[00:00:01] Speaker 00:
Case number 15-7005, Robert Cohen, Appellate versus Board of Trustees of the University of the District of Columbia, co-chair Dr. Eileen Crider, and their official capacities as trustees for the University System for the University of the District of Columbia and its flagship University of the District of Columbia at L. Mr. King for the Appellate, Ms.

[00:00:21] Speaker 00:
Abrams for the Appellees.

[00:00:54] Speaker 04:
Good morning, your honor.

[00:00:58] Speaker 04:
May it please the court, Tyler King, on behalf of the appellant in this matter.

[00:01:06] Speaker 04:
For the most part, the appellant has briefed the issues in the brief.

[00:01:11] Speaker 04:
And I'm going to keep this brief.

[00:01:13] Speaker 04:
And I want to briefly start by stating that I'm extremely embarrassed and humbled to be here today.

[00:01:23] Speaker 04:
I would have much rather liked to be here for the first time.

[00:01:32] Speaker 04:
dealing with a case about the merits, like the previous case, that involves important issues.

[00:01:38] Speaker 04:
Instead, I'm here on a question of why my client filed papers late.

[00:01:44] Speaker 04:
And believe me, I understand the importance of judges' case management orders and scheduling.

[00:01:52] Speaker 04:
I've never clerked before, so I don't notice what happens behind the scenes.

[00:01:57] Speaker 04:
But I do know that judges deal with hundreds, if not thousands, of cases at a time.

[00:02:02] Speaker 04:
And here you're dealing with three appeals today.

[00:02:06] Speaker 04:
That would be very difficult to manage for anyone, I would think.

[00:02:11] Speaker 03:
Can you just clarify your position?

[00:02:15] Speaker 03:
As I understand it, your argument is that this one just doesn't fit the 7B mold.

[00:02:24] Speaker 03:
that it wasn't properly invoked in this case under these circumstances, not that 7-B can't be used at the 12-B-6 stage, or coming judgments just as it was applied here, this one didn't quite fit the bill.

[00:02:43] Speaker 04:
You know it's important for me to always look to redeeming aspects to you know cases and matters and I can do that here because I can say that this you know for me the redeeming aspect of this case is that

[00:02:58] Speaker 04:
I personally believe in what the appellant's position is in this case.

[00:03:03] Speaker 04:
Usually I don't refer to cases in the first person.

[00:03:06] Speaker 04:
It's not my case.

[00:03:07] Speaker 04:
It's not my position, et cetera.

[00:03:08] Speaker 04:
But I personally believe in this position.

[00:03:11] Speaker 04:
And the position is based upon the fact that in my relatively new experience with the justice system, of the various things that surprised me the most, one of the most surprising things is that

[00:03:26] Speaker 04:
judges, trial judges, don't necessarily, in every case, try to figure out who's right and who's wrong on a legal issue.

[00:03:35] Speaker 04:
And instead, they will often, not in every case, but often, and it seems like more often than not, they just pick a side.

[00:03:43] Speaker 04:
And in this kind of case, where you're dealing with a legal question of whether or not the complaint states a claim,

[00:03:52] Speaker 04:
to pick a side by default it doesn't do what the judge is supposed to do.

[00:03:59] Speaker 03:
I don't know what you mean by picking a side.

[00:04:01] Speaker 03:
Are you suggesting favoritism by the district court or bias by the district court?

[00:04:06] Speaker 04:
Well, no.

[00:04:06] Speaker 04:
I'm referring to the distinction here where

[00:04:10] Speaker 04:
The judge always has to pick a side.

[00:04:12] Speaker 04:
So it's not a question of picking a side.

[00:04:15] Speaker 04:
It is how that decision is made.

[00:04:18] Speaker 04:
And in this particular scenario where you have a rule that says that the failure to file a paper can be deemed a concession,

[00:04:27] Speaker 04:
a judge can use this as an opportunity to pick a side without actually having to determine what the initial question was to begin with.

[00:04:37] Speaker 02:
Can I ask you Mr. King, how do you distinguish your case from the precedent that binds us here, which is Fox's opinion, which said that it's

[00:04:56] Speaker 02:
Well, OK, so Fox is a permissible use of the local rule to apply it to deem a 12b6 motion to be conceded and to dismiss the case on its merits.

[00:05:08] Speaker 04:
Fox is definitely not a good case for the appellant in this particular scenario.

[00:05:15] Speaker 04:
The facts, though, Fox can easily be distinguished on the facts, because

[00:05:23] Speaker 04:
In Fox, you had a counsel who didn't check the docket, okay?

[00:05:29] Speaker 04:
This was a key factual distinction that- But that happened in your case.

[00:05:34] Speaker 02:
Well, no, that's the key- There was a check, but it was an inept check.

[00:05:38] Speaker 02:
And it seemed erroneously to someone in your office that no motion dismissal had been filed, but no follow-up to present counsel, no follow-up to the court had.

[00:05:49] Speaker 02:
This looks like part of a pleading.

[00:05:51] Speaker 02:
Same.

[00:05:52] Speaker 02:
It seems really the same.

[00:05:53] Speaker 02:
That's a pretty fine distinction.

[00:05:55] Speaker 04:
I think that it's a fine distinction, but it's a important and substantial distinction between not checking to see whether or not something's been going on and actively, diligently checking and doing things to follow up.

[00:06:13] Speaker 03:
The other part of our- Sorry, what did you do to follow up?

[00:06:17] Speaker 04:
to continue to check the document.

[00:06:19] Speaker 04:
So you had confirming without.

[00:06:21] Speaker 03:
You didn't check it in time to meet the deadline for filing.

[00:06:24] Speaker 04:
I'm sorry?

[00:06:24] Speaker 03:
You didn't check it in time to meet the deadline for filing.

[00:06:28] Speaker 04:
That's correct, Your Honor.

