Virtual Deadlines, Real Consequences, Court Says

     CHICAGO (CN) – The 7th Circuit advised judges Tuesday about how to handle issues that are unique to advancements in e-filing technology, such as litigants missing a filing deadline by just a few hours.
     Such was the case with John Justice, who electronically filed a motion with the court at 3 a.m. on Nov. 23, 2011. The deadline was Nov. 22.
     Justice had moved for reconsideration of a lawsuit that the Northern District of Illinois dismissed a month earlier, regarding six unregistered guns that Cicero police seized from him in 2006.
     Justice’s complaint quoted Thomas Jefferson, Patrick Henry, James Madison and other prominent historical figures to support his claims, which effectively amounted to a challenge of gun-ownership restrictions. He said the town had infringed on his Second Amendment rights as well as denying him due process.
     A lawsuit based on the same events failed before this one, in 2009.
     Though the Justice’s 2011 motion for reconsideration was technically late, U.S. District Judge Matthew Kennelly deemed it timely.
     Though he accepted the motion, he quickly denied it on the merits.
     Faced with Justice’s appeal over the October dismissal, the 7th Circuit said this maneuver could be considered untimely based on the filing of that November reconsideration motion.
     The six-page decision clarifies how judges may use “nunc pro tunc” motions.
     “Nunc pro tunc, a Latin phrase, means ‘now for then,'” Chief Judge Frank Easterbrook wrote for a three-member panel. “A judge has the power to change records so that they show what actually happened.”
     Judges use the doctrine frequently to rectify clerical errors, but Kennelly modified history in Justice’s case, rather than correcting an error.
     “A judge who lacks the authority to grant an extension of time … can’t achieve the same end by calling the extension a ‘nunc pro tunc order’ and backdating a document,” Easterbrook wrote.
     “It does not take a reference to Cinderella to show that midnight marks the end of one day and the start of another,” he added. “Electronic filing systems do extend the number of hours available for filing. Instead of having until the clerk’s office closes, litigants have until 11:59 PM. But e-filing does not increase the number of days available for filing. A document entered into the electronic system at 12:01 AM on a Thursday has been filed on Thursday, not on a ‘virtual Wednesday.'”
     E-filing systems, which have been used in federal courts for about 10 years, can raise questions like these more frequently than traditional hard-copy filing systems.
     “Courts used to say that a single day’s delay can cost a litigant valuable rights,” the decision states.
     “With e-filing, one hour’s or even a minute’s delay can cost a litigant valuable rights,” Easterbrook added. “A prudent litigant or lawyer must allow time for difficulties on the filer’s end. A crash of the lawyer’s computer, or a power outage at 11:50 PM, does not extend the deadline.”
     Noting that the parties had only submitted memoranda on the nunc pro tunc legal question, the appellate panel directed Justice to submit a briefing on the merits within two weeks.
     After calling the prospects of appellate success “sufficiently dim,” the court said it will decide later whether Cicero needs to reply to Justice’s memorandum.

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