It could happen to anyone. But, when it happens to a lawyer, problems will follow. An email was sent to attorney Aaron Allison notifying him that a motion for summary judgment had been filed. Unknown to Allison, the email was caught in an obscure spam folder. Mr. Allison did not see the email. he did not now a motion for summary judgment had been filed. So, he did not know he needed to file a response within 14 days. His lawsuit had been removed from state court. He may not have realized he had only 14 days in which to submit a response. But, the Fifth Circuit said that did not mater.

In Rollins v. Home Depot USA, Inc., No. 20-50736 (5th Cir. 8/9/2021) Judge Ho wrote that Allison knew the MSJ deadline was May 11. He should have checked the docket online to see if a motion had been filed. But, sometimes defendants submit their motions for summary judgment early. In this case, Home Depot submitted its motion on May 7. If we follow Judge Ho’s recommendation to check the docket on May 11, the actual due date, then Mr. Allison would have learned about the filing four days late. He would have lost 4 days out of his precious 14 days to submit a response. And, if a defendant submitted his dispositive motion a week early, then the plaintiff will lose a week. Fourteen days is a very short time indeed in which to respond. That deadline will shrink and shrink as defendants realize they can take advantage of an errant email.

Defense Counsel Likely Knew

Ironically, Allison had spoken with the opposing counsel twice during the 14 days about settlement. The Defense attorney likely realized Allison was not aware of the MSJ, but said nothing.

When the plaintiff did not file a response, the trial court granted the motion for summary judgment. Mr. Allison then filed a Rule 59(e) motion to amend the judgment. The trial court rejected that motion. The Fifth circuit affirmed. The court of appeals cited Trevino v. City of of Ft. Worth, 944 F.3d 567 (5th Cir. 2019). In that case, a lawyer missed the deadline regarding a motion to dismiss. The law firm had been using antivirus software which they knew caused problems with receipt of emails. In the Trevino case, the court said the fault lay with the law firm. The Rollins court cited that opinion. Mr. Allison argued that unlike that law firm, his office had no reason to know the court’s email might be diverted.

Wrangling Software

But, Judge Ho simply found that Mr. Allison and his firm were in the best position to know whether their email was working properly. This strikes me as the comment of a judge who has never had to wrangle his own software. In reality, emails sometimes simply do not arrive, for reasons that escape scrutiny. In my experience, about once a year, an email sent to me or sent by me does not arrive at its destination, for no apparent reason. Back in 2003, I was on active duty at Ft. Sam Houston. My Army unit was in Houston, Texas. My unit would send me urgent emails with vital information for the staff at Ft. Sam Houston. My job was to make sure that information arrived at the correct staff section. I would know beyond any doubt the email had been sent. Yet, some emails would arrive within seconds. Others would take hours to arrive.

Email is not certain, for reasons that evade all but the best trained computer scientists. With this decision, the court has imposed a very harsh requirement. In the days before email, there was some protection for the law firm that could affirmatively show problems with the U.S. mail. Now, we are left to scrutinizing the court’s docket on a regular basis. And when such a situation occurs with an opposing counsel who was likely aware of the oversight and said nothing, then our judicial system sinks further into a game of gotcha.

See the decision in Rollins here.