Fifth Circuit Affirms Summary Judgment Where Plaintiff’s Lawyer Did Not Get an Electronic Notification of the Motion

In Rollins v. Home Depot USA, No. 20-50736 (5th Cir. Aug. 9, 2021), the Fifth Circuit affirms summary judgment in “a cautionary tale for every attorney who litigates in the era of e-filing.” The plaintiff’s lawyer missed the filing of a dispositive motion because “his computer’s email system placed that notification in a folder that he does not regularly monitor.”

In a personal injury case, “[t]he parties . . . agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020.” Home Depot filed its motion on May 7.  “Rollins’s counsel contends—and Home Depot does not dispute—that the notification for that filing “was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as ‘other,’ instead of the main email box where all prior filings in the case were received.” As a result, counsel did not see the electronic notification of Home Depot’s motion.”

Because counsel did not respond to the motion, “the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.” It was Home Depot’s counsel who informed him that the district court entered final judgment on June 3. “Rollins filed a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the court’s judgment against him. The district court denied the motion.”

The Fifth Circuit affirms denial of the Rule 59(e) relief. “The text of Rule 59(e) does not specify the available grounds for obtaining such relief. But our court has explained that Rule 59(e) motions ‘are for the narrow purpose of correcting manifest errors of law or fact or presenting newly discovered evidence”—not for raising arguments ‘which could, and should, have been made before the judgment issued.’”

“Rollins contends that the district court abused its discretion when it denied his Rule 59(e) motion, on the ground that the only reason his counsel did not know about Home Depot’s motion for summary judgment was due to a glitch in his email system.” But the panel holds that “[t]his argument is squarely foreclosed under our precedent” holding that failure to respond to a dispositive motion is not a “manifest error of law.”

“To be sure, we do not question the good faith of Rollins’s counsel,” but the panel holds that the failure to file was within plaintiff’s counsel’s control. “Notice of Home Depot’s motion for summary judgment was sent to the email address that Rollins’s counsel provided. Rule 5(b)(2)(E) provides for service ‘by filing [the pleading] with the court’s electronic-filing system’ and explains that ‘service is complete upon filing or sending.’ Fed. R. Civ. P. 5(b)(2)(E). That rule was satisfied here. Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot. Moreover, Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”

The plaintiff alternatively tried to get the panel to take up the merits of the district court’s summary judgment decision, but the panel holds that the argument is forfeited. “We do not ordinarily consider issues that are forfeited because they are raised for the first time on appeal.” The Fifth Circuit holds that it has discretion to decide “a pure question of law” where “our refusal to address it would result in a miscarriage of justice.” The panel notes, though, that “it must be on guard for the risk of judicial bias when it comes to discretionary practices such as addressing forfeited issues . . . . It would surely be unacceptable, for example, if courts granted motions for extension of deadlines only for prosecutors and not for criminal defendants. Addressing forfeited issues in a biased manner is no different. Courts should not selectively address forfeited arguments just because they have sympathy for a particular litigant.” The panel finds “no principled basis for addressing Rollins’s forfeited argument here.”

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