Civil Society

January 8, 2008, 9:19 am
A Litigator’s Nightmare: Late Filing Costs Client $1 Million
Posted by Peter Lattman
It’s a litigator’s worst dream — costing your client serious money by missing a filing deadline.

That nightmare was a reality for MoFo and another small SoCal firm, which appears to have cost its client Toshiba America $1 million when it was one-minute late — 1 minute! — in filing a motion for attorneys fees. (The nightmare was first reported by the Daily Journal.) A judgment in favor of MoFo’s client was entered on Sept. 26, giving Toshiba’s attorneys 14 days - until Oct. 10 - to file their attorneys-fees motion. Here are the relevant paragraphs straight from Judge Cormac Carney’s opinion. For anyone who has stared in the face of a filing deadline, this might make your choke on your Cheerios:

Here, [Toshiba’s] purported reason for its delay is that its courier was caught in traffic at 3:30 in the afternoon in Santa Ana, California. Mr. Mersel, attorney for [Toshiba], asserts that he waited until 3:14 p.m. on the last day of the filing period to deliver the motion to Morrison & Foerster’s regular courier service. Mr. Mersel asserts that although he was aware that the filing deadline was 4:00 p.m., he had “never had a problem with getting papers filed by 4:00 p.m. when delivering them to the attorney service” forty-five minutes in advance. The courier, Mr. Moskus, swiftly responded to Mr. Mersel’s request, leaving on his motorcycle for the courthouse at approximately 3:30 p.m. Unfortunately, Mr. Moskus encountered “unusually heavy traffic” and had to “wait at the railroad crossing on Grand Avenue for a long train to pass.” Consequently, Mr. Moskus arrived at the Courthouse after the office had closed and Mr. Mersel was unable to file the motion until the following day, on October 11, 2007.

These circumstances, however regrettable, do not meet the standard for “excusable neglect.” Although the delay was not lengthy and it does not appear that [defendant] was prejudiced by it, the reason for the delay was entirely within [Toshiba’s] control and [Toshiba] has not offered a good faith reason for the delay.

Concluded the judge: “[T]he entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time.”

The Law Blog contacted Mark Mersel, who left MoFo for Bryan Cave last week. He responded in an email that “the client has asked us not to comment.” Dean Zipser, MoFo’s Orange County managing partner who oversaw the litigation, did not respond to a request of comment.