[00:06:29] Speaker 03:
I guess I don't understand how your distinction makes any legal difference with integrity, how we could explain to, I don't know, Mr. or Mrs. Fox or whatever in that case, why they lost and you pre-failed.

[00:06:44] Speaker 03:
Because you clicked on the wrong link

[00:06:48] Speaker 04:
Well, again, Your Honor, it's not as simple as that.

[00:06:51] Speaker 04:
Because, again, in Fox, the issue in Fox was that the attorney said that their email wasn't working.

[00:07:00] Speaker 04:
And so because their email wasn't working, they didn't get the notice.

[00:07:03] Speaker 04:
That's not what happened here.

[00:07:05] Speaker 04:
And then in that case, there was a six month.

[00:07:07] Speaker 03:
No, it seems worse.

[00:07:07] Speaker 03:
You actually had notice that something looked like it was filed.

[00:07:10] Speaker 03:
Exactly.

[00:07:10] Speaker 03:
That's worse for you.

[00:07:12] Speaker 03:
Something was filed and clicked.

[00:07:14] Speaker 03:
It didn't look like it was complete.

[00:07:16] Speaker 03:
And you didn't do anything with it.

[00:07:17] Speaker 04:
Again, Your Honor, that's the same type of thing that the lower court has sort of said in that nothing was done about it.

[00:07:26] Speaker 04:
But again, the full facts are that diligent efforts were made to try to figure out what was going on with this motion.

[00:07:37] Speaker 04:
So confirming with other people in the office, do you also see that it's not been filed correctly?

[00:07:42] Speaker 04:
Yes.

[00:07:43] Speaker 03:
Other people, you said it was one other person.

[00:07:45] Speaker 04:
Right, Your Honor.

[00:07:46] Speaker 03:
OK, so you got one other person.

[00:07:48] Speaker 04:
and checking again the next week to check the docket again.

[00:07:53] Speaker 04:
And then what is most important in this case, maybe not most important, but what is also an extremely important fact in this case is that the other party filed, or not filed, but served a Rule 11 notice.

[00:08:08] Speaker 04:
The Rule 11 notice indicated all of the exact same arguments that were presented in the motion to dismiss.

[00:08:15] Speaker 04:
They did this at a particular time

[00:08:18] Speaker 04:
in the proceeding that caused the filing of the motion to dismiss to appear to be perhaps

[00:08:30] Speaker 04:
Not correct.

[00:08:31] Speaker 04:
So for example, the Rule 11 notice is withdraw your complaint or refile a Rule 11 notice.

[00:08:39] Speaker 04:
Your complaint is frivolous, and it does all the same arguments as the motion to dismiss.

[00:08:45] Speaker 04:
In the process of responding to that notice, the appellant was responding to all the arguments in the motion to dismiss.

[00:08:53] Speaker 04:
So to say that... And that wasn't filed with the court.

[00:08:57] Speaker 02:
no it wasn't it wasn't because

[00:09:01] Speaker 02:
as the rule 11 is supposed to function, exchange of documents, and respond to that, right?

[00:09:07] Speaker 02:
The complaint was withdrawn.

[00:09:08] Speaker 04:
Yes, Your Honor.

[00:09:09] Speaker 04:
Yes, Your Honor.

[00:09:10] Speaker 04:
The response to the rule 11 notice wasn't filed with the court.

[00:09:15] Speaker 04:
But the rule 11 motion also wasn't filed with the court.

[00:09:19] Speaker 04:
And is the record reflect?

[00:09:20] Speaker 02:
But the motion to dismiss for failure to get a claim was that the court didn't have the benefit of the arguments that you say were responsive to the reasons that

[00:09:31] Speaker 02:
that the defendants were proffering for dismissing your complaint.

[00:09:38] Speaker 04:
Well, the court ultimately did have those arguments, because in the process of responding to the rule of the notice, that's when it was discovered that this document had potentially been filed correctly.

[00:09:54] Speaker 04:
And immediately, a motion was filed to extend time to oppose the motion to dismiss.

[00:09:59] Speaker 02:
It's really unclear if all the arguments in opposition to the motion to dismiss had actually been prepared and written out

[00:10:07] Speaker 02:
in the submission that was exchanged on the Rule 11 proceeding, why did a new caption get put on that and it was filed that day?

[00:10:15] Speaker 04:
Because this case was not that simple.

[00:10:18] Speaker 04:
Because the legal arguments at issue in this case were extreme, are extremely complex and the response... You're talking about the merits.

[00:10:28] Speaker 05:
The merits arguments are complex.

[00:10:29] Speaker 04:
The merits are extremely complex and getting to

[00:10:33] Speaker 04:
of being able to establish the threshold issue on whether or not it is frivolous.

[00:10:38] Speaker 05:
If we didn't agree with your ability to distinguish Fox, if we disagreed with you, where are you left then?

[00:10:48] Speaker 05:
You have to ask us to overrule Fox, right?

[00:10:51] Speaker 04:
Well, Fox should be overruled if it stands for the proposition that a complaint

[00:11:00] Speaker 04:
in and of itself doesn't self-evidently state a claim.

[00:11:04] Speaker 03:
What do you mean self-evidently?

[00:11:06] Speaker 03:
How's that going to work?

[00:11:07] Speaker 03:
The district court here also denied your extension motion because you didn't manage to brief that on time either.

[00:11:14] Speaker 03:
So if that was properly denied, you don't get an extension.

[00:11:17] Speaker 03:
So you just can't file a brief.

[00:11:20] Speaker 03:
How is the district court supposed to pick up this complaint and figure out?

[00:11:24] Speaker 03:
Well, we got a ZERA motion to dismiss.

[00:11:26] Speaker 03:
How is the district court supposed to figure out?

[00:11:29] Speaker 03:
whether it states the claim.

[00:11:31] Speaker 03:
And it's very, as you just said, very complicated and difficult case.

