Susan F. Kuhn, et al. v. Sulzer Orthopedics, Inc. et al., ___F.3d___, 2007 WL 2287742 (6th Cir, 2007)
Brief Summary
The court upheld the US District Court’s decision not to extend the time for the filing of an appeal by a non-party whose attorney was not aware of the date on which an order had been entered but who could have been aware if he had made use of the district court’s electronic docketing system.
Complete Summary
Susan Kuhn and her husband, Michael (collectively “Kuhn”), retained attorney Tommy Jacks to represent them in a class action against Sulzer Orthopedics, Inc. regarding injuries related to a defective orthopedic hip implant. Numerous suits against Sulzer Orthopedics were filed throughout the country and centralized in the Northern District of Ohio by the Multi-District Litigation Panel. Mr. Jacks advised Kuhn that she would get a better settlement by remaining part of the class, and Kuhn and her husband agreed, ultimately accepting $320,000 in settlement. Kuhn was also entitled to additional compensation of up to $800,000 under the settlement’s “Extraordinary Injury Fund” (“EIF”). However, because Mr. Jacks missed the deadline for filing a claim with the EIF, additional recovery was precluded.
Kuhn then retained attorney James Harris to file a legal malpractice suit against Mr. Jacks for failing to timely file the EIF claim and for alleged inadequate representation of Kuhn’s individual interests as opposed to class interests in the settlement. Because part of the malpractice case involved non-party discovery requests to Sulzer Orthopedics, a motion was filed with the MDL court to enjoin discovery. The MDL court ruled that Kuhn could pursue the malpractice claim in state court against Mr. Jacks for failing to timely file the EIF claim, but could not pursue certain other claims because this would essentially be a collateral attack on the MDL court settlement and its judgment. Id. at *1. Mr. Harris filed a motion with the MDL court specifically requesting that it issue its written order so that Kuhn could proceed with an appeal. On October 18, 2005, the court issued the order.
Under Federal Rule of Appellate Procedure 4(a)(1), Kuhn had until November 17, 2005 (30 days), to file the notice of appeal. Mr. Harris did not learn of the order until January 6, 2006, when his paralegal had checked the electronic docket and discovered the order and realized the deadline had passed. Mr. Harris filed a motion to reopen the time to file an appeal which was denied by the MDL district court based on Mr. Harris’ failure to register his email address with the court’s electronic filing system (“CM/ECF”) and failure to monitor the docket. This appeal followed. Id. at *2.
The appellate court reviewed the guidelines set forth in Federal Rule of Appellate Procedure 4(a)(6) on reopening the time to file an appeal. The rule provides that:
“The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry:
(B) the motion is filed within 180 days after the judgment or order is entered or within seven days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.”
Id. at *3. The court agreed that Kuhn had met the express conditions of the rule, and the only question on appeal was whether the district court abused its discretion in denying the request to reopen the time to file an appeal. Kuhn challenged the district court’s rationale for denying the request based on Mr. Harris’ failure to register with the CM/ECF system and monitor the docket. Id. at *4. Mr. Harris admitted that he did not register with the CM/ECF system because he did not have the necessary computer equipment to file electronic documents. Appellees argued however, that even if Mr. Harris could not file documents through the system, he still had to register with it so that he could receive e-mail notifications of court orders and other parties’ electronic filings. Mr. Harris did have an e-mail address and could receive electronic communications.
The court held that Mr. Harris was not required to register with the court’s electronic system because Kuhn’s legal malpractice case, which was filed in Texas state court, was not covered by the MDL district court’s Practice and Procedure Order, which applied only to actions originally transferred to the district court by the Judicial Panel on Multidistrict Litigation (“JPML”), “tag-along” actions transferred to the district court by the JPML, related cases filed in the district court, and related cases transferred or removed to the district court. Id. at *4.
The court concluded that the real problem was Mr. Harris’ failure to monitor the docket. Parties have an affirmative duty to monitor the docket. The court rejected Kuhn’s attempt to rely on precedent that was decided before electronic dockets were widely available for the proposition that there was no requirement to monitor the docket because to do so would bring the “excusable neglect” standard into Rule 4(A)(6). The district court had noted that the requirement to monitor the docket today could be met by an attorney sitting in front of his computer. This was even more true in a situation where Mr. Harris had taken the unusual step of asking the district court to issue its written order so that the appeal could be filed. The district court’s opinion was affirmed. Id. at *6.
Significance of Case
The court did not state that the question before it was so one-sided that a trial court decision to allow an extension of the time for appeal would have been reversed. On the other hand, the court was quite clear that additional electronic tools will at least at times impose additional electronic burdens on counsel.
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