late ’80s or early ’90s, holding that the Court’s rejection of a Complaint on the last day before the statute of limitations expired based upon the law firm’s failure to two-hole punch it per local rules was an abuse of the Court’s discretion — something very close to a holding that neither clerk nor judge could defeat a party’s substantive rights by applying these local restrictions and requirements. Maybe an ambitious reader will look it up for all of us.

  2. In my practice experience in Southern California, the state courts had a reputation for being much more forgiving than the federal courts. Clerks taking filings in state courts often fudged deadlines by taking papers after the window had supposedly closed, especially for couriers with whom they were friendly. I even heard about clerks willing to backdate next-day filings for couriers with whom they had relationships. I don’t know how the attorney service I talked to was able to procure such favors from clerks. On the one hand, such practices injected some needed mercy and fairness into the system. On the other hand, since the availability of such treatment seemed to depend on having a well-connected attorney service, the practice raises a panoply of due process and equal protection concerns.

  3. “Judges are too ready to play with other people’s money”

    Well put, and aptly describing one of the biggest reasons I no longer do litigation. (Not because I was often a little late, but because I cared about how the limited resources of my clients were too often squandered casually by judges.)

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