E-Filing: Avoiding Another Litigation Minefield
E-filing documents into court systems was supposed to make everyone’s job easier and provide more time to get a client’s legal work completed. E-filing allows the attorney to timely file up to the last minute of the day when a document is due to be filed, so consequently there would be more time to complete the preparation of legal filings. But as two recent cases have shown, perhaps attorneys should still govern themselves by an “old fashioned mindset” even when employing the new fashion of e-filing.
Peraino v. County of Winnebago, 2018 Ill. App. (2d) 170368
In Peraino, plaintiff brought a personal injury action against Winnebago County, but the County obtained summary judgment on December 2, 2016. Plaintiff wanted to move for reconsideration and that post-trial motion was due to be filed on January 3, 2017 pursuant to the statutory 30-day jurisdictional time period.
At two minutes before midnight on January 3, 2017 plaintiff’s paralegal began the process of attempting to electronically file the motion to reconsider. However, plaintiff’s paralegal had certain problems during the e-filing process and the e-filing website would not upload the motion and the motion was not considered accepted or filed by the system until 12:03 a.m. on January 4, 2017. Plaintiff thereafter moved the trial court for leave to file the motion to reconsider nunc pro tunc till January 3, 2017 but the trial court denied that motion. The trial court found that since the late filing was due only to user problems and not any technical defects in the software or court electronic filing system, the motion could not be deemed to be filed when plaintiff’s paralegal first attempted to upload it on January 3, 2017. Thus, certain State and local rules which would have deemed the motion filed when upload was first attempted were inapplicable because the fault was attributable to user error and not any fault in the court’s electronic filing system.
On appeal, the appellate court took a somewhat different approach. The appellate court first found that the trial court lacked any subject matter jurisdiction to entertain plaintiff’s motion to file its motion to reconsider nunc pro tunc. Since there was no timely post-trial motion on file by January 3, 2017, the trial court no longer had jurisdiction to entertain any type of motion. Accordingly, even if certain rules allowed a court to backdate a document upon motion as deemed filed at the time of an attempted uploading, those rules were inapplicable given the specific jurisdictional deadline of 30 days to file a post-trial motion. After 30 days, a trial court would no longer have jurisdiction to entertain a motion to backdate a document. Further, the appellate court found that even if those rules were applicable, they could not be applied where only user problems existed—“the inability of a registered user to submit a document electronically.”
The appellate court accordingly vacated the trial court’s order as entered without subject matter jurisdiction, and ordered that plaintiff’s motion to file the motion to reconsider nunc pro tunc be dismissed.
Cairone v. McHenry County College, No. 17-CV-4257 (N.D. Ill. 4/3/18)
In Cairone, plaintiff sought to bring a civil rights action against defendant. The alleged violation giving rise to the civil rights action occurred on June 3, 2015 and thus a 2-year statute of limitations on her claim expired on June 3, 2017. Since June 3, 2017 was a Saturday, under the federal rules her period continued to run until June 5, 2017 and the complaint had to be timely filed by midnight on June 5, 2017.
Plaintiff’s counsel began the e-filing process in the early evening hours of June 5, 2017, after the court’s CM/ECF helpdesk had closed. Plaintiff’s counsel had various problems with the court’s CM/ECF System when he attempted to add plaintiff as a new party. Once plaintiff’s counsel was able to add plaintiff as a new party, the CM/ECF System would not allow him to upload the complaint. Plaintiff’s counsel made another effort to file the complaint at 11:58 p.m. on June 5, 2017 but was still unable to do so. Plaintiff’s counsel again tried to file the complaint the following morning and the complaint was filed at 11:45 a.m. on June 6, 2017 without any problems. Plaintiff thereafter brought a motion for an extension of time to file the complaint because of excusable neglect and circumstances beyond plaintiff’s control.
In seeking to obtain this extension of time, plaintiff made numerous arguments but these were all rejected by the district court:
— The federal rules do not authorize courts to enlarge statutory limitation periods for filing suit;
— Equitable tolling could not provide plaintiff any relief because of her lack of diligence in waiting until the last minute to file the complaint; and
— Illinois procedural rules that might provide that the complaint was deemed filed when plaintiff first tried to upload it onto the district court’s electronic filing system were inapplicable in federal court.
The district court nonetheless granted plaintiff relief. Because of plaintiff’s counsel’s unrebutted representations that the failure to upload the complaint arose from a problem with the court’s ECF filing system and not a problem with plaintiff’s computer, the district court found that the clerk’s office could not be considered accessible at the time when plaintiff tried to upload the complaint on June 5, 2017. Under the federal rules, if the clerk’s office is inaccessible, the time for filing is extended to the first accessible day which in this case was June 6, 2017 when plaintiff was successful in uploading the complaint.
Learning Point: Peraino and Cairone illustrate the observation made by the United States Court of Appeals for the Seventh Circuit that lawyers who “wait until the last minute to comply with a deadline … are playing with fire.” Spears v. City of Indianapolis, 74 F. 3d 153, 157 (7th Cir. 1996). Plaintiff’s counsel in Cairone was lucky. His representation that the court’s ECF System failed were unrebutted. And although the court noted that it would have been nice if plaintiff’s counsel had “taken note of any error messages he received while trying to file the complaint”, the court had no reason to doubt counsel’s sworn representations. Plaintiff’s counsel in Peraino was not as fortunate as the failure to upload the motion to reconsider resulted from user error and not any problem with the court’s system. These decisions however point out that the “best practice” should be to e-file documents while an e-filing helpdesk is open so that any problem with e-filing can be addressed and corrected in order to allow the timely filing of all legal documents. Even though e-filing would conceivably allow one to file minutes before midnight, attorneys should use an old fashioned mindset –make every effort to e-file before the court or a court’s help desk closes.