Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight

“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” 

Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023)(emphasis added).

In this case, the court’s filing deadline was at midnight on April 22^nd.  The attorney logged on to the e-filing system at 11:40 p.m.  Due to mistakes by the attorney, the pleading was filed at 12:16 a.m. on April 23^rd.  It was deemed late, and the late-filed complaint was dismissed as untimely.  There was no evidence that anyone was up at midnight and waiting to read the filing in the middle of the night.

“The Bank’s attorney… barely missed the deadline, receiving notice from the bankruptcy court’s Electronic Case Files (ECF) system that the complaint was filed at 12:16 a.m. on April 23. This was 36 minutes after [the filing attorney] entered the court’s ECF system to file the complaint,” and 16 minutes after the filing deadline.  In re Beal, 2022 WL 17661140, at *1 (10th Cir. Dec. 14, 2022).[1]

Mr. Donlon wrote that the attorney’s “electronic error forfeited the bank’s claim for almost a quarter of a million dollars.”

The filing was delayed by two technical errors. Id.  First, the ECF system did not accept dollar signs and the attorney attempted to input those characters with the monetary demand.  Second, the attorney mistakenly thought that payment of a fee was required to file the pleading. The appellate court held that these were attorney errors, not a defect in the court’s ECF system.

Mr. Donlon wrote:

The result in this case may appear hyper-technical (and even unfair). However, it is consistent with other courts’ demands for attorneys’ strict adherence to deadlines and filing procedures. Making sure you know how to use a court’s electronic filing system is a basic requirement in today’s legal environment—and reinforces another old adage: don’t wait till the last minute to do something.

That is, of course, good advice.  For example, Local Rule 102 of the District of Maryland provides that electronic filing “is only permitted in accordance with the policies and procedures established by the Court.”  See also L.R. 103.1(a); 105.1(a).  Last minute filing prior to a hearing is prohibited. L.R. 105.2(b).  The Court has published a Policies and Procedures Manual.  It states that civil filing on CM/ECF started in 2003.  Further, there is likely a duty of technological competence. See 40th State Adopts a Duty of Technological Competence – Is It a Good Idea?

Another ABA article, Daniel R. Cooper, Best Practices for Missing a Filing Deadline in Federal Court (americanbar.org)(July 11, 2018), provides a road map for an “excusable neglect” motion, citing Fed.R.Civ.P. 6(b)(1), and noting that: “Even the most sophisticated law firms with the most state-of-the-art calendaring and docketing vendors and internal practices and controls can suffer the nightmare of having a filing deadline fall through the cracks…. The Federal Rules of Civil Procedure provide equitable safeguards for an inadvertently missed deadline. But because these fail-safe provisions are equitable in nature, whether a missed deadline falls under these provisions is not always clear and is generally subject to a fact-specific inquiry by the judge.” Mr. Cooper wrote: “Excusable neglect is, at bottom, an equitable doctrine, without a precise definition in the Federal Rules.”  He cited to a four-factor test:

1. Whether the delay in filing was within the reasonable control of the movant;
2. The length of the delay and the delay’s potential impact on judicial proceedings;
3. The danger of prejudice to the non-moving party; and
4. Whether the movant acted in good faith.

West’s Bankruptcy Service Current Awareness Alert writes that the Beal case illustrates Benjamin Franklin’s saying that “you may delay, but time will not.”[2]

I realize that the “rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions [of the courts that often] go unheeded by some practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum.”   Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584-85, 374 A.2d 419, 421 (1977).  “Attorneys practicing before this court disregard the Federal Rules of Civil Procedure and Local Rules at their peril.”  Black v. Quest Diagnostics Inc., 2005 WL 8174704, at *2 (D. Md. Nov. 17, 2005).

The  “Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he [or she] files and tries a case.”  Colonial Carpets, 36 Md. App. at 584, 374 A.2d at 420–21 (1977) (emphasis added).

Further, failure to abide by court orders, deadlines, and rules of procedure may lead to dismissal. See Sua Sponte Dismissal Relying in Part on Fed.R.Civ.P. 41(b).

However, there are countervailing considerations.  Fed.R.Civ.P. 1 states that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

A Maryland Court  faced a rules-based discovery deadline and wrote:

We conclude this opinion with some general words of explanation and caution. Generally, the Maryland Rules will be applied literally because the satisfactory resolution of disputes through litigation is dependent upon the certainty and timeliness of the process. In many instances, the Rules themselves provide the framework for handling Rule violations, which often involve the exercise of discretion by a court. This is certainly true in the discovery area.

There have been instances, however, including several in reported cases, when a party did not bear the full effect of a Rule violation, especially when the violation was technical, was an excusable instance, not part of a pattern, not wilful, resulted in no prejudice to other parties, did not interfere with the orderly administration of the court’s docket, and the sanction was grossly disproportionate to the nature of the violation.

The point is that the Rules are designed to promote justice, and their literal application will generally do so. Violations will be excused, or a lesser sanction imposed, only in those rare instances in which a literal application, or a heavier sanction, denies justice. Litigation is a dispute resolution process, not a game. Ordinarily, a trial court’s exercise of discretion, including when it literally applies the Rules, will be accorded great deference and upheld.

….

With respect to various types of Rule violations, including timeliness, examples of the two sides of the spectrum are easy to state. For example, as courts move toward electronic filing, lateness may be measured in minutes, not days. If a response is filed 5 minutes late, absent prejudice, a pattern of conduct, wilful conduct, or other extenuating circumstance, one would not expect a motion for sanctions to be filed. If filed, one would expect it would be denied. If, on the other hand, a late response, in context, impacts other counsel’s abilities to represent their clients and to comply with existing orders and schedules, a motion is warranted, and one would expect it to result in appropriate relief. There is a sliding scale in between the two extremes. The facts, summarized at the beginning of this opinion, produced the result reached herein.

This opinion should not be interpreted as condoning the late filing of a response to a request for admissions or any other violation of the Rules. Balanced against the need for enforcement of the rules, however, is the dependence of litigants on the sound exercise of discretion, when permitted by the Rules, to prevent injustice resulting from an insubstantial technicality.

Gonzales v. Boas, 162 Md. App. 344, 363–65, 874 A.2d 491, 502–03 (2005), cert. denied, 388 Md. 405, 879 A.2d 1086 (2005)(emphasis added).

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UPDATE – See Samantha J. Stillo, Time’s Up: No Recourse for Untimely Filed Complaint (americanbar.org)(July 21, 2023)(“Litigation Section leaders counsel against waiting to the last minute to submit a filing.”).

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[1] The Tenth Circuit wrote: “Under the Utah Bankruptcy Court’s local rules, ‘A document filed electronically is deemed filed at the date and time stated on the Notice of Electronic Filing from the court.’ …. The problem for the Bank is that its Notice of Electronic Filing states that its complaint was filed at 12:16 a.m. on April 23.”  Beal, 2022 WL 17661140, at *2.

[2] 2023 No. 2 Bankruptcy Service Current Awareness Alert NL 10.