This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.
Among the lessons to be learned from this attorney’s mistakes: The clock strikes midnight for more than just Cinderella—that is, they really mean it about a lawyer’s competence in technology. Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.
The client bank’s objection to the debtor’s discharge in bankruptcy had to be filed within 60 days after the first meeting of creditors. Filing through the bankruptcy court’s electronic case filing (ECF) system could be done until midnight. Although the attorney logged onto the system at 11:40 p.m., his complaint was not filed until 12:16 a.m., which the U.S. Court of Appeals for the Tenth Circuit held was too late. His electronic error forfeited the bank’s claim for almost a quarter of a million dollars.
The bank argued that the attorney’s problems with ECF filing made the system effectively inaccessible, so the late filing should be excused. After a hearing, the bankruptcy court ruled that the system was working properly, and it was the lawyer who caused the delay. Id. at *1.
The evidence revealed that the attorney did not complete his deposition of the debtor until 3:00 p.m. on the afternoon of the 60th day (no reason was given for waiting that long). The attorney then drafted the complaint and, with everyone gone, proceeded to try to file it himself.
Two technical problems arose. First, the lawyer was unable to enter the amount of the bank’s claim. The space provided for that entry required whole numbers representing thousands without dollar signs or punctuation. His mistakes, which included using both dollar signs and punctuation, generated an error message that he had to enter “a valid integer number.” Id. at *3. Eventually, after removing dollar signs and commas, he reached the next screen, but five precious minutes were lost. The attorney next ran into difficulty because “he mistakenly believed he needed to pay the fee before the complaint could be filed.” Id. at *4. His efforts, including repeatedly using his back button, used up the remaining 15 minutes. Id. He finally succeeded in completing the filing at 12:16 a.m., which was too late. Id. at *4 n.7. The court of appeals agreed that the attorney’s “errors rather than [] any defects in the court’s ECF system” caused the missed deadline. Id. at *5.
Two facts may have colored the bankruptcy court’s decision. First, during normal working hours, the bankruptcy court has an ECF help desk to assist attorneys. Id. at *2. By waiting so long, that assistance was unavailable. Second, to be registered as an ECF filer, the attorney had to receive training in the system. However, the court noted that he “was unfamiliar with the correct procedure for filing,” id. at *3 n.4, as he had filed only one complaint in the two prior years. Id. at *3 n.2.
On appeal, the bank also argued that the debtor’s discharge resulting from the lack of timely objection did not prevent enforcement of its security interest in the debtor’s property. However, that argument was never raised in the bankruptcy court, so the Tenth Circuit refused to consider it. Id. at *6.
The result in this case may appear hyper-technical (and even unfair). However, it is consistent with other courts’ demands for attorneys’ strict adherence to deadlines and filing procedures. Making sure you know how to use a court’s electronic filing system is a basic requirement in today’s legal environment—and reinforces another old adage: don’t wait till the last minute to do something.
This case teaches that while baseball may be America’s pastime, it is not an excuse for a lawyer missing a deadline.
The defendant moved to dismiss the plaintiff’s Section 1983 claims, filed following his arrest for multiple robberies. The plaintiff received a three-month deferral of the hearing by the district court in California, requiring his opposition to be filed by a particular date. Id. at *1.
His counsel, however, did not file on time. Rather, counsel “moved for a 14-day continuance in order to watch his son make his minor league baseball debut in Illinois.” Id. (emphasis added). Eleven days later, the district court denied the continuance for “no showing of good cause.” Id. Nonetheless, counsel did not file until the date he had requested in his motion for continuance. The court struck the opposition as untimely and granted the motion because failure to file within the deadline “may be deemed consent.” Id.
The U.S. Court of Appeals for the Ninth Circuit affirmed because the attorney’s excuse for delay was “frivolous” as “counsel chose to attend a ballgame instead of timely filing his client’s response to a motion to dismiss.” Id. Obviously, the Ninth Circuit was unwilling to join counsel in a refrain of “take me out to the ball game.”
The cases in this column seem tailor-made for application of old adages. For this one, it is “The third time is not the charm.” As the opinion notes, this is the third appeal that the U.S. Court of Appeals for the Eleventh Circuit heard in the case. Even so, the court noted that after eight years, “we are still stuck on tolling.” Id. at *1.
The plaintiff’s original lawsuit was filed beyond the statute of limitations. He sought to take advantage of the state law provision tolling the statute during periods of mental incapacity. Id. The first appeal overturned the trial court’s motion to dismiss. The second held that there was a genuine issue of fact regarding mental capacity during the applicable time period. Following remand, a pretrial conference was held at which the judge questioned plaintiff’s counsel about the apparent lack of records from the treating psychotherapist who was to testify. At the subsequent trial, a jury found for the plaintiff on the mental incapacity issue, and the case proceeded to discovery on the merits. Id.
