What to do when your summary judgment motion goes missing in federal court

In response to “When Bloggers irritate judges” several lawyers raised an unexpected series of related concerns. Put broadly, their overarching concern is expressed by this question: What does a federal practitioner do when the lawyer has submitted a motion (like a motion for summary judgment), months go by and the lawyer hears nothing?  In this post, I hope to address this question.

  1. I know about waiting for a decision on a motion for summary judgment.  In the mid-1970s, our little law firm received a one line ruling from a state judge denying our motion for summary judgment. The judge wrote that a material fact was in dispute. He provided no other explanation. Our motion had been under advisement (“submitted”) for five years. There is no epithet in the otherwise colorful English language that covers such a ruling. So, I truly understand the concern.
  2. Focusing only on the federal courts, and keying upon our obsession with computers, the first point to appreciate is that there are computer systems in place to keep federal judges advised of how long their motions have been under advisement. The CM/ECF system, discussed in other posts, has been adopted by all federal courts. That system is able to produce computer runs of “motion lists” upon demand showing precisely what motions are pending and for how long. In my chambers, that list is run weekly and distributed to each of my law clerks. More formally, there is something called the Civil Justice Reform Act report. Every six months (October 1 and April 1) every judge must submit a report to Washington that becomes publicly available. Among other things, the judge must report on whether any motion has been under submission more than six months. No judge likes being on this “report of shame” and you can bet internally the judge and his or her staff are trying to resolve your motion before being required to report it. Finally, many courts have adopted internal Guidelines for resolving motions on a timely basis. See here for ours. I try hard to resolve summary judgment motions within 60 days of the ripe date.  In short, it is very doubtful that your motion has been lost or forgotten.
  3. No federal judge that I know of would ever punish a litigant or lawyer because a concern about delay was respectfully voiced. The judge might be grumpy (read “embarrassed”), but you won’t be “punished.” However, you should always let opposing counsel know of any action that you might take when inquiring about delay and you should ask opposing counsel to participate with you as you seek status information.
  4. While some judges are prickly about such things, many judges want you to call with a concern. For example, I want you to call my judicial assistant (Kris) if you have a concern. She will get you to the law clerk assigned your case. It’s always best to have the other lawyer on the line when you do. Once you get to my clerk, frankly tell the clerk about your concern. They are experienced lawyers and they will get you the information you need.
  5. If you aren’t familiar with whether the judge is OK with contacting his or her chambers informally, read the court’s web site and look for a section detailing the judge’s practices. Sometimes, judges put information on those sites detailing how, and when, to contact the judge with concerns.
  6. If you don’t know the judge’s preferences and can’t seem to find that out on your own, seek the counsel of other bar members. Most federal courts have a committee of lawyers (called the “Federal Practice Committee” or “Library Committee” or the like) who regularly practice in federal court. The committee advises judges on a variety of matters related to federal practice. Call the chair or a member of the committee and ask him or her for advice about contacting the judge. You can call the clerk of court to get a list of the committee members, if you can’t find that information on the web site. See here for ours.
  7. If everything else fails and you remain uncertain about whether you can informally contact the judge on such matters, file a motion for a telephonic status conference setting forth your concerns in the motion. At such a status conference, you can frankly and respectfully address your concerns to the judge with opposing counsel present. In a related vein, if a magistrate judge schedules your case for the Article III judge, you may want to direct that motion to the MJ. Most magistrate judges have quick and easy access to their Article III judges and can informally obtain information regarding the status of a motion.
  8. When should you get really concerned? If the judge has not decided your motion six months after it is ripe, that’s the time to become really concerned. “Ripe” dates are typically measured from the date the last pleading related to your motion is filed, and not the date of your motion. For example, if there is a SJ motion, brief and affidavits, followed by a responsive brief and affidavits, and, finally, the filing of a reply brief, the SJ motion becomes ripe with the filing of the reply brief. So, six months after that date you have a particularized reason for concern based upon the six months deadline for reporting under CJRA.  Obviously, if the failure to resolve a motion is screwing up a progression order, that’s another red flag. Now, there is a caveat. Some motions are exquisitely complex and may require more time. That should be apparent to you. In those circumstances, you can only “play it by ear” when assessing whether too much time has passed.
  9. One final thought. Ask yourself whether you really need to know the status of your motion. If you don’t really need to know it (but you are a worrier and compulsive like I am), stifle yourself, have a drink and do nothing. If you really do need to know (like the example that Vince gave in his comment or the client is breathing down your neck or a deal needs to close, etc.,), then go right ahead and inquire about the status of your motion.

