Photo of Stephen McConnell

Luddite.  Technophobe.  Fogey.  Fossil. Geezer.  We’ve been called all of those.  We plead guilty.  We prefer matches to lighters, manual transmission to automatic, fountain pens to uniballs, and wind-up watches to quartz.  We refuse to (that is, cannot) redline documents.  When it comes to computers, we are an easily confused fogey.  We leave the court’s electronic case filing system, charmingly known as ECF, to our secretary.  But at least we have someone attend to ECF.  Not doing so, it turns out, can be fatal.

The case of Freeman v. Wyeth, 2014 U.S. App. LEXIS 15504 (8th Cir. August 13, 2014) is a cautionary tale.  Woe unto those lawyers who resist or ignore the ECF system.  The plaintiff sued Wyeth in New York state court, alleging that she developed breast cancer after using hormone therapy medication.  We don’t know whether New York has any sort of electronic court filing system.  But it doesn’t matter, because Wyeth removed the case to the federal court in the Southern District of New York.  Then the case was transferred to the MDL in the Eastern District of Arkansas.

The clerk for the Eastern District of Arkansas filed a memorandum regarding the MDL’s use of the ECF system.  The court made it clear that “All counsel are directed to register, here and now.”  The plaintiff lawyer in Freeman did not pay attention to this order, and that ended up being a Big Problem.  Between May 13, 2009, and November 16, 2012, nothing was posted to Freeman’s individual docket.  Then, on November 16, 2012, the district court issued an order designating Freeman’s case for discovery.  Via the ECF, the court instructed Freeman to provide updated medical authorizations to Wyeth within three weeks and warned her that “[f]ailure to do so may result in dismissal for failure to prosecute.”

Time goes by.  Picture pages falling from a calendar, scattered in the wind.  Picture a lonely, ignored ECF system, staying home with no company, eating a sadness bowl of ice cream, occasionally glancing at a silent phone.  Picture a plaintiff who did nothing to comply with the court order, unaware that her case was about to get thrown away like a broken spork.

On January 8, 2013, Wyeth moved to dismiss Freeman’s case because she had not provided the medical authorizations per the district court’s instructions.  The district court granted the motion on January 28, 2013.  Now the camera pans up over the courthouse.  It looks like an eerily calm fortress. We hear the door clanging shut.  An ice cream truck (clearly, there is some sort of theme, coda, trope, motif at work here) rolls by, playing a tinny version of Eric Clapton’s “Forever Man.”  Somewhere, a big dog barks.

Nearly nine months later, Freeman’s attorney filed a Rule 60(b)(1) motion to set aside the dismissal.  What’s the hurry?  He represented that he had “monitored the case, including the time period following its transfer to the Eastern District.”  That monitoring somehow did not result in his registering for the ECF system until October 22, 2013, which also happens to be the day he filed his motion to vacate the dismissal order.  The district court was unmoved.  That is, the court denied the motion to set aside the judgment.

The action shifts to the Eighth Circuit Court of Appeals.  It reviews a denial of a Rule 60(b) for abuse of discretion.  Things are looking bleak for our monitoring-but-non-ECF-ing plaintiff attorney.  Under Rule 60(b)(1), a court can set aside a judgment entered because of a party’s “excusable neglect.”  Do we have that here?  Neither the district nor appellate court thought so.  It is true that a default judgment is hard cheese (sticking with our dairy product imagery).  But it is also true that “[a]dministering cases in multidistrict litigation is different from administering cases on a routine docket.”  Id. at *6.  To encourage efficiency, “MDL courts must be given greater discretion to organize, coordinate and adjudicate its proceedings, including the dismissal of cases for failure to comply with its orders.”   Id.

And it is not as if the dismissal was a complete surprise.  The district court’s order designating discovery in Freeman’s case, dated November 16, 2012, warned that failure to provide Wyeth with updated medical authorizations “may result in dismissal for failure to prosecute.”  Except, that would be a surprise if one declined to sign up for the ECF.  D’oh!  Now we know what ECF really stands for:  Excuses Cannot Fool the court.

The Eighth Circuit was not entirely unsympathetic. It acknowledged a preference for “merits dispositions over default judgments.”  Id. at *7.  Still, “that interest must be weighed against the unique problems an MDL judge faces, especially when the MDL litigation involves hundreds of attorneys representing thousands of clients.  The MDL judge must be given “greater discretion” to create and enforce deadlines in order to administrate the litigation effectively.” Id. at *8.  There was no “exceptional circumstance” supporting the Rule 60(b)(1) motion, the district court did not abuse its discretion, and the Freeman case was consigned to the dustbin of history.  Blowing off the ECF system ended up being an extremely costly folly.

Now picture a corner office in a sand-colored Philly high-rise. The walls have pictures of canyons and mountains.  The desk overflows with slip opinions and books – some authored by the very occupant of the office!  He must be an extremely clever fellow.  And so he is.  The office gives off an aura of scholarly rigor.  The Freeman opinion is held up to the light, and then put down on the desk.  We now see Bexis.  He’s smiling.  The Eight Circuit flushing of the case pleases him.  Suddenly he gets up.  The computer screen stares up at him, expectantly.  But it can wait.  (Though not too long.)  Bexis is headed down to the Wawa for ice cream. An Espresso Chocolate Fudge would be nice.