JONATHAN TURLEY

A law firm is looking at a nightmare after it filed one minute late — and lost one million dollars. The lawyers had the right to seek the fees on behalf of its client Toshiba America and does not meet the standard of excusable neglect when the lawyer was forced to wait for a “long train to pass.”

Here is the basic facts:

Here, [Toshiba’s] purported reason for its delay is that its courier was caught in traffic at 3:30 in the afternoon in Santa Ana, California. Mr. Mersel, attorney for [Toshiba], asserts that he waited until 3:14 p.m. on the last day of the filing period to deliver the motion to Morrison & Foerster’s regular courier service. Mr. Mersel asserts that although he was aware that the filing deadline was 4:00 p.m., he had “never had a problem with getting papers filed by 4:00 p.m. when delivering them to the attorney service” forty-five minutes in advance. The courier, Mr. Moskus, swiftly responded to Mr. Mersel’s request, leaving on his motorcycle for the courthouse at approximately 3:30 p.m. Unfortunately, Mr. Moskus encountered “unusually heavy traffic” and had to “wait at the railroad crossing on Grand Avenue for a long train to pass.” Consequently, Mr. Moskus arrived at the Courthouse after the office had closed and Mr. Mersel was unable to file the motion until the following day, on October 11, 2007.

I am very sympathetic. I once had to leave my car in the middle of Constitution avenue running with its door open to sprint a block to the courthouse to file in time. My former colleague Joan Manley and I were racing to put the filing in the evening drop box and both had a copy of the filing. Both of us thought the other was going to run to the courthouse when stuck at a light. By the time that we realized that both of us were running down the street, it was too late to stop. Remarkably, we got both the filing in (one minute to spare) and my car back.

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