Did Lance Armstrong's Legal Team Miss a Critical Filing Deadline? Why Strict Compliance With Local Rules is Crucial.
UPDATE: Judge Sam Sparks gave Lance Armstrong until midnight tonight, August 3, to file his response. The Court DENIED Armstrong's request for an extension until August 6. Read Lance v. USADA, et al. Order Granting Extension Until Aug 3, 2012 HERE. The Court was mindful that USADA's Motion to Dismiss is a dispositive motion, and stated that due to the finality of such a ruling on the Motion, Armstrong should be afforded the opportunity to fully brief the issue.
[Our sister blog The Boulder Criminal Law Advisor] has been following and writing (HERE and HERE) about the Lance Armstrong v. USADA, et al. case since it was filed. Yesterday, in Lance Armstrong v. USADA, et al., Mr. Armstrong's legal team filed a Consent Motion Extension for Extension of Time and Request for Further Extension of Time wherein he requested until August 6, 2012 to respond to USADA's Motion to Dismiss. Armstrong's lawyers believed they had until August 6, 2012 to respond - USADA contends they had until August 2, 2012 and today filed its Response to Motion for Extension asking the Court to deny the Motion for Extension. USADA supported its Response with exhibits of last minute emails between Sean Breen, one of Lance Armstrong's lawyers, and USADA attorney Bill Bock that show Breen was mistaken on the calculation of time.
So, when was the response due? Did Armstrong's legal team screw up? Let's go through the analysis.
USADA filed its Motion to Dismiss on July 19, 2012. A motion to dismiss is a dispositive motion. Under USDC WD Texas Local Rule CV-7(e)(2) which states: “A response to a dispositive motion shall be filed not later than 14 days after the filing of the motion,” Armstrong had 14 days to respond to USADA’s Motion. USDC WD Texas Local Rule CV-6 states “In computing any time period in any civil case, the provisions of Federal Rule of Civil Procedure 6, as amended, shall be applied.” Thus, Per Fed. Civ. Rule 6(a)(1)(A) you must “exclude the day of the event that triggers the period;” – in this case, the 19th of July. Therefore, the 14 day time period started to run on the 20th of July. Per Fed. Civ. Rule 6(a)(1)(B), you “count every day, including intermediate Saturdays, Sundays, and legal holidays…” so, counting 14 days puts us at a due date of August 2, 2012.
NOW here is where things get interesting… we’re not done adding time. Fed. Civ. Rule 6(d) is called “Additional Time After Certain Kinds of Service.” And, the Rule states: “When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).” What does this mean? Let’s go to Fed. Civ. Rule 5. Generally, Rule 5(a) required USADA to serve the Motion to Dismiss on Lance Armstrong – which it did, under 5(b)(E) by “sending it by electronic means if the person consented in writing—in which event service is complete upon transmission…” when it filed it's Motion with the Court on July 19th. Confused yet? Don’t be. Revisiting Rule 6(d) reminds us that because USADA made service under 5(b)(E), Lance Armstrong gets the addition time of three (3) days in which to respond. Making his response due on Sunday, August 5, 2012 -- BUT, per Fed. Civ. Rule 6(a)(1)(C), which states: "... but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday," the response is due on Monday, August 6, 2012