A Cautionary Tale of E-Filing
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].
“This is a cautionary tale for every attorney who litigates in the era of e-filing.”
So begins the Fifth Circuit opinion by James Ho, issued August 9, 2021, in the case of Rollins v. Home Depot. Home Depot moved for summary judgment right before the deadline for dispositive motions. The plaintiff’s lawyer’s law firm email system placed the notification of the filing in a folder that the lawyer did not regularly monitor. All other court notice emails had gone to the main email box, which was regularly monitored. For reasons unknown, the law firm system placed this one notice in a different folder. The lawyer did not see the motion for summary judgment and did not respond to it. The trial court therefore granted the motion.
The lawyer lost a motion to alter or amend under FRCP 59(3), and the Fifth Circuit affirmed. The Fifth Circuit pointed out that the motion was filed at the appropriate time—prior to the deadline for dispositive motions. The court was not swayed by the fact that the parties had been in settlement negotiations after the filing of the motion, and the lawyer who filed the summary judgment motion conveniently failed to mention the pending motion during the ongoing discussions. The email problem came from the plaintiff’s attorney’s email system, and the attorney failed to check the court docket. There was thus no manifest error in refusing to alter or amend the judgment.
This is indeed a warning for attorneys who rely on emailed court notices. Don’t. Instead, check the court docket, because if you miss a response date, that failure will likely not be forgiven, at least not in the Fifth Circuit.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at [email protected].
Senior Vice President and Litigation Director, Institute for Justice
Dana Berliner serves as Senior Vice President and Litigation Director at the Institute for Justice, where she has worked as a lawyer since 1994.
The focus of Dana’s litigation at IJ has been property rights. She successfully represented the Community Youth Athletic Center, a boxing gym and mentoring program for at-risk youth, which challenged the city of National City’s authorization of taking the CYAC’s property for private development; the California Court of Appeal ruled in 2013 that the authorization of eminent domain was invalid and that National City had violated California’s Public Records Act. Dana also represented the home and business owners in Norwood, Ohio, who, on July 26, 2006, secured a unanimous ruling from the Ohio Supreme Court that the city could not take their property for a privately owned shopping mall and “lifestyle center.” Along with co-counsel Scott Bullock, she represented the homeowners in Kelo v. New London, in which the U.S. Supreme Court ruled that cities could condemn property because other uses may produce an increase in tax dollars and jobs. Dana, along with many others at IJ, worked to turn the nationwide outrage caused by the decision into new state statutes, constitutions and judicial decisions that cut back on eminent domain abuse. She secured a ruling that the Village of Port Chester, N.Y., violated due process in its use of eminent domain to secure waterfront property. Since 2008, Dana has been recognized every year as a “Best Lawyer” in eminent domain and condemnation law by the publication Best Lawyers in America.
On issues of free speech and economic liberty, Dana successfully defended Carla Main and Encounter Books, who wrote and published a book about eminent domain abuse in Texas and across the country, against a defamation suit brought by a developer who stood to receive property taken by eminent domain. She secured a victory in favor of two New Orleans entrepreneurs in a federal First Amendment challenge to the city of New Orleans’ ban on sidewalk book vending. As trial counsel, Dana also secured a ruling that the Nevada Transportation Services Authority violated the rights of several would-be limousine entrepreneurs by subjecting them to an onerous and arbitrary licensing process that gave undue power to existing companies opposing competition. And she successfully represented an aspiring teacher of African hair braiding in Mississippi, as well as two of her students, challenging restrictions on learning and teaching African hair braiding in Mississippi.
In 2012, Dana became IJ’s Litigation Director. She now oversees all of IJ’s litigation, helping other attorneys craft both their major legal theories and their day-to-day litigation strategies. And she helps to set the litigation directions that IJ will take. In 2016, Dana began her role as IJ’s Senior Vice President.
Dana authored Opening the Floodgates: Eminent Domain Abuse in the Post-Kelo World, a report on the use and threatened use of eminent domain for private development in the year since the Kelo decision. Dana also authored Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain, the first-ever nationwide study on the abuse of eminent domain, released in 2003.
Dana has been quoted in The New York Times, USA Today, Wall Street Journal, NPR and The Washington Post as well as on various radio and television broadcasts, including 60 Minutes.
Dana received her law and undergraduate degrees from Yale University where she was a member of the Yale Law Journal and represented clients through the legal services program. After law school, she clerked for Judge Jerry Smith on the 5th U.S. Circuit Court of Appeals.
Dana Berliner is a member of the DC and Pennsylvania bars.