State Bank of Southern Utah v. Beal (In re Beal), 19-2043 (Bankr. D. Utah March 31, 2020)
Warning that attorneys must file bankruptcy adversary proceedings before the deadline for doing so runs, lack of expertise using Court e-filing system (CM/ECF) is not an excuse for missing deadline:
State Bank of Southern Utah v. Beal (In re Beal), 19-2043 (Bankr. D. Utah March 31, 2020)
Bankruptcy Judge R. Kimball Mosier of Salt Lake City dismissed an adversary proceeding complaint that was 16 minutes late because the plaintiff’s lawyer waited to file until the last minute and then encountered problems in navigating the Court e-filing system.
The plaintiff’s lawyer made his appearance in a consumer’s chapter 7 case. He attended the first meeting of creditors and took an examination of the debtor under Bankruptcy Rule 2004. The EBT was completed nine hours before the deadline for filing complaints objecting to discharge and dischargeability.
The lawyer returned to his office to brush up a complaint he had been drafting. Intending to file the complaint by the deadline, he logged into the PACER system 20 minutes before midnight.
The story recounted in detail by Judge Mosier in his March 31 opinion reads like a lawyer’s nightmare. Having only once before filed a complaint through PACER, the lawyer soon encountered problems. PACER was rejecting his attempts to file for reasons he could not understand.
By trial and error, the lawyer finally succeeded in filing the complaint at 12:16 a.m., 16 minutes after the deadline. The lawyer filed a motion for an extension of time to file the complaint.
In his 28-page opinion, Judge Mosier demonstrated a masterful understanding of PACER and its intricacies. Interpreting the rules and case law, he refused to extend the filing deadline and dismissed the complaint.
Ordinarily in federal practice, excusable neglect is grounds for extending a missed deadline. See Bankruptcy Rule 9006(b)(1). However, excusable neglect does not apply to complaints regarding discharge and dischargeability. See Bankruptcy Rule 9006(b)(3).
To enlarge time regarding discharge and dischargeability, Rules 4004(b) and 4007(c) only permit extensions on motions filed before the deadline, with exceptions not applicable to the case at hand.
The lawyer was therefore not entitled to extend the deadline under any of the foregoing rules.
So, the lawyer argued that the clerk’s office was “inaccessible,” thus giving him more time to file under Rule 9006(a)(3) and the companion local rule.
Nope, said Judge Mosier. The PACER system was functioning properly at the time, he found as a fact. The local rule only gives slack to “a technical failure by the court.” The rules, he said, are not forgiving of “user error, such as a lack of familiarity with [PACER] that causes a filer to make missteps in the filing process or simply to progress through it more slowly than anticipated.”
As a last resort, the lawyer called on Section 105(a), the bankruptcy version of the All Writs Act.
Judge Mosier rejected the argument, saying that an enlargement of time under Section 105(a) would “represent a patent end-run around the prohibition against excusable neglect in this context.”
In his apologia pro judicium sua, Judge Mosier dismissed the late-filed complaint, saying that the Court’s CM/ECF “system may be confusing in some respects, but that is why courts around the country offer training. The Court will not accept counsel’s unfamiliarity with [the Court’s efiling system] as an excuse to vitiate the strictly-construed deadlines of Rules 4004(a) and 4007(c).”