The Spam Filter ate my cm/ecf Notice?
The argument that "I didn't respond to the motion because I didn't receive notice that the motion was filed because the notice was mistakenly routed to my spam folder" to me sounds like a crazy one to make, but people make it all the time. Maybe I'm wrong? Maybe I'll be singing a different tune when it happens to me!
Either way, we're seeing a rise in "technology glitch" excuses, and the bulk of them have not been successful. Most courts have good bs meters and are easily able to sift through and figure out when a second chance is warranted and when one is not. The case du jour is Shuey v. Schwab, 2008 U.S. Dist. LEXIS 97586 (M.D. Pa. Dec. 2, 2008). Here, Defendants filed a Motion to Dismiss. Plaintiffs did not respond by the deadline. The court sent a follow up notice asking for a response. None was filed. The court granted the Motion. Plaintiffs moved for reconsideration. Was the court sympathetic? Take a guess . . . .
Here was how the court characterized the argument of plaintiffs:
I've said it before, and I'll say it again. It makes sense to independently check the pacer/ecf docket on your cases periodically. Everyone has email issues from time to time.Plaintiffs argue that reconsideration is necessary to prevent manifest injustice because their complaint presents viable claims and their failure to respond to the Court's August 21 Order was the result of a "technology glitch." (Pl.'s Mem. of Law in Supp. of Mot. 1, 3, Doc. 14.) Plaintiffs' counsel explains that an electronic mail (email) notification of the filing of the Court's August 21 Order was mistakenly tagged as "spam" and not delivered to counsel's email inbox. (Id. at 1.) This mistake was not noticed, counsel further explains, because a senior paralegal was on vacation and a part-time information technology consultant retained by his office who may have detected the problem was unavailable. (Id. at 1-2.)