Justice Delayed

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Justice Delayed


Courts are busy, and generally understaffed and underfunded when you consider the workload they are expected to handle. At times, that means that cases slip through the judicial cracks. That can present a thorny problem for litigants awaiting a ruling. At what point, and through what means, do you try to (gently) remind a court that it hasn’t ruled in your case?

Two recent decisions in not–so–recent cases have brought this issue to the fore. In one case [HT: Wall Street Journal], involving investors’ ability to sue mutual–fund firms, the Supreme Court ordered a remand to the Seventh Circuit Court of Appeals for a second look in 2010. Five years later, the Seventh Circuit issued an opinion deciding the case, and explaining what had happened to it. “[P]apers were placed in the wrong stack and forgotten,” and the court’s internal system for flagging pending cases failed to alert the court to the (long) pendency of the appeal. The plaintiffs’ attorney, James C. Bradley, reports that he periodically checked with the court clerk to ask whether the case had been forgotten, but was assured that it had not.

In a second case [HT: Ars Technica], a patent infringement action brought by patent troll TQP Development against Newegg, Newegg filed post–trial motions challenging a $2.3 million jury verdict in 2013 in the Eastern District of Texas. The court did not act on the motion or enter a final, appealable judgment. Newegg says it filed several pleadings with the court, which it believed would bring the issue to the court’s attention. After twenty months of waiting, Newegg then filed a petition for a writ of mandamus with the Federal Circuit Court of Appeals, asking the appellate court to address the issues raised by Newegg’s post–trial motions and enter judgment in its favor. Shortly after the petition was filed, the court granted Newegg’s motion for a judgment of non-infringement, but chided the company because it “could not be troubled to pick up the phone and call the Court’s staff.” In the order, Judge Rodney Gilstrap continued, “the Court suggests that the parties themselves would be better served (and costs reduced) if they elected not to shoot first and ask questions later.” According to a footnote in the order, a clerk’s error inadvertently docketed a stay in the case, so that Newegg’s motions did not appear on the court’s pending motions report.

Which raises this question: As a litigant, are you better off calling the clerk and waiting patiently for a decision, or filing pleadings that may upset your judge?

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