The Lawyer, the Lawsuit and "Excusable Neglect"

As the Utah Court of Appeals explained in a recent opinion, Kaveh and Cindy Aghdasi filed a lawsuit

against Payam Saberin and City Cab after "Saberin, a cabdriver who leased his cab from City Cab, physically attacked Kaveh Aghdasi, another cabdriver." Aghdasi v. Saberin, 2015 WL 1352420 (2015). 

The opinion does not explain what cause or causes of action the Aghdasis based their lawsuit on, but I think it is logical to assume that their cause(s) of action probably included assault and battery as defined by Utah law.  According to an opinion in an older decision by the Utah Court of Appeals, in Utah the elements of a civil cause of action for assault are:

1. The defendant acted, intending to cause harmful or offensive contact with the plaintiff, or imminent apprehension of such contact; and

2. As a result, the plaintiff was thereby put in imminent apprehension of [harm] [contact].

3. The plaintiff suffered injuries proximately caused by the defendant's actions.

Model Utah Jury Instructions 10.18 (1993) (emphasis added). If the defendant's acts of assault result in actual touching or striking of plaintiff, they constitute battery.  D.D.Z. v.

Molerway Freight Lines, Inc., 880 P.2d 1 (Utah Court of Appeals 1994).  You can, if you are interested, read more about civil assault and battery here.

Getting back to the Aghdasis’ lawsuit, the opinion says that, after they filed the suit and

[f]ollowing discovery, City Cab filed a motion for summary judgment and a supporting memorandum using the district court's electronic filing (e-filing) system. The district court received a `Return of Electronic Notification’ indicating that the Aghdasis' attorney had received the electronic notice of the motion for summary judgment via email at 2:46 p.m. on October 24, 2013. The court also received a notice confirming the attorney's receipt of the supporting memorandum at 2:49 p.m. the same day.

The Aghdasis did not respond to the motion. City Cab filed a request to submit the summary judgment motion for decision, and court records indicate that the Aghdasis' attorney received electronic notice of this request at 11:20 a.m. on December 12, 2013.

Aghdasi v. Saberin, supra.  

In a footnote, the Court of Appeals explains that, at the oral argument on the motion to set aside the summary judgment, “the Aghdasis' attorney indicated that he had received the electronic notice of the request to submit for decision on December 12 but that he did not immediately open it.” Aghdasi v. Saberin, supra. 

As Wikipedia explains, a motion for summary judgment asks the judge who has the case to grant judgment for the party filing the motion on the basis that there are “no issues of material fact” that need to be resolved at a trial.  The purpose of a trial is to resolve disputed issues of fact, so if there are no disputed issues of fact, it is appropriate for the trial judge (the “district court judge” in this case) to issue judgment as a matter of law. And that is what City Cab’s motion asked the judge to do. Aghdasi v. Saberin, supra. 

And as the Court of Appeals went on to explain, the

[district court granted the motion for summary judgment on December 13. A copy of the ruling was sent to the Aghdasis' attorney electronically on December 23. On December 24, the Aghdasis filed a 60(b) motion to set aside the summary judgment on grounds of excusable neglect. See Utah Rules of Civil Procedure 60(b). The motion was supported by the affidavit of the Aghdasis' attorney, in which he claimed that he never saw the electronic notices and was unaware of the motion for summary judgment until he received the district court's order granting it.

The attorney speculated that the motion for summary judgment and supporting memorandum must have been accidentally deleted or sent to a spam folder. The district court denied the motion, determining that the court's records demonstrated that the Aghdasis' attorney had received the motion for summary judgment and supporting memorandum and that the attorney had failed to adequately explain why he was unaware of the filings. The Aghdasis appeal.

Rule 60(b) of the Utah Rules of Civil Procedure say, among other things, that a court's granting summary judgement can be set aside for "excusable neglect."  Aghdasi v. Saberin, supra.  And in a footnote, the Court of Appeals explains, that when this court heard oral argument on the issues in the case, the Aghdasis' lawyer said that "he had received the electronic notice of the request to submit for decision on December 12 but that he did not immediately open it." Aghdasi v. Saberin, supra. 

The Court of Appeals went on to explain that, in their appeal, the Aghdasis

first assert that the district court erred in denying their Rule 60(b) motion. We review a district court's denial of a Rule 60(b) motion for abuse of discretion. Katz v. Pierce, 732 P.2d 92 (Utah Supreme Court 1986) (per curiam).  `A district court abuses its discretion only when its decision was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice . . .  [or] resulted from bias, prejudice, or malice.’ Jones v. Layton/Okland, 2009 UT 39, ¶ 27, 214 P.3d 859 (Utah Supreme Court 2009). . . .

Aghdasi v. Saberin, supra.

The Court of Appeals went on to point out that

`there is no specific legal test for excusable neglect.’ Jones v. Layton/Okland, supra.  Rather, `[t]he equitable nature of the excusable neglect determination requires that a district court be free to consider all facts it deems relevant to its decision and weigh them accordingly.’ Jones v. Layton/Okland, supra.  See also id. at ¶ 17 (`By their nature, equitable inquiries are designed to be flexible, taking into account all relevant factors in light of the particular circumstances’). Nevertheless, `excusable neglect requires some evidence of diligence in order to justify relief.’ Jones v. Layton/Okland, supra at ¶ 20.

