Trials & Litigation

5th Circuit warns of 'cautionary tale for every attorney' as it refuses to revive lawsuit

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A federal appeals court has refused to reinstate a lawsuit tossed after the plaintiff’s lawyer didn’t see a filtered email notice and didn’t respond to a motion for summary judgment.

The 5th U.S. Circuit Court of Appeals at New Orleans called the case “a cautionary tale for every attorney who litigates in the era of e-filing.”

Law360 and Bloomberg Law have coverage of the Aug. 9 opinion, written by Judge James Ho.

The lawyer didn’t see any notice of the May 7, 2020, summary judgment motion because his email system sent it to a folder labeled “other.” All prior case filings had gone to his firm’s main email box.

The lawyer represented Kevin Rollins, who was suing his employer, the Home Depot, for injuries that he received while moving a bathtub. The case was filed in state court and then removed to federal court. The lawyer, Aaron Allison of Austin, Texas, agreed to receive filings through the court’s e-filing system.

Allison did not learn of the pending motion when he contacted the Home Depot attorney to discuss settlement a few days later.

The district court tossed the case after Allison failed to respond to the summary judgment motion in 14 days, the deadline to file and serve responses to any motions. Allison learned of the disposition when he contacted the Home Depot attorney again June 3 to discuss a settlement.

Allison sought relief from the judgment under Rule 59(e) of the Federal Rules of Federal Procedure. On appeal, he argued that failure to grant the motion was an abuse of discretion, and that a factual dispute bars summary judgment. He lost on both arguments.

“To be sure, we do not question the good faith of Rollins’ counsel,” the appeals court said.

But the appeals court said precedent prevents Rule 59(e) relief in such circumstances. The court cited Trevino v. City of Fort Worth, a 2019 5th Circuit case in which a lawyer’s defective antivirus software diverted court emails to a spam folder. The 5th Circuit ruled against that lawyer, who had failed to respond to a motion to dismiss.

In the Home Depot case, the 5th Circuit said Allison “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. Moreover, Rollins’ counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”

The appeals court also said Allison did not raise his argument about the factual dispute in his initial motion to reopen the judgment, and the argument is waived.

Allison told the ABA Journal that he is disappointed by the ruling.

“I think that the rules of procedure and electronic filing need to be changed,” he says.

Allison had argued that the 5th Circuit should carve out an exception to the holding in Trevino, which involved a law firm that was aware that its antiviral software was causing lawyers to miss critical filings and pleadings.

Allison says his firm had never had a problem with e-filing or with the email system. The 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, Allison says.

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, he says. The firm tried to open the email, but it had been corrupted.

Allison says that, in his opinion, the 5th Circuit’s “lawyer beware” decision implies that e-filing lawyers will have to check the docket by the dispositive motion deadline and will have to make sure motions have been filed.

Allison is conferring with his client on whether to file a motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court.

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