What should you do if your firm’s e-mail account is down and you receive no e-mails for at least four days?  The Fourth Circuit says you’d better check your federal court dockets. 

In a published decision released Friday, Robinson v. Wix Filtration Corp., No. 09-1167 (4th Cir. Mar. 26, 2010), the Fourth Circuit affirmed a denial of Rule 59(e) motion to set aside entry of summary judgment against the plaintiff where the plaintiff’s attorney never received notice from the Western District of North Carolina that the summary judgment motion had been filed. 

The WDNC had previously set a deadline for dispositive motions of August 8, 2008.  On that date, defendants filed a motion for summary judgment using the court’s Electronic Case Filing ("ECF") system.  The ECF filing generated a Notice of Electronic Filing (“NEF”) that was emailed to counsel of record and, consistent with the WDNC local rules, no other service was made.  The response deadline passed without any response from plaintiff, and, not surprisingly, the District Court granted the motion on December 3, 2008.  (The District Court treated the facts as undisputed and conducted a full legal analysis of the grounds for the motion.)  Plaintiff then filed a motion under Rule 59(e) and Rule 60(b) seeking to set aside the order.  That motion was denied, and plaintiff appealed.

Plaintiff’s counsel’s explanation for the failure to respond was that his firm’s Internet domain name had expired and thus his e-mail system was down when Defendant filed the motion.  E-mails from the intervening period (at least four days) between expiration and reinstatement were lost in cyberspace, never to be found.  At oral argument in the Fourth Circuit, counsel for plaintiff stated that he knew the summary judgment deadline had passed and that he made a strategic decision not to ask defense counsel whether they had filed a motion.  Judges Duncan and Davis had little sympathy for plaintiff.  Some choice highlights from the majority opinion:

“We can hardly say that the district court abused its discretion in declining to vacate its judgment to prevent ‘manifest injustice’ given that Appellant’s failure to receive notice of the motion resulted from his counsel’s conscious choice not to take any action with respect to his computer troubles.”

“Instead, Appellant’s counsel strategically chose not to call opposing counsel after the deadline for filing dispositive motions had passed because he did not want to alert them to the court’s deadline. More amazingly, he chose not to check with the district court either. In other words, Appellant’s counsel made the affirmative decision to remain in the dark.”

And from Judge Davis’s concurring opinion:

“Our good colleague in dissent laments the possible consequences to an ‘innocent’ litigant from his counsel’s unwise and misplaced strategic choice to litigate, ostrich-like, with his head in the sand."

Judge King’s dissent argued that plaintiff should not be faulted for his counsel’s error and that because the Notice of Electronic Filing did not reach plaintiff’s counsel, service was not complete under Rule 5(e).  (Defense counsel apparently had no indication that plaintiff’s counsel did not receive the filing).

Electronic filing and service have been mandatory in the WDNC since January 1, 2006, and apparently they cannot be ignored.

[Ed. note:  Today’s entry was authored by Jennifer Van Zant, who was unable to post under her own name for technical reasons but who, in the spirit of the Fourth Circuit’s opinion, took prompt action to overcome those electronic issues and bring you this case of note.]