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The Rules of Litigation Are Not a Buffet

Joseph V. Schaeffer

The Rules of Litigation Are Not a Buffet
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Rules are the foundation of any litigation practice. Rules of civil procedure. Rules of evidence. Local rules. Chambers rules. The list goes on. And one of the most important questions that any litigator faces is how to comply with those rules (or mitigate the consequences of any mistake).

A case out of the U.S. Court of Appeals for the Fifth Circuit, Campbell v. Wilkinson et al., No. 20-11002 (5th Cir. Feb. 19, 2021), discusses this issue in the context of a particularly notorious local rule: the U.S. District Court for the Northern District of Texas’s general requirement that each case have “local counsel” residing or maintaining the principal office within that district. Shortly after filing his client’s Title VII discrimination case, the plaintiff’s attorney received an electronic-case-files (ECF) notice about the local-rules requirement and giving him 14 days to comply. But the plaintiff’s attorney decided that the rule did not apply: He had practiced for decades in the Northern District of Texas and maintained a residence and office less than 10 miles away in the neighboring Eastern District of Texas. The district court judge, however, disagreed and dismissed the case under Rule 41(b) of the Federal Rules of Civil Procedure about six weeks after it was filed. The plaintiff then took an appeal after his motion to reconsider was denied.

The Fifth Circuit held that dismissal was unwarranted, and reversed. It primarily reached this conclusion based on the plain language of Rule 41(b), because that rule only allows a court to dismiss based on a violation of “these rules” or “a court order.” Local rules are not encompassed by the term “these rules,” which refers to the Federal Rules of Civil Procedure. Nor would a local rule requiring local counsel be akin to “a court order” because Fifth Circuit precedent had previously relied on the case-terminating consequences of a local rule itself to find that equivalency.

Even if the local rules qualified as a court order, however, the Fifth Circuit held that dismissal was unwarranted. Although the dismissal was nominally without prejudice, the short statute of limitations for Title VII claims would have effectively prohibited the plaintiff from refiling. The Fifth Circuit held that this severe sanction was for several reasons. The attorney, not the plaintiff himself, was responsible for the delay leading to dismissal. There was no prejudice to the defendants, because they had not appeared or filed responsive pleadings. The roughly six-week delay was insignificant in absolute terms. And the trial court had not considered lesser sanctions.

The Northern District of Texas’s local-counsel rule could be criticized as a cynical protectionist measure or praised as maintaining an experienced local bar. It certainly seems fair to ask what benefit could be obtained from requiring local counsel in a case involving an attorney barred in the district who lived less than 10 miles over its border. But like any other rule applying to litigation, the wisdom of the local-counsel rule is beside the point. Attorneys must follow them or face the consequences. And though the plaintiff escaped the most severe consequence of dismissal in this case, his attorney’s failure to heed the rule caused him to incur unnecessary delay and expense in having his case decided.