[00:11:35] Speaker 03:
Is the district court supposed to do your work for you?

[00:11:42] Speaker 04:
What choice would the district court have?

[00:11:44] Speaker 04:
I'm sorry, but it's not the plaintiff's duty to jump through an additional hoop to further explicate why the complaint

[00:11:57] Speaker 05:
states a claim when it's already been asserted as... Is your point that the burden remains with the movement of 12b6, that that's what the rule provides, that if you're going to file a 12b6 motion and prevail on it, you have to make the case, the movement has to make the case?

[00:12:13] Speaker 04:
Yes, Your Honor, because here's a very simple situation.

[00:12:18] Speaker 04:
The motion to dismiss is meritless.

[00:12:22] Speaker 04:
But the judge is going to dismiss the case because of a meritless motion to dismiss.

[00:12:27] Speaker 04:
That doesn't make sense.

[00:12:28] Speaker 03:
What do I do with the incentive, then, for someone just to not respond?

[00:12:31] Speaker 03:
Because I'd rather have the district court and the district court's law clerk figure out why I state a claim.

[00:12:37] Speaker 03:
They might have better ideas than I do.

[00:12:41] Speaker 03:
So if I just don't file something, they'll do the work for me.

[00:12:44] Speaker 04:
I respect that point.

[00:12:48] Speaker 04:
I think that it's an extremely important point, but I don't think that this is about who does whose work.

[00:12:54] Speaker 03:
No, I'm asking you functionally how this is going to work in your view, where you're not allowed to file the brief.

[00:13:01] Speaker 03:
We've got one in there.

[00:13:02] Speaker 03:
And trust me, motions to dismiss can be very hard.

[00:13:04] Speaker 03:
Supreme Court decides cases that get there on a motion to dismiss.

[00:13:09] Speaker 03:
So they cannot be self-evident from the complaint.

[00:13:12] Speaker 03:
It can require a lot of research and a record to understand, not the record, but whatever material.

[00:13:20] Speaker 03:
Sometimes complaints come with large attachments to them that has to get sorted through.

[00:13:26] Speaker 03:
So that can be a very hard job.

[00:13:27] Speaker 03:
So I'm really trying to figure out how this is supposed to work within an adversarial system when

[00:13:35] Speaker 03:
The non-movement movement doesn't do anything.

[00:13:38] Speaker 03:
What burden are we leaving on the district court there?

[00:13:41] Speaker 04:
Well, essentially, it comes down to the burden of persuasion and the burden of production.

[00:13:46] Speaker 05:
Don't you have some rules that help out there?

[00:13:48] Speaker 05:
Rule 41, rule 55.

[00:13:50] Speaker 05:
Aren't there rules in the federal rules of civil procedure that deal with failure to act either?

[00:13:56] Speaker 05:
Wouldn't that be helpful to you?

[00:14:00] Speaker 04:
Well, yes, Your Honor.

[00:14:01] Speaker 04:
I mean, essentially, you have, I think, two sort of discrete issues.

[00:14:05] Speaker 04:
The one issue is whether or not, as a legal question, a complaint can be deemed not to state a claim, even if it does.

[00:14:14] Speaker 04:
And then the second is, when do you begin to sanction parties for failing to respond to things?

[00:14:20] Speaker 04:
And, you know, certainly I can understand there's an avenue for sanctioning conduct that results in making this process more difficult for... That's what Rule 41's about, right?

[00:14:33] Speaker 05:
I mean, if you have a failure to prosecute a claim, that rule exists.

[00:14:37] Speaker 02:
But you're also talking about lawyer sanction.

[00:14:38] Speaker 02:
You can sanction someone under what authority?

[00:14:41] Speaker 02:
I mean, it's sort of curious.

[00:14:43] Speaker 02:
It's not really a

[00:14:44] Speaker 02:
11 sanctioned for failure to file a brief?

[00:14:49] Speaker 02:
Is it just with the residual authority of the court?

[00:14:51] Speaker 04:
Inherent power.

[00:14:51] Speaker 02:
Inherent power.

[00:14:53] Speaker 04:
Yes.

[00:14:53] Speaker 02:
So you're saying it's better to sanction the lawyer who fell down on the job than to punish the client with a preclusive merits ruling against the client because the lawyer missed the deadline.

[00:15:04] Speaker 04:
Yes.

[00:15:05] Speaker 04:
At a certain point, if it's going to come down to

[00:15:08] Speaker 04:
to a sanction, then it should be done as a sanction.

[00:15:13] Speaker 04:
And it shouldn't be done under the guise of this is conceded.

[00:15:18] Speaker 04:
And let me just, so a minute.

[00:15:20] Speaker 02:
Well, what sanction that's permissible, at least under Rule 11, and I realize it's not directly, doesn't directly fit here.

[00:15:26] Speaker 02:
But there is an available sanction of dismissal.

[00:15:31] Speaker 02:
That is, albeit an extreme sanction, but that isn't.

[00:15:34] Speaker 04:
A case can be dismissed as a sanction.

[00:15:37] Speaker 03:
Without ruling on the legal merits, even if in fact the complaint stated a claim, it could be dismissed because of under Rule 41B, correct?

[00:15:48] Speaker 04:
Yes, a complaint can be dismissed for failure of prosecution.

[00:15:51] Speaker 03:
So there's no cross-cutting obligation to always, when a motion to dismiss is filed, make that legal ruling as to whether the movement has met their burden of showing 12b6 met.

[00:16:02] Speaker 03:
I know this isn't your case, but if someone files a motion to dismiss,

[00:16:08] Speaker 03:
and the attorney doesn't file and a year goes by.

[00:16:12] Speaker 03:
They keep missing deadlines, keep asking for filing late extension motions and then missing the next deadlines.

[00:16:18] Speaker 03:
Let's just say this went on month after month after month and never actually got around to filing it.