Although we have not yet had the opportunity to consider whether excusable neglect exists where an attorney claims to have misplaced an e-filed document, `Utah courts have found no abuse of discretion in a trial court's denial of a motion to set aside a default judgment where the only excuse offered by a party for its untimely response was that the motion requiring the response was inadvertently misplaced within a counsel's office.’ Stevens v. LaVerkin City, 2008 UT App 129, 183 P.3d 1059 (Utah Court of Appeals 2008) (citing Mini Spas, Inc. v. Industrial Comm'n, 733 P.2d 130 (Utah Supreme Court 1987) (per curiam) (rejecting counsel's excuse `that the notice was “inadvertently stuck together in the [plaintiff]'s drawer”’)); see also id. ¶ 28 (the disappearance of a motion within an attorney's office did not justify setting aside a summary judgment on grounds of excusable neglect). We see little difference between the inadvertent loss or misplacement of an electronic document and the inadvertent loss or misplacement of a physical document.

Aghdasi v. Saberin, supra.

The Court of Appeals also explained that

[o]ther courts that have considered this issue have been largely unsympathetic when faced with attorneys attempting to blame failures on computer glitches. See W. Kelly Stewart & Jeffrey L. Mills, E–Filing or E–Failure: New Risks Every Litigator Should Know, For the Defense, June 2011, at 28 available at http://www.jonesday.com/files/Publication/efd9d946–2272–44 93–9bb6–312e53bb8419/Presentation/Publication Attachment/9398f37a–c4a0–4338–8a4e–35cdf2d69900/FTD–1106–StewartMills.pdf  (collecting cases relating to a variety of e-filing errors, including case where a party sought relief on grounds of excusable neglect).

For example, when the U.S. Court of Appeals for the D.C. Circuit was faced with an excusable neglect argument based on counsel's failure to receive electronic notice of the defendant's motion to dismiss, that court deemed the excuse, `an updated version of the classic “my dog ate my homework” line,’ concluding that, `[i]mperfect technology may make a better scapegoat than the family dog in today's world, but not so here.’ Fox v. American Airlines, Inc., 389 F.3d 1291 (U.S. Court of Appeals for the District of Columbia Circuit 2004) (determining that, `[r]egardless whether he received the e-mail notice,’ the plaintiffs' attorney, `remained obligated to monitor the court's docket’).

Aghdasi v. Saberin, supra.

The court then pointed out that

[i]t is clear from the court's records that the Aghdasis' attorney received the emails, even if he did not actually see or read them. The fact that the attorney then misplaced the emails either through accidental deletion or due to spam settings on his email account does not demonstrate the exercise of diligence on the part of the attorney, particularly in light of the fact that the attorney apparently misplaced at least two separate emails and admittedly neglected to read a third.

The attorney had received e-filings in connection with this case before the motion for summary judgment was filed and electronically received the request to submit and the court's order granting the summary judgment motion, but for whatever reason, he missed the emails notifying him of the summary judgment motion and memorandum in support. The attorney should have made the same effort to be aware of incoming electronic filings as he would have with paper filings.

We cannot say that the court's rejection of the Aghdasis' excusable neglect argument, under the circumstances of this case, `was against the logic of the circumstances’ or `so arbitrary and unreasonable as to shock one's sense of justice.’ See Jones v. Layton/Okland, supra.  

Aghdasi v. Saberin, supra.

Finally, it explained that the Aghdasis also argued that

City Cab's counsel violated his obligations under the Utah Standards of Professionalism and Civility by failing to notify the Aghdasis' attorney of a potential `default' summary judgment and that the district court abused its discretion by failing to address the violation. See Utah R. Jud. Admin. 14–301(16) (`Lawyers shall not cause the entry of a default without first notifying other counsel whose identity is known, unless their clients' legitimate rights could be adversely affected’). However, even assuming that City Cab's counsel violated these standards, they are not mandatory and provide no basis for the Aghdasis to challenge the court's decision.

`Our standards of professionalism and civility often promulgate guidelines that are more rigorous than those required by the Utah Rules of Civil Procedure and the Utah Code of Professional Conduct. . . .The rules of civil procedure establish minimum requirements that litigants must follow; the standards of professionalism supplement those rules with aspirational guidelines that encourage legal professionals to act with the utmost integrity at all times.’

Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, 238 P.3d 1035 (Utah Supreme Court 2010) (emphasis added).  

Aghdasi v. Saberin, supra.

And with regard to whether City Cab’s lawyer violated the standards outlined above, the Court of Appeals said, in a footnote, that

[i]t is possible that counsel for City Cab considered his obligation fulfilled when he received confirmation that the Aghdasis' counsel had received electronic notice of City Cab's request to submit the summary judgment motion for decision.

Aghdasi v. Saberin, supra.  It also went on to explain that,

[w]hile compliance with the Utah Standards of Professionalism and Civility is encouraged of all attorneys, an attorney's failure to comply is not grounds for setting aside a judgment. See Arbogast Family Trust v. River Crossings, supra, encouraging lawyers to comply with the Standards and suggesting that failure to comply may leave lawyers open `to bar complaints or other disciplinary consequences’ when that failure runs afoul of the Utah Rules of Professional Conduct).

Aghdasi v. Saberin, supra.

The Court therefore held that,

[i]n sum, the district court did not abuse its discretion in ruling that the attorney's misplacing the electronic notices did not constitute excusable neglect. We further conclude that the district court was not required to consider the Utah Standards of Professionalism and Civility in determining whether to set aside summary judgment. Accordingly, we affirm.

Aghdasi v. Saberin, supra.