Some tasks are too complex for lawyers and should be performed by paralegals.

- Rochelle Quick Take

View Rochelle Summary
Case Type:
Case Status:
21-4124 (10th Circuit, Dec 14,2022) Not Published
The U.S. Court of Appeals for the Tenth Circuit (Circuit) affirmed the order of the U.S. District Court for the District of Utah (DC) that itself affirmed the denial of a motion to extend time to file a complaint objecting to discharge and/or dischargeability by the U.S. Bankruptcy Court for the District of Utah (BC), as the lawyer had filed the complaint roughly 16 minutes after the deadline for doing so (and before the motion to extend was ever filed) due to their unfamiliarity with rather than "any defects in the court’s ECF system," the former, unlike defective tech, ground for relief.
Procedural context:
As the deadline to file approached, the lawyer for a creditor who had filed a complaint only once before on PACER confronted a series of technical obstacles entirely related to his lack of experience with the system that effectuated the filing on 12:16 a.m., 16 minutes after the deadline. The lawyer filed a motion for an extension of time to file the complaint. The attorney claimed that PACER malfunctioned but the clerk's office was "inaccessible," giving him more time to file under Rule 9006(a)(3) and its local analogue, because otherwise, under Rule 9006(b)(3), excusable neglect does not apply to complaints regarding discharge and dischargeability and, under Rules 4004(b) and 4007(c), extensions can only be granted if sought by motions filed before the deadline, aside from some inapposite exceptions. The trustee filed a cross motion to dismiss the complaint. Following a hearing with witnesses from the clerk’s office, the BC found that PACER was functioning properly at the time, and therefore denied the extension motion and dismissed the complaint. As this decision implied, as a novice PACER user, the attorney should have filed papers during regular business hours; at such times, someone would have been available to help him. The DC affirmed. The creditor timely appealed.
A creditor held a $240,000 judgment against a chapter 7 debtor. The creditor's counsel scheduled the debtor’s deposition on the last day for filing a nondischargeability complaint; the deposition ended nine hours before the midnight deadline for filing the dischargeability complaint. While lawyer had begun drafting the complaint before the deposition, the lawyer only logged on to the PACER system to file the revised complaint 20 minutes before the midnight deadline.
Harris L. Hartz; Robert E. Bacharach; and Nancy Moritz

ABI Membership is required to access the full summary. Please Sign In using your ABI Member credentials. Not a Member yet? Join ABI now - it is absolutely worth it!

About us in numbers

3586 in the system

3470 Summarized

8 Being Processed