[00:16:24] Speaker 03:
A district court there could under 41B dismiss the case without ever actually asking whether the movement met their burden under 12B6.

[00:16:34] Speaker 03:
I should think.

[00:16:35] Speaker 04:
Yes, Your Honor, and I think that my understanding of the analysis, though, is that if you are going to dismiss a case under that rule as a sanction, you're using a much different standard of review, a different analysis of the situation, and the conduct that's going to be at stake.

[00:16:53] Speaker 05:
Well, there's more process involved, the greater protections.

[00:16:57] Speaker 04:
Yes.

[00:16:57] Speaker 03:
What are the greater protections?

[00:16:59] Speaker 04:
Well, the standard.

[00:17:01] Speaker 04:
The standard of law is such that the conduct has to be.

[00:17:05] Speaker 03:
There's no extra procedural protections.

[00:17:06] Speaker 03:
You have to make specific determinations.

[00:17:09] Speaker 04:
I don't know, offhand, Your Honor, whether or not Rule 41 requires a notice, some sort of show cause order prior to dismissal.

[00:17:18] Speaker 05:
But Your Honor, if we were to agree with you about 7b, should we reach the merits?

[00:17:29] Speaker 05:
That seemed like they've been fully briefed here.

[00:17:35] Speaker 05:
Should there be merits of whether or not the plaintiff... It's actually a limitations issue, the exhaustion of remedies issue.

[00:17:42] Speaker 05:
What are you asking us to do?

[00:17:44] Speaker 04:
I think that the court, if it would want to, that it should reach the merits because... I don't know...

[00:17:56] Speaker 05:
Did your client ever pursue the administrative remedies outlined in the Personnel Act?

[00:18:03] Speaker 04:
No, he didn't.

[00:18:04] Speaker 04:
He had two avenues to choose.

[00:18:06] Speaker 04:
He could go through the Office of Administrative Hearings, or he could go through the court.

[00:18:15] Speaker 04:
And in this case, it becomes extremely complex.

[00:18:19] Speaker 05:
But he didn't pursue the administrative remedies, you're saying?

[00:18:23] Speaker 04:
No, he did not.

[00:18:25] Speaker 04:
One just quick point too, I wanted to point out that on this question of the rule 7b, one of the ways in which the other circuits deal with it in the first circuit from one of the cases that cited, essentially there's an understanding that the 7b rule has to do with

[00:18:46] Speaker 04:
uh... conceding portions of an argument or portions of the case and it's not intended to be a wholesale idea that an entire case is conceded so you have when something is uh... when uh... papers filed that requires a response and a response is given but it doesn't cover all of what it might respond to.

[00:19:09] Speaker 02:
Mr. Kay I have another question about assuming that we were writing on a clean slate and we didn't have

[00:19:15] Speaker 02:
the Fox precedent, and we're considering how to understand the applicability of local rule 7b, were we to accept the position that you advocate, which is that the rule 12b6 movement bears a burden and therefore in the absence of a response, the district judge should do her best or his best to decide whether the complaint states a claim.

[00:19:41] Speaker 02:
Let's say in that situation the district judge says it does not,

[00:19:45] Speaker 02:
aided by a brief on one side and no brief on the other.

[00:19:48] Speaker 02:
It does not state a claim.

[00:19:49] Speaker 02:
And the case goes on appeal.

[00:19:51] Speaker 02:
In that case, how could the appeal proceed where the plaintiff has forfeit all the legal arguments?

[00:20:00] Speaker 02:
How can we apply our rule on preservation of arguments?

[00:20:04] Speaker 04:
That's how this First Circuit case deals with the issue, and I don't remember the name of the case offhand, but I can provide further brief on it if necessary.

[00:20:13] Speaker 04:
But essentially what it does is it establishes that the post-judgment rules under Rule 59 and Rule 60 are the point at which the litigant would say, I've not conceded this.

[00:20:27] Speaker 04:
and if they fail to raise the argument at that point under Rule 59 or Rule 60, then it is considered conceded for purposes of appeal.

[00:20:36] Speaker 02:
Can I just, oh, sorry, you don't?

[00:20:38] Speaker 02:
I was just gonna say, that seems like a little bit of an awkward fit under Rule 59 or Rule 60.

[00:20:42] Speaker 03:
I just wanted to say, I appreciate that you have taken an apologetic tone here, but I just want you to know that I took great offense when you're briefed on numerous occasions

[00:20:57] Speaker 03:
accused the district court of inattention to detail, insensitivity, and just trying to avoid the merits of your case.

[00:21:07] Speaker 03:
I took great offense.

[00:21:08] Speaker 03:
I had no reason to think that the district court was doing that.

[00:21:13] Speaker 03:
They were doing their best to apply the rules with someone who wasn't following the court rules.

[00:21:20] Speaker 03:
And so going forward,

[00:21:23] Speaker 03:
I hope you've never been in a position like this.

[00:21:25] Speaker 03:
But for what it's worth, for at least one third of this panel, a brief, when you are the one who caused the problem, that accuses the district court of inattention to detail, is not at all appropriate.

[00:21:38] Speaker 04:
I understand, Your Honor.

[00:21:40] Speaker 04:
I'm obviously extremely regretful that this happened.

[00:21:45] Speaker 03:
Apologies to the district court, not to me.

[00:21:49] Speaker 05:
OK.

[00:21:49] Speaker 05:
Thanks very much.

[00:21:57] Speaker 01:
Morning, Your Honors.

[00:21:58] Speaker 01:
May it please the Court, Anessa Abrams on behalf of the Appellees.

[00:22:02] Speaker 01:
This case is solely and significantly about the great discretion afforded to the District Court under the rules, discretion which the District Court exercised both on the 6B motion and then in finding that the motion to dismiss was granted as conceded.

[00:22:20] Speaker 01:
It's our position that Plaintiff's Council has not

[00:22:24] Speaker 01:
put forth any information or evidence to demonstrate at all that the district court abused its discretion.