I hope this helps.

RGK

22 responses

  1. I’m a career law clerk and think this post contains excellent advice and probably applies to most district courts. I hope your readers find it helpful – though I know their perspective is much different than that of court employees. I’d like to add that with the Iqbal and Twombly decisions, we are seeing many more motions to dismiss and for judgment on the pleadings early on in cases, including motions directed to affirmative defenses. This is definitely slowing things down where I work. Also, sometimes a judge gets hit with a number of particularly difficult motions at once, and when that happens, those motions take extra time and simply must be prioritized and addressed along with cases coming up for trial, civil and criminal. I work hard and in the past have sometimes been completely caught up, but currently am farther behind than I’m comfortable with. That said, there are judges who work harder than others, so I know there aren’t good excuses sometimes and I’m sure that must be exceedingly frustrating. At a federal practice seminar last year, one experienced and well-respected attorney commented that any ruling would be better than none, and there were a lot of murmurs of agreement in the audience.

  2. Dear Dazed and Confused,

    My career law clerks, Jan and Jim, never admit to being dazed and confused. They imply that I suffer from that malady, however.

    Your statement that lawyers simply want decisions, good, bad or in-between, is very important and one which we trial court folks should keep firmly in mind. That said, no federal judge wants to do a trial only to be told that the plaintiff can’t (and didn’t) meet his or her burden of proof when the Court of Appeals looks at it. Recognizing that I am not the most liberal guy in the world, I still remember, with pain, trying a civil RICO case against a bank where the facts were very bad for the bank–Comptroller entered a cease and desist order, correspondent bank separately alleged fraud, bank officials federally indicated and convicted, operator of the “enterprise” federally charged and convicted, etc. Plaintiffs were all salt of the earth farmers and they were represented by first rate counsel–one of whom had clerked on the Court of Appeals–who normally represented defendants in such matters. Jury came back for the plaintiffs, but the Circuit said “nope.” Message from the Circuit–I should’a pitched the RICO case on SJ. Huge amount of time and money wasted for everyone. So, the tension to get stuff out fast while avoiding “unnecessary” trials, which in turn waste even more time, is a real one that lawyers may not fully appreciate.

    I think you would agree that what we are talking about is not a “poor us” story. We have good gigs, and we know it. What we are doing, however, is endeavoring to paint a realistic picture of why we sometimes appear slow when dealing with motions to dismiss and for summary judgment.

    Thanks for taking the time to write. All the best.

    RGK

  3. I recognize that my comment is off topic, but as a criminal AUSA who watched as a colleague waiting nearly one year for a bench trial verdict (guilty — eventually), I have been frustrated by our inability to address delays in the administration of criminal justice. I know my example is extreme but the issue is real.

    In one of my own cases, a criminal defendant who had been released pending appeal sat at home for over three years while the circuit court read and re-read a Supreme Court opinion reversing the circuit court’s order invalidating a search warrant. After two years, on order of the district court (I’m not stupid; I got cover), I sent a letter to the circuit inquiring about the case. No response. By the time the circuit court issued the mandate, the defendant had been on supervision so long, the district court declined to send him to prison, sentencing him to time served. Unfortunately, the Speedy Trial Act doesn’t prevent all delays on the criminal side.

