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

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