Fourth Circuit: Email, ECF, and Domain Name Woes do not Excuse Failure to Respond to Summary Judgment Motion — Robinson v. Wix Filtration

[Post by Venkat]

Robinson v. Wix Filtration Corp. LLC, 4th Cir. (Mar. 26, 2010) [scribd]

The Fourth Circuit recently held that the district court properly granted summary judgment in favor of a defendant, and rejected plaintiff’s argument that counsel’s failure to respond to a defense motion for summary judgment was excusable due to email, malware, and domain name issues.

As described by the court, plaintiff’s counsel “was afflicted by a malware virus and . . . his counsel’s firm’s domain name had temporarily expired when the motion for summary judgment was filed.” Counsel re-registered the domain name but the “e-mail accounts associated with the domain name were ‘blacklisted’ causing further e-mail problems.”

The court found that plaintiff’s failure to receive notice of the motion “resulted from counsel’s conscious choice not to take any action with respect to his computer troubles.” In the words of the court: “counsel made the affirmative decision to remain in the dark.” Finding that a client must bear the consequences of his or her attorney’s conduct, the court found that it was not an abuse of discretion for the trial court to refuse to set aside the judgment. The court found that plaintiff was not entitled to relief under either Rule 59(e) or 60(b).

One judge concurred, finding that the dismissal was a result of “counsel’s unwise and misplaced strategic choice to litigate, ostrich-like, with his head in the sand.” The concurring judge noted critically (in a footnote) that periodically checking the CM/ECF docketing system “simply was not a part of [counsel’s] practice.”

Judge King filed a spirited dissent, among other things, arguing that the Fourth Circuit’s decision creates a “duty to monitor,” and that the party should not in this case made to bear the consequences of counsel’s actions. Interestingly, Judge King also argues that the exception to the rule (taken for granted as a matter of practice in many ECF jurisdictions) that ECF filing constitutes service should come into play. The dissenting opinion argues that once defense counsel became aware that plaintiff’s counsel had email issues, defense counsel should have sent a paper copy of the motion in order to complete service. (The rules provide that ECF filing “is not effective if the serving party learns that [the Notice of Electronic Filing ] . . . did not reach the intended recipient,” but by the time the defendant had notice of the other side’s email problems, it was pretty much too late. And plaintiff’s counsel should have probably checked the docket anyway, to see if a dispositive motion was filed when the deadline came and went.) Judge King also notes that imposing a “duty to monitor” will result in additional costs (in the form of PACER fees) which will fall on the shoulders of clients.


It’s tough to not be sympathetic to plaintiff and to counsel for plaintiff. Everyone will have an email gaffe at some point in their career. (I’m not sure the failure to check the docket is as excusable.) That said, courts are not very tolerant of arguments that counsel did not respond to a motion or a deadline due to a failure to receive electronic notice. The “spam filter ate my CM/ECF notice” is often offered as an argument in these situations, but this argument typically does not get a lot of mileage. (See Shuey v. Schwab discussed in this post (court remands for consideration of the merits) and the other cases mentioned there.)

(h/t ABA Journal: “Lawyer’s Computer Virus Doesn’t Excuse Missed Dismissal Motion, 4th Circuit Says“)