  4. I totally agree this is not a “poor us” story! I’m grateful for my gig every day. Your point about the tension between getting stuff out fast and avoiding unnecessary trials is a good one.

  5. Dear Thumb twiddler,

    Both of your examples make me sick to my ever expanding paunch. I don’t know what to say to those examples except I really hope they are tiny exceptions to the general rule. I sure hope that didn’t happen in the 8th Circuit–I would be very surprised if it did.

    All the best.

    RGK

  6. Funny that delays should come up on your blog the same day that I came across the following story. A man in St. Louis was free on bond for 13 years during which a criminal appeal was not resolved in his favor but he was never taken into custody to serve his sentence. He was arrested by the Marshals years later while leading a exemplary life. The story is in the Riverfront Times.

  7. Every six months (October 1 and April 1) every judge must submit a report to Washington….

    On International Day for the Elderly and on April Fool’s Day, the report goes in.

    Hmm….

    Eric Hines

  8. Dear thumb twiddler,

    A far more serious problem is the delay of AUSA’ s who sit on cases for years, defendants quit their drug conspiracies, get married, have kids, go to college, get a nice job, leave the drug life completely behind and then get indicted years latter by a AUSA who sat on their rear end for years. Although this does not happen often it happens far more frequently than a trial judge sitting on a ruling.

  9. Ahh, CJRA time. I have vivid memories of Marches and Octobers from my law clerking days. As a clerk for a couple magistrate judges, that was the time we got inundated with calls from district judges to ask about the status of report & recommendations.

    I agree 100% with your advice about calling chambers. I was very ambivalent about such calls as a clerk — my judges were both outstanding and eminently fair people, but it was certainly intimidating to pass the message along. At the same time, I recognized the attorneys’ (and probably moreso their clients’) concerns and found it could act as a pretty effective reminder of an outstanding motion. At some point I began to keep a list of the outstanding motions and remind my judges of them every month or two, regardless of CJRA time. I could never quite tell how they felt about it…

    Watching the interplay between the drives to issue a quick decision and a thoughtful decision was always fascinating — we had great judges in both districts who fell on both sides of the divide and of course some who straddled it gracefully. If nothing else, one gets tired of staring at the same decision after awhile…

  10. Northern District of Illinois’ attempt at a solution to the problem of cases that seem to have gotten lost. I’ve never tried it, and in some cases it would be obvious who wanted a ruling and who couldn’t care less. It was enough of a problem that the rules committee promulgated this rule.

    LR78.5. Motions: Request for Decision; Request for Status Report

    Any party may on notice provided for by LR5.3 call a motion to the attention of the court for decision.

    Any party may also request the clerk to report on the status of any motion on file for at least seven months without a ruling or on file and fully briefed for at least sixty days. Such requests will be in writing. On receipt of a request the clerk will promptly verify that the motion is pending and meets the criteria fixed by this section. If it is not pending or does not meet the criteria, the clerk will so notify the person making the request. If it is pending and does meet the criteria, the clerk will thereupon notify the judge before whom the motion is pending that a request has been received for a status report on the motion. The clerk will not disclose the name of the requesting party to the judge. If the judge provides information on the status of the motion, the clerk will notify all parties. If the judge does not provide any information within ten days of the clerk’s notice to the judge, the clerk will notify all parties that the motion is pending and that it has been called to the judge’s attention.

  11. David,

    Thanks ever so much! I am the chair of our local rules committee. Perhaps the rule adopted in the Northern District of Illinois is something we should adopt in Nebraska. It certainly seem sensible to me.

    All the best.

    RGK

  12. Dear Chocolatetort,

    For the longest time, I had a rule in my chambers. It went something like this, “If I show up on that damn CJRA report, you’re fired!” I didn’t mean it, but everyone got the message.

