Electronic Problems Interfering With E-Filing Is Not Excusable Neglect
(November 2009) By Lydia S. Hu, Summer Associate.
For more information, contact Paul Farquharson.
Conchita McDowell-Bonner v. D.C., No. 08-2210 (D.C. Nov. 10, 2009)
The United States District Court for the District of Columbia
declined to find excusable neglect when plaintiff's counsel failed to timely
file pleadings due to technical computer problems with the electronic-filing
system. The case was dismissed after the plaintiffs failed to defend against
three dispositive motions.
The plaintiffs originally filed the complaint pro se and
subsequently received two dispositive motions from defendant. The court directed
plaintiffs to respond no later than March 13, 2009. On that date, plaintiffs
appeared with counsel and filed a motion to extend the deadline until March 31,
2009. That motion was denied with leave to renew because counsel failed to
comply with LOCAL RULE 7(m), requiring the attorneys to discuss with opposing
counsel the anticipated non-dispositive motion.
The motion was never renewed and when March 31, 2009 passed,
defendants filed a third dispositive motion and the court ordered the plaintiffs
to respond by May 11, 2009. After May 11, 2009 passed without a response from
plaintiffs, the court dismissed the complaint. Soon afterwards, the plaintiff
filed a motion to reconsider, arguing that she had electronic and internet
troubles and was totally unaware that her filings were not received by the
court.
FEDERAL RULE OF CIVIL PROCEDURE 60(b) allows a court to
grant a party relief from an adverse judgment on the grounds of "excusable
neglect." Determining what constitutes excusable neglect is an equitable
decision and takes into account all relevant circumstances surrounding the
party's omission. One of the most important factors is whether there is fault in
the delay.
In considering whether the plaintiff demonstrated excusable
neglect, the court noted an attorney is required to affirm in writing that she
is familiar with the local rules of the United States District Court for the
District of Columbia in order to be admitted to practice. Counsel is also
required to maintain a password for electronic filing purposes, consent to
electronic service, to monitor electronic-filings, and promptly retrieve noticed
filings.
Plaintiff's counsel had been admitted to practice in the
District of Columbia for seven years; yet, counsel consistently violated the
LOCAL CIVIL RULES. For example, counsel violated LOCAL CIVIL RULE 7(m) when
seeking the extension of time to respond to the first dispositive motion. Also,
counsel failed to follow other local rules requiring attorneys to exclude
personal identifiers and redact portions of the Complaint. Finally, counsel
failed to monitor her email and failed to ensure she could adequately interface
with the electronic-filing system.
Considering that the attorney was admitted to practice in
the District of Columbia for seven years and failed to comply with multiple
rules, the court refused to find excusable neglect, denied the motion to
reconsider, and dismissed the Complaint.
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