[00:22:30] Speaker 01:
I'd like to, I guess, touch on the 7B argument, which was a central part of plaintiff's counsel's discussion.

[00:22:39] Speaker 01:
Rule 7B.

[00:22:42] Speaker 01:
is a document management tool.

[00:22:44] Speaker 01:
The sole discretion of whether to implement Rule 7B and treat something as conceded lies solely with the district court.

[00:22:52] Speaker 01:
And that is what the district court did in this case.

[00:22:55] Speaker 01:
This circuit has held that the district court does not have to relinquish control of its docket to a party who repeatedly fails to comply with its obligations.

[00:23:04] Speaker 01:
That is exactly what happened here.

[00:23:06] Speaker 03:
Well, a lot of the cases we've seen, most ones that I've seen, have been much more egregious.

[00:23:12] Speaker 03:
than this one, right?

[00:23:14] Speaker 03:
There's no finding of bad faith.

[00:23:17] Speaker 03:
Who knows why clicking on the link didn't work or what happened.

[00:23:21] Speaker 03:
But this isn't, you know, this was a question of a few weeks delay in a case where there was conceded to be no prejudice.

[00:23:31] Speaker 03:
It was the first deadline he missed and then he missed one on his extension motion.

[00:23:36] Speaker 03:
And that's all we have in this case.

[00:23:39] Speaker 01:
I would disagree, Your Honor.

[00:23:40] Speaker 01:
I think the district court

[00:23:42] Speaker 01:
um... reviewed and balanced and considered the four factors under pioneer in determining whether there was excusable neglect.

[00:23:51] Speaker 01:
I do admit that the district court found that two of those factors weigh in favor of the plaintiff.

[00:23:56] Speaker 01:
I would disagree with your honor's characterization that there's just one missed deadline here.

[00:24:02] Speaker 01:
When you look at

[00:24:04] Speaker 01:
the entire record of this case and the case as a whole, there were... Why do we get to look at another court, right?

[00:24:10] Speaker 03:
Why does he get to count what happened in Superior Court?

[00:24:12] Speaker 03:
That's just not his jurisdiction.

[00:24:14] Speaker 01:
Because that is the entire record of this case.

[00:24:16] Speaker 01:
And when the case get removed from the Superior Court to the District Court, the entire case and the entire procedural history comes with that case.

[00:24:25] Speaker 01:
You don't just necessarily get to start over in any court.

[00:24:29] Speaker 03:
But 7B doesn't get to police deadlines that are missed in Superior Court.

[00:24:33] Speaker 01:
Well, the judge didn't rely on, the judge could have relied on 7B without even looking at what happened in the Superior Court.

[00:24:41] Speaker 01:
Plaintiff's Council, in this case, in the District Court itself, focusing just on the District Court, failed to timely respond to the motion to dismiss.

[00:24:51] Speaker 01:
Plaintiff's Council, by his own admission, clicked on the wrong hyperlink.

[00:24:57] Speaker 01:
thinking that the motion to dismiss was filed in error, and decided tactically to sit back and wait for the defendants to go ahead and file something else to correct what plaintiffs' counsel perceived to be an error.

[00:25:10] Speaker 03:
But you've got that one misstep and then one misstep on the extension motion.

[00:25:14] Speaker 03:
And trust me, we see things that are way worse than that.

[00:25:19] Speaker 03:
All right, this struck me as actually a surprising exercise of Rule 7B, because there just wasn't a prolonged pattern.

[00:25:27] Speaker 03:
The pattern went over the course of like a month.

[00:25:30] Speaker 03:
And there was absolutely no, you never asserted prejudice.

[00:25:35] Speaker 03:
And so it struck me as,

[00:25:38] Speaker 03:
not have, without any sort of advanced notice, no consideration of lesser measures that could have been taken here rather than jeopardizing the case.

[00:25:47] Speaker 03:
And this isn't something where a client, you know, a client may notice if someone goes six months, eight months without doing something, but this was just

[00:25:56] Speaker 01:
mistake means make mistakes we did argue your honor all four of the pioneer factors to the district court the district court exercise its discretion to weigh those factors found that for example the prejudice factor weighed in the plaintiff's favor i do think this is an egregious case this court has

[00:26:16] Speaker 01:
upheld the granting of a motion to dismiss as conceded under Rule 7B in the Fox v. American Airlines case.

[00:26:22] Speaker 01:
It's our position and my position that the plaintiff's conduct in this case is significantly more egregious than what this court was presented with in Fox.

[00:26:31] Speaker 05:
What's the egregious conduct?

[00:26:33] Speaker 01:
In Fox.

[00:26:34] Speaker 05:
Here, what's the egregious conduct?

[00:26:35] Speaker 01:
Right, I will get to that.

[00:26:36] Speaker 01:
In Fox, there was the counsel, Fox's counsel, had gotten no notice that something had been filed.

[00:26:44] Speaker 01:
because of an alleged error with the ECF system.

[00:26:48] Speaker 01:
In this case, plaintiff's counsel concedes he had noticed that something was filed.

[00:26:53] Speaker 01:
He mistakenly believed it was filed in error.

[00:26:56] Speaker 01:
He made a tactical decision to sit and wait for the defendants to do something else.

[00:27:00] Speaker 05:
This is egregious conduct?

[00:27:03] Speaker 01:
Yes, didn't contact the court.

[00:27:05] Speaker 01:
didn't contact the clerk, there was no error message entered by the court or the clerk, and didn't file for an extension of time at the time he thought there was a mistake.

[00:27:14] Speaker 01:
Yes, Your Honor.

[00:27:18] Speaker 02:
You're representing the

[00:27:21] Speaker 02:
Your Board of Trustees at the University of District of Columbia, I'm just a little bit curious about, this is not a governmental position, but private counsel hired by, it's a public university?