    This month the great CJRA flurry started once again just like fall follows summer each year. My courtroom deputy ran the report, and distributed it to chambers with a draft of a proposed response. Everyone looked it over, and a debate ensued about the proper codes to use to explain why a few things appeared. Much grinding of teeth about which code(s) are proper. Numerous e-mails exchanged as hours are invested in scrubbing the report for errors. Ultimately, the report is agreed upon and ready for submission. Alas, and ’cause we don’t cheat, a few items are going to be reported. Depression ensues as law clerks ponder job search. Then, law clerks perk up. The judge is old. He is on senior status. His short term memory is not as good as it once was. We are safe. Heart rates subside, and everything returns to normal.

    So, I was tickled by your comment. Who says people can’t remember pain!

    All the best.

    RGK

  13. A former AUSA sent me a letter about a case I have and reminisced about federal court and unnecessary prosecutions. He was required to prosecute a Marine recently retuned form Viet Nam on a charge that fit the statute but not common sense, Judge Robinson sentenced the defendant to “..30 seconds probation or until you leave the courtroom , whichever is shorter— and thank you for your service”

  14. Judge,

    While you may not know any vindictive Federal judges I’ve had experiences that make such fears reasonable. In one matter my motion for summary judgment had been pending for many months when the Judge’s assistant called to ask about prospects for settlement. I explained that with a pending motion, the parties remained far apart. I promptly received a one sentence denial of the motion for unspecified questions of material fact. Perhaps it was a coincidence, but I think not.

  15. A one sentence ruling on a motion for SJ is appalling in my LTHO ….less than humble opinion. The winning party does not care much but the losing party and the losing lawyers are entillled to know exactly why they lost in my LTHO. To me not explaining the rational is an abuse of power. Years ago I worked with great lawyers on both sides of a very complicated IP case with 8 unsettled questions of, of all things, Nebraska law. The lawyers and I worked extremely hard on a 60 + page certification order to the Nebraska Suprem Court. In short order we received a one liner denying the request for certification. I was furious and it only strengthend my belief that one liners are an abuse power.

  16. In the deep, dark ages in which I clerked, a call from an attorney about a motion prompted one of two reactions. If the call constituted a well-placed reminder of a motion gone astray, then the motion got priority for consideration. If the call plainly was premature (much less time than discussed here), the motion went straight to the bottom of the pile. As you note, Judge, no one ever got cheated on the merits because of a call. But no one moved up by virtue of whining.

    Now that I practice, on the defense side, my clients are generally happy to wait. The lingering prospect of a favorable ruling holds more currency than a prompt unfavorable one. The time between submission of a summary judgment motion and its decision is one of the more productive periods for settlement discussions, particularly when there’s been oral argument from which one side or the other (or both) perceives a significant likelihood of defeat.

    The one outstanding example of abuse that I’ve seen, though, involved a motion to remand a removed case that a friend filed on behalf of a client. The DJ held it on for over three years (many attempts to prod the judge flopped) — and then granted it. Jurisdictional motions deserve better. The forum in which a case resides can make a huge difference to how discovery is conducted and how the case is prepared for trial. The parties deserve to know promptly whether they’re staying in federal court or, as in that one soon-to-revised corner of the Monopoly board, “Just Visiting.”

  17. Dear JHP,

    Your “ancient” experience as a law clerk was good to hear. For what is is worth, your experience with calls to chambers about moldy motions is the same as mine. Same, same for lawyers who call to merely whine. Nobody gets smacked for calling because, and for among other reasons, we realize that sometimes stuff gets lost, but whiners don’t get priority either.

    And, I couldn’t agree with you more that waiting three years to say, “Oops, no jurisdiction” is the perfect example of the high cost of judicial sloth. When that happens, it is almost always because the law clerk views the motion as really hard. But that is not an excuse. On the contrary, law clerks earn their pay by resolving hard motions in a timely fashion. Judges have only one commodity worth buying, and that is timely decisions. Whether the decision is correct or will stand on appeal is (or ought to be) secondary. Resolve the damn thing, and move on.

    Thanks for giving us the benefit of your experience. All the best.

    RGK

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