In discovery, plaintiff’s counsel disclosed an email in which the plaintiff complained that he was “‘made to look crazy and incompetent in order to toll the statute of limitations’ simply because ‘the lawsuit wasn’t file[d] in time.’” Id. The defense moved for sanctions and the trial court dismissed the case, finding that plaintiff’s counsel “had engaged in bad faith by flagrantly disregarding his discovery obligations and making knowingly false or egregiously reckless misrepresentations about the existence of evidence.” Id.
On appeal, the court addressed two principal issues. The first issue was whether the email was a privileged attorney-client communication. The trial court had held that the email was not privileged as it was primarily directed to the plaintiff’s doctor and did not seek legal advice from the attorney. Id. at *6. The court of appeals assumed without deciding that privilege applied. However, it agreed with the trial court’s alternative basis that the plaintiff had “waived the confidential nature of the email when he made [the doctor’s] opinions central to his claim of mental incapacity for the purpose of tolling the statute of limitations.” Id. at *8.
Turning to the sanction imposed, the Eleventh Circuit pointed out that the “sanction of dismissal with prejudice is an extreme and disfavored remedy.” Id. at *9. However, it can be appropriate “where any other sanction would fail to cure the harm that the attorney’s misconduct would cause to the defendant.” Id.
Not only had counsel failed to disclose the critical email, he had misled the trial court about the records of the doctor’s treatment. At the pretrial conference, the attorney claimed not to know if the doctor had any records of her treatment and expressed belief that there were none. However, the doctor had informed counsel a year earlier that plaintiff’s file “covers several years and at least 3 storage boxes.” Id. at *10. Once the existence of these records came to light at the trial on mental capacity, counsel “refused to accept responsibility for misleading the court” and blamed the doctor for failing to produce the records, the court for misunderstanding him, and defense counsel for failing to depose the doctor. Id.
On appeal, plaintiff’s counsel repeated these arguments. The Eleventh Circuit concluded that “the district court reasonably rejected [counsel’s] claims of misunderstanding or mistakes as implausible.” Id. Thus, “[o]n the whole, the record supports the district court’s finding that this conduct rose to the level of bad faith and willful contempt sufficient to warrant the imposition of sanctions.” Id. The court of appeals concluded: “Although we are reluctant to affirm a dismissal with prejudice where the plaintiff . . . was not actually culpable for any misconduct, we cannot say that the district court abused its discretion by imposing the harsh sanction of dismissal with prejudice based on the conduct of his attorney.” Id. at 12.
Plaintiff’s counsel successfully fouled off the first two appeals but ultimately struck out on the third based on his own misconduct.
This case has an involved procedural history, complicated by the involvement of tribal courts, where many of us may not practice. The attorney’s mistakes, however, are more mainstream, involving poor appellate choices and arguments.
A company claimed that the Iowa Tribe breached a contract and sought arbitration before the American Arbitration Association. The tribe argued that dispute had to be heard in tribal court and obtained a preliminary injunction from the tribal trial court preventing arbitration. The company filed a notice of appeal of this injunction with the tribal supreme court. Id. at *1.
Before the tribal supreme court ruled, the company sought an injunction in federal district court to force the matter back to arbitration. The district court dismissed the case sua sponte based on the tribal court exhaustion rule, under which the tribal supreme court had to decide the matter before the federal district court could exercise jurisdiction. The company unsuccessfully sought reconsideration of the district court’s dismissal and then appealed to the Tenth Circuit. Id.
While the federal appeal was pending, the tribal supreme court dismissed the case before it due to the company’s failure to comply with tribal appellate procedure. The company then filed a new complaint in federal district court seeking the same relief as in its initial action. The company also moved to dismiss the federal appeal as moot. Id. at *2. The tribe responded that it did not oppose dismissal but sought sanctions against the company for a frivolous appeal. Id.
The Tenth Circuit granted the motion to dismiss “[b]ecause both parties want the appeal dismissed and neither party asserts dismissal will undermine fundamental fairness or the interests of justice.” Id. The sticking point was the tribe’s motion for sanctions for a frivolous appeal.
The Tenth Circuit ruled that the appeal was not frivolous as filed because there was an argument that the district court’s dismissal was a final order. Id. at *3. However, the court granted sanctions because the company’s appeal was frivolous as argued.
The court pointed out that the argument section of the company’s opening brief was under two pages. The brief did not address the basis of the district court’s decision—comity and tribal court exhaustion. Citing a U.S. Court of Appeals for the Sixth Circuit case, the company contended that the Tenth Circuit should establish guidelines requiring an opportunity to respond to a sua sponte dismissal. However, the company’s brief failed to discuss a Tenth Circuit precedent that allowed sua sponte dismissal without such guidelines. Nor, the Tenth Circuit noted, did the company address why its argument on reconsideration did not make the initial sua sponte dismissal harmless as its arguments against dismissal were ultimately heard by the district court. Id. at *4. Finding that the appeal was frivolous as argued, the court of appeals awarded the tribe’s attorney fees against the company’s attorney.
Regardless of the complicated procedural twists, the attorney could have avoided paying the other side’s fees by doing a competent job of articulating arguments and addressing relevant precedent.
