Spam Filter Excuse for Missing a Deadline Flies in the Northern District of Illinois — Pace et al. vs. AIG

[Post by Venkat]

Pace et al. vs. AIG, 8 C 945 (N.D. Ill.; Nov. 1, 2010)

As the court notes in this case, ‘I missed a deadline because I did not receive electronic notice of a filing’ is becoming the “modern [lawyer’s] version of the classic ‘my dog ate my homework’ line.”

The court granted AIG’s motion for summary judgment on March 30, 2010. The notice of appeal would have been due on April 29, 2010. After the due date, on May 27, 2010, Appellants moved for an extension of the deadline to file a notice of appeal. Initially, they argued that they never received a copy of the court’s March 30, 2010 order, but they wisely changed course and blamed it on their overzealous spam filter.

Ultimately, the court grants the motion and extends the deadline, even though six lawyers were listed as counsel on the case, and a local rule requires local counsel to be responsible for receiving notices and notifying “the designating attorney of their receipt and contents.” In the process of granting the extension, the court beats up on counsel for appellants, noting that “[t]here can be no doubt that Appellants are guilty of neglect in this case . . . ” The court runs through the numerous other cases where courts have rejected the spam filter excuse, but finds that in many of those cases, the failure to act on an e-filed document was part of an overall pattern of lack of diligence or lack of credibility on the part of the lawyer who offered this excuse:

in the cases where courts have held attorneys accountable for failing to monitor the docket, the attorneys’ neglect far surpasses the neglect conceded in this case. Unlike here, the cases cited by AIG involve situations where an attorney’s malfunctioning e-mail is just one example of the attorney’s overall lack of diligence. See Fox v. American Airlines, Inc., 389 F.3d 1291, 1295, 363 U.S. App. D.C. 459 (D.C. Cir. 2004) (affirming denial of plaintiffs’ Rule 59(e) motion to vacate dismissal of amended complaint where counsel claimed that he never received electronic notice of defendant’s second motion to dismiss even though his later filing repeatedly referred to a pending motion to dismiss and his failure to receive a timely answer to the amended complaint should have aroused his suspicion and prompted him to check the docket); Tobin v. Granite Gaming Group II, LLC, No. 2:07-CV-577-BES-PAL, 2008 U.S. Dist. LEXIS 20906, 2008 WL 723337 (D. Nev. Mar. 17, 2008) (discounting counsel’s spam filter excuse where she repeatedly failed to comply with court orders, discovery obligations, and federal and local rules and routinely failed to appear in court); In re Philbert, 340 Br. 886, 891 (Bkrtcy. N.D. Ind. 2006) (rejecting spam filter excuse where counsel failed to show up for hearing on his motion to stay because “counsel knew he was initiating proceedings that had to be dealt with expeditiously,” selected the deadlines for objections to his motion, and should have expected imminent activity in the case). Additionally, in some of the cases cited by AIG, courts rejected excuses like Appellants out of disbelief. See Moore v. U.S., No. S 04-0423 FCD JFM, 2005 WL 1984745, at *3 (E.D. Cal. Aug. 17, 2005), rev’d, 262 Fed.Appx. 828 (7th Cir. 2008) (rejecting counsel’s spam filter excuse where “serious questions cast doubt on his explanation” and the court of appeals later found that counsel’s overall non-responsiveness amounted to gross negligence); Tobin, 2008 U.S. Dist. LEXIS 20906, 2008 WL 723337, at *10 (“Even if the Court were to accept this explanation regarding the spam filter, which it does not, Plaintiff’s counsel was clearly on notice that motions were pending before this Court . . .”). Unlike these cases, the Court has no reason to doubt the veracity of counsel’s explanation here, which is supported by an affidavit and evidence from his firm’s information technology manager.

Related post: Spam Filter Ate My Electronic Filing Notice” Plaintiffs Get Another Chance — Shuey v. Schwab