[00:27:33] Speaker 01:
It's an independent agency, UDC is an independent agency of the government, so it does use private outside counsel, yes.

[00:27:43] Speaker 02:
on discretion.

[00:27:44] Speaker 02:
I mean, sometimes the, I thought sometimes the Attorney General of the district would represent the university now.

[00:27:52] Speaker 01:
That may happen in some circumstances, but I don't think the university is bound to use the Attorney General's office.

[00:27:58] Speaker 03:
Were there private defendants here, too, or not?

[00:28:00] Speaker 03:
Were they in the official capacity?

[00:28:01] Speaker 01:
No, the individual defendants were sued in their capacity as officials of the university.

[00:28:11] Speaker 05:
You were telling me the egregious conduct, and the egregious conduct you described as a mistake.

[00:28:19] Speaker 05:
So what was egregious about it again?

[00:28:21] Speaker 01:
Well, what's egregious about it is that plaintiff's counsel then sat back and did nothing.

[00:28:26] Speaker 01:
Plaintiff's counsel, like I said... How long did they do nothing in Fox?

[00:28:31] Speaker 01:
I'm not sure.

[00:28:32] Speaker 03:
I got a December 6th motion and no parent filing, even opposing that by August.

[00:28:39] Speaker 03:
So that's a much longer time.

[00:28:42] Speaker 03:
Many, many months.

[00:28:44] Speaker 01:
Right, but like I said, I think it's our position that... And how long was it here between the mistake and an attempt to remedy the mistake?

[00:28:52] Speaker 01:
it may have been two or three weeks if I remember correctly but I think this whole situation it could have been avoided had council not made the tactical decision to sit back and do nothing.

[00:29:03] Speaker 01:
Council could have filed an extension at that time.

[00:29:05] Speaker 02:
That just seems bizarre to me.

[00:29:07] Speaker 02:
If you're council, first of all, you're throwing yourself open to malpractice liability.

[00:29:12] Speaker 02:
Second of all, you're foregoing the thing that is your job to do which is to represent your client's interests.

[00:29:18] Speaker 02:
I don't have

[00:29:19] Speaker 02:
I don't see any basis on which you can fairly infer.

[00:29:23] Speaker 02:
It was a tactical decision to miss the deadline?

[00:29:27] Speaker 01:
I think it was a tactical decision to sit back and wait for the defendants to file

[00:29:37] Speaker 01:
in plaintiffs' view a correct motion to dismiss because plaintiffs mistakenly believe that the motion to dismiss has been filed in error.

[00:29:44] Speaker 02:
That's not tactical.

[00:29:45] Speaker 02:
A mistake is not tactical.

[00:29:47] Speaker 02:
And I actually find it quite an aggressive position to take, and I understand your private counsel and not government counsel, but not to pick up the phone.

[00:29:55] Speaker 02:
Even if you think he's playing dog in a manger, call up and say, hey, you know, ball's in your court, so get on it.

[00:30:03] Speaker 02:
uh... you know because maybe it is a mistake.

[00:30:06] Speaker 02:
I mean that's a professional courtesy, so I'm actually a little bit surprised that you think that this can be characterized in that way.

[00:30:13] Speaker 01:
Well, I would disagree because I think there are I've seen numerous circumstances where

[00:30:19] Speaker 01:
parties missed deadlines, I think the flip side could have happened that if Plaintiffs' Council believed that the defendant's motion was filed by mistake or there was some sort of error, Plaintiffs' Council, with no error message being entered by the court, Plaintiffs' Council could have picked up the phone and called Defense Council.

[00:30:38] Speaker 01:
I don't know.

[00:30:40] Speaker 02:
Please try to, I know we actually get to interrupt.

[00:30:42] Speaker 02:
I'm sorry.

[00:30:42] Speaker 02:
And you don't get to talk over us.

[00:30:44] Speaker 02:
It's just a custom.

[00:30:46] Speaker 02:
I did ask plaintiff's counsel, why didn't you call opposing counsel?

[00:30:51] Speaker 02:
Why didn't you call the court?

[00:30:53] Speaker 02:
So I'm not saying that there's no blame there.

[00:30:55] Speaker 02:
Clearly, as counsel has acknowledged, there is blame there.

[00:31:00] Speaker 02:
Plaintiff's counsel has fallen down the job in quite a serious way.

[00:31:07] Speaker 02:
But you are standing up and characterizing it as tactical, as egregious, as

[00:31:15] Speaker 02:
as if it were intentional.

[00:31:18] Speaker 02:
And I think we're all not quite seeing where you have record support for that.

[00:31:23] Speaker 01:
I don't... I can't sit here and say for plaintiff's counsel whether it was intentional or not, but I don't think... Well, then why would you assume that?

[00:31:33] Speaker 05:
Why would you call it egregious?

[00:31:35] Speaker 01:
Because it's not... It is not the defendant's counsel's job to tell the plaintiff's counsel how to do their job.

[00:31:42] Speaker 03:
That's a fair point.

[00:31:43] Speaker 03:
That doesn't mean what he did was intentional or tactical, as opposed to a mistake that lasted a grand total of a few

[00:31:52] Speaker 01:
weeks and I think the district court weighed and considered plaintiff's counsel's explanations.

[00:32:01] Speaker 01:
In weighing the pioneer factors of excusable neglect, the district court, within its discretion, chose to reject, for lack of a better term, plaintiff's counsel's explanation.

[00:32:12] Speaker 01:
I think that was within the district court's discretion to do so.

[00:32:16] Speaker 03:
Have you seen any case under 7B or in any other circuit applying a parallel local rule where you have the heavy hammer of dismissal of an action?

[00:32:29] Speaker 03:
based on just a few weeks delay.

[00:32:34] Speaker 01:
I can't give the court an example of one off the top of my head, but I think... I can't find one either.

[00:32:40] Speaker 01:
I think Rule 7B exists for a reason.

