U.S 5th Circuit holds Plaintiffs had a duty of diligence to inquire about the status of their case – emails mistakenly going to a spam folder was not excusable neglect

Trevino v City of Fort Worth, 19-10414 (U.S. 5th Cir. December 10, 2019)

This is a custodial death case brought under 42 U.S.C. § 1983.  However, the opinion is one of procedure and excusable neglect in not responding to a motion.

City police stopped Alfredo Cortez and his girlfriend Alisha Trevino for an inoperable brake light. Trevino ingested two baggies of methamphetamine that she had hidden in her pants before the officers could view her in the car. She died later that night. Plaintiffs filed suit against the City and the officers involved in Trevino’s arrest. The officers were dismissed.  The City then filed a motion to dismiss to which the Plaintiffs did not respond, citing computer difficulties in receiving court notices. After the motion was granted Plaintiffs filed a motion for new trial which was denied. Plaintiffs appealed.

Plaintiffs’ counsel failed to register with the court’s electronic filing system, in violation of local rules, which is why he did not receive the notice. The Plaintiffs also concede that the failure to file was within Plaintiffs’ counsel’s “reasonable control.”  Plaintiffs had a duty of diligence to inquire about the status of their case. The fact that the case was not on Plaintiffs’ counsel’s “radar for active cases” does not free Plaintiffs of this duty.  Failure to file a response to a motion to dismiss is not a manifest error of law or fact. Rule 60(b)(1) allows for relief from judgment for “mistake, inadvertence, surprise, or excusable neglect.” The Supreme Court has explained that the determination of what sorts of neglect will be considered excusable is “an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”  However, “[g]ross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.” In fact, a court would abuse its discretion if it were to reopen a case when the reason is one attributable solely to counsel’s carelessness.  Further, emails mistakenly going to a spam folder do not merit Rule 60(b) relief. Judgment affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Owen, and Justices Southwick and Willett.  Per curiam opinion. The attorney listed for Trevino is Jeffrey M. Wise.  The attorney listed for the City is Lynn Winter.