Civil Procedure

Easterbrook Opinion References Cinderella in Case of Late-Night, Late-Filed Motion


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A judge doesn’t have the power to backdate a motion that was filed three hours too late, a federal appeals court says.

The Chicago-based 7th U.S. Circuit Court of Appeals said a judge misused the nunc pro tunc procedure by changing the records to excuse the blown deadline. The motion for reconsideration was filed at 3 a.m. Nov. 23 through the electronic filing system; the deadline was Nov. 22.

“It does not take a reference to Cinderella to show that midnight marks the end of one day and the start of another,” said the Tuesday opinion (PDF) by Judge Frank Easterbrook. “A document entered into the electronic system at 12:01 a.m. on a Thursday has been filed on Thursday, not on ‘virtual Wednesday.’ ”

“Courts used to say that a single day’s delay can cost a litigant valuable rights,” Easterbrook wrote. “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 p.m., does not extend the deadline.” Computer problems on the court’s end, however, could provide a basis for relief, Easterbrook said.

The trial judge who had allowed the motion for reconsideration went on to rule on the merits that the plaintiff’s suit was barred. The appeals court gave the plaintiff 14 days to show cause why the judge’s order refusing to reopen the litigation should not be affirmed summarily.

Hat tip to How Appealing.

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