[00:32:44] Speaker 03:
It does, but abusive discretion doesn't mean unbounded discretion.

[00:32:48] Speaker 01:
I don't think the district court in this case exceeded its discretion.

[00:32:52] Speaker 01:
For example, this circuit has... Would it be abusive if it were one week?

[00:33:00] Speaker 03:
I'm sorry.

[00:33:00] Speaker 03:
We've just been one week late.

[00:33:02] Speaker 03:
Oh, no.

[00:33:03] Speaker 03:
Oh my gosh, I messed this up.

[00:33:04] Speaker 03:
I clicked on the wrong thing.

[00:33:05] Speaker 03:
But you had your response within a week after the deadline.

[00:33:08] Speaker 01:
I think the district court could still exercise its discretion.

[00:33:12] Speaker 01:
That's what rule 7B provides to the district court.

[00:33:16] Speaker 01:
This court has never struck down the district court's application of rule 7B.

[00:33:21] Speaker 01:
There are situations where, even if a party files an opposition to a motion... Have we had a case where it was two weeks?

[00:33:28] Speaker 05:
You say we've never struck down a decision under 7B, but has there been one where there's been only two weeks?

[00:33:38] Speaker 01:
on a motion to dismiss your honor, I can't say off the top of my head.

[00:33:41] Speaker 01:
I know rule 7B has been applied and upheld by this circuit in the context of rule 7B and in the context of other motions.

[00:33:48] Speaker 01:
And I do know that there are situations where this circuit has even said that even where a party opposes a motion to dismiss, for example, but fails to address specific arguments in that motion, those arguments are deemed conceded.

[00:34:02] Speaker 01:
I think the same application applies here.

[00:34:05] Speaker 02:
It's a very different situation, Chris Abrams.

[00:34:06] Speaker 02:
That's sort of an iteration

[00:34:08] Speaker 02:
failure to preserve.

[00:34:09] Speaker 02:
Here we have a rule that generally gives district courts docket management power over motions for which there's no response.

[00:34:22] Speaker 02:
But here we're talking about a dispositive motion on the merits with preclusive effect.

[00:34:26] Speaker 02:
That is extremely strong medicine.

[00:34:29] Speaker 02:
And how do you square that with

[00:34:31] Speaker 02:
other provisions in the Federal Rules of Civil Procedure, like the rules that Judge Griffith was referring to, Rule 41 on involuntary dismissal, 55 on default, where even when something's going to be involuntarily dismissed, the court gives some process and sort of

[00:34:54] Speaker 02:
orders or cause or let's let's make sure that this really isn't going anywhere and it just seems anomalous to read 7B as giving this procedurally unfalsom power to the district court.

[00:35:10] Speaker 02:
It just doesn't square really with the scheme and with the priority that those rules reflect of disposing of cases on their merits.

[00:35:21] Speaker 01:
There is nothing in

[00:35:23] Speaker 01:
the plain language of Rule 12b6, which requires the court to make an independent determination, be it if there was an opposition file to the motion or not, that requires it to make an independent determination.

[00:35:38] Speaker 05:
And in that it differs from Rule 56, you're right.

[00:35:40] Speaker 05:
Absolutely.

[00:35:40] Speaker 05:
But judicial interpretation of 12b6 says the burden is on the movement, right?

[00:35:47] Speaker 05:
Burdens on the movement to show.

[00:35:49] Speaker 05:
You're right, the plain language does not, but it's been interpreted many times.

[00:35:54] Speaker 05:
To work in much of the way is rule 56, isn't it?

[00:35:57] Speaker 01:
And the defendants did argue on their motion to dismiss... You just said right to what I said, right?

[00:36:02] Speaker 01:
Well, I'm saying right to the fact that the plain language of Rule 12b6 is in stark contrast to the plain language of Rule 56, where Rule 56... The judicial interpretation makes them... I don't think the judicial interpretation makes them the same.

[00:36:15] Speaker 05:
I agree... The burden is not on the movement of 12b6 to show there's a failure to state a claim?

[00:36:21] Speaker 01:
I agree the burden is to show that there is a failure to state a claim that is plausible on its face.

[00:36:26] Speaker 01:
I also would argue that again under 7b,

[00:36:33] Speaker 01:
When plaintiffs' counsel failed to oppose those arguments, plaintiffs' counsel, in essence, was conceding that the arguments made by the defendants of failure to state a claim were valid, similar to... I missed that leap.

[00:36:47] Speaker 05:
When they failed to respond on time, you said they were then conceding.

[00:36:52] Speaker 05:
How do you get that?

[00:36:53] Speaker 05:
Because of the existence of Rule 7B?

[00:36:56] Speaker 01:
Well, yes, because of the existence of Rule 7B and because the arguments in the motion to dismiss

[00:37:02] Speaker 01:
are in essence unopposed, similar to the line of cases like I mentioned before, that if you fail to address a particular argument, it's deemed conceded.

[00:37:11] Speaker 01:
Going to Judge Pillard's point about notice, I think Rule 7b, Local Rule 7b, provides the notice to plaintiff's counsel.

[00:37:20] Speaker 01:
Plaintiff's counsel is obligated to be familiar with the court's rules.

[00:37:24] Speaker 01:
Rule 7b on its face says,

[00:37:26] Speaker 01:
If you fail to respond to a motion, the motion may be deemed conceded.

[00:37:31] Speaker 01:
That gives notice to plaintiff's counsel.

[00:37:34] Speaker 01:
Plaintiff was represented by counsel throughout this whole case.

[00:37:37] Speaker 03:
Well, we have to assume lawyers are reading all the rules.

[00:37:39] Speaker 03:
So they're also reading 12b6 and rule 56 and rule 41 and reading rule 7b in light of those other rules.

[00:37:48] Speaker 03:
So I don't think it's

[00:37:50] Speaker 03:
Fair to say that they had notice of this sort of death penalty was going to befall the case when he made this one mistake, and he did try to repair it.

