Tuesday, June 12, 2012

Seventh Circuit reminds lawyers that being "even one minute late" with an e-filing can result in loss of rights

Thanks to Above the Law (via How Appealing) for this tip about a recent Easterbrook decision in which the Seventh Circuit reversed the district court's improper backdating of a litigant's late filing. The court went on to remind lawyers that with e-filing, you must turn your corners squarely; even a one minute delay can result in the forfeiture of significant rights. From ATL:

Benchslap of the Day: You Were Late for a Very Important Date, Deal with It

. . . .

In John C. Justice v. Town of Cicero, Illinois (U.S. Court of Appeals for the Seventh Circuit via How Appealing), the plaintiff sued Cicero after the town seized six unregistered guns from his business. By the time the case reached the Seventh Circuit, he had already sued and lost twice at the district level.

Easterbrook’s ruling follows Justice’s most recent appeal, which he filed three hours after the 28-day deadline elapsed. The district judge accepted the 3 a.m. electronic filing by granting a nunc pro tunc order without any explanation. He then denied the motion on the merits, saying it was a rehash of arguments already made and rejected. Justice appealed again to the Seventh Circuit, and Easterbrook took a step back in his analysis, saying the nunc pro tunc order should not have been have been given in the first place. From last week’s ruling (citations omitted):

The judge changed the records to show that the motion had been filed a day before its arrival. That is an improper use of the nunc pro tunc procedure — a point this court has made repeatedly. (Nunc pro tunc “is not a substitute for relation back. It can’t be used to revise history, but only to correct inaccurate records.”). A judge who lacks the authority to grant an extension of time, see Rule 6(b)(2), can’t achieve the same end by calling the extension a “nunc pro tunc order” and backdating a document.

Judge Easterbrook then went on to remind lawyers that computer crashes and other electronic glitches are no excuse when it comes to e-filing. A lawyer is expected to plan for those circumstances by filing early if need be.

Just as a document deposited physically in a clerk’s office is filed on that date even if mishandled by the clerk, so a document transmitted electronically to the court is filed on the date of transmission no matter what the e-filing system does in response. But Justice did not transmit his Rule 59 motion on November 22, only to have the court’s software balk; he transmitted it on November 23 and must live with the consequences.

Courts used to say that a single day’s delay can cost a litigant valuable rights. With e-filing, one hour’s or even a minute’s delay can cost a litigant valuable rights. A prudent litigant or lawyer must allow time for difficulties on the filer’s end. A crash of the lawyer’s computer, or a power outage at 11:50 PM, does not extend the deadline, even though unavailability of the court’s computer can do so under Rule 6(a)(3).

Read Easterbrook's full decision here.



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