Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, August 14, 2021

Using a Nice Example of Persuasive Writing, the Fifth Circuit Cautions Us to Check Our Spam Folders

Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like.  When I teach upper-division students, I always include some exercise on malpractice and default judgments.  On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021).  See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021).  The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.

Judge James C. Ho started the opinion with a great “hook,” explaining:  “This is a cautionary tale for every attorney who litigates in the era of e-filing."  Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences: 

Kevin Rollins brought suit against his employer for personal injury.  The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions.  But Rollins’s counsel never saw the electronic notification of that motion.  That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor.  Nor did he check the docket  after the deadline for dispositive motions had elapsed. 

As a result, Rollins did not file an opposition to the summary judgment motion.  So the district court subsequently entered judgment against Rollins.

Rollins, __ F.4th at __, 2021 WL 3486465 at *1. 

According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot.  Id.  Rollins then sued Home Depot in state court.  In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot. 

In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.”  Id.  The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.

On May 7, Home Depot filed its motion for summary judgment.  Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’”  Id.   As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.”  Id.   

Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system.  He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.”  See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”   In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.”  Id.  The firm tried to open the email, but it had been corrupted.  Id. 

Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.”  Rollins, __ F.4th at __, 2021 WL 3486465 at *1.  On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment.  Id.  Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins.  The district court denied the motion, and Rollins appealed.

The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review.  Id. at *2.  The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.”  Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law.   Id.   

On the merits, the court began:  “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’”  Id.  Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion.  The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.”  Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings.  According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”  Id.   

In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.”  He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court.  See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”

I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion.  And, we can all watch online dockets to see if Rollins decides to move forward. 

https://lawprofessors.typepad.com/appellate_advocacy/2021/08/using-a-nice-example-of-persuasive-writing-the-fifth-circuit-cautions-us-to-check-our-spam-folders.html

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