[00:38:01] Speaker 03:
He didn't just, like the people in France, as far as I can tell from the opinion, did nothing.

[00:38:05] Speaker 03:
Absolutely nothing.

[00:38:06] Speaker 03:
He tried.

[00:38:06] Speaker 03:
He got extension motion in.

[00:38:08] Speaker 03:
All right, that wasn't done perfectly either, but the guy was trying.

[00:38:12] Speaker 01:
He did file an extension motion untimely.

[00:38:15] Speaker 01:
I agree.

[00:38:16] Speaker 01:
But the district court considered the extension motion, considered the reasons and the explanation set forth.

[00:38:27] Speaker 03:
Could you give me your example of when it would be an abuse of discretion?

[00:38:29] Speaker 01:
I think where the district court went

[00:38:32] Speaker 01:
completely outside the bounds of its authority, not that it had... That's no answer at all.

[00:38:38] Speaker 03:
That's saying it would be an abuse of discretion if they abused their discretion.

[00:38:41] Speaker 03:
So what I want to know is factually, when do you think it would be an abuse of discretion?

[00:38:47] Speaker 01:
I think if the district court has choices to make before it, and it chooses one choice over another choice, I don't believe that that's abuse of discretion, and I think that's what happened in this case.

[00:39:00] Speaker 01:
I'm gonna try one more time.

[00:39:01] Speaker 01:
Can you give me a factual scenario that would be an abuse of discretion?

[00:39:03] Speaker 01:
I think if the district court applied the wrong law, that would be an abuse of discretion, but that's not what happened in this case.

[00:39:11] Speaker 03:
If he were one minute late in filing his motion to dismiss, and the district court looked at all the factors and just said,

[00:39:17] Speaker 03:
I warned you.

[00:39:18] Speaker 03:
I run a tight ship.

[00:39:22] Speaker 03:
You're one minute late.

[00:39:24] Speaker 03:
That would not be an abuse of discretion.

[00:39:26] Speaker 03:
It's not an error of law.

[00:39:27] Speaker 01:
Well, I would argue that the district court acted within its discretion.

[00:39:30] Speaker 01:
It may be a harsh sanction, but the district court acted within its discretion.

[00:39:36] Speaker 01:
The Supreme Court does say that clients are held to the acts and omissions of their counsel.

[00:39:40] Speaker 01:
It may be an unfortunate result, but that is the law.

[00:39:44] Speaker 05:
And I think if the district court... So your answer is one minute, that would not be an abuse of discretion.

[00:39:48] Speaker 01:
No, I think if the district court weighed all the factors and balanced them as it deemed fit, then the district court exercised its discretion to consider the explanations and the rationales provided by the other party and came to the conclusion exercising its discretion, which it is afforded under the rules.

[00:40:08] Speaker 01:
Thank you, Your Honors.

[00:40:10] Speaker 05:
Thank you very much.

[00:40:12] Speaker 05:
Mr. King.

[00:40:17] Speaker 04:
Very quickly, I just wanted to, I think, just make two points.

[00:40:21] Speaker 04:
The first is to follow up on how to potentially distinguish box because I don't think I completely answer this before, but.

[00:40:28] Speaker 04:
Fox in Fox, the district court did.

[00:40:32] Speaker 04:
actually go to the merits on one of the counts.

[00:40:37] Speaker 04:
It was count four in that case, and the Fox opinion talks about the fact that even though the court could have passed on this count four for purposes of 12b6, the district court in Fox did in fact

[00:40:53] Speaker 04:
deal with at least one of the counts under 12b6.

[00:40:57] Speaker 03:
I would have thought your point would have been that the facts in Fox were far more egregious than what happened here and that there's no case that we've been able to find that Justin involved us a few weeks, which is not to dismiss the duty of lawyers to meet deadlines, but

[00:41:16] Speaker 04:
I mean, yes, Your Honor.

[00:41:18] Speaker 04:
Obviously, well, this is the point, though.

[00:41:21] Speaker 04:
The reason why I'm making that argument is because I do believe personally that the standard under 12b6 should be that a failure to oppose a motion to dismiss can't be conceded for failing to file an opposition.

[00:41:36] Speaker 04:
the appellant's position in my position.

[00:41:39] Speaker 03:
You don't mean that.

[00:41:40] Speaker 03:
You don't mean that if they found that it was an egregious pattern of misconduct.

[00:41:46] Speaker 03:
Do we have to say that Fox was wrong to say that the boom shouldn't have fallen on you?

[00:41:53] Speaker 04:
No.

[00:41:53] Speaker 04:
No, it's possible to say that this case is different, the facts are different.

[00:41:58] Speaker 03:
I don't think Fox ever filed anything.

[00:42:00] Speaker 03:
I don't know if anybody ever filed a motion.

[00:42:02] Speaker 04:
No, exactly, Your Honor.

[00:42:03] Speaker 04:
And it was an extremely long time period.

[00:42:07] Speaker 04:
And in that case, the case had been on a schedule.

[00:42:11] Speaker 04:
In this case, the case never even went to a schedule.

[00:42:14] Speaker 04:
There was no scheduling conference ever held in the case.

[00:42:18] Speaker 04:
But I just wanted to make the point, though,

[00:42:23] Speaker 04:
if you were to try to go beyond Fox, keep Fox intact, and say that you could still have a rule that says an unopposed motion to dismiss does not deem a complaint.

[00:42:36] Speaker 05:
No, we don't need to go that far.

[00:42:38] Speaker 05:
We can keep Fox intact and say this wasn't Fox.

[00:42:41] Speaker 04:
Yes, Your Honor, and the appellant would be certainly very happy with that conclusion as well.

[00:42:47] Speaker 04:
And I'll rest on that.

[00:42:51] Speaker 05:
Okay.

[00:42:51] Speaker 05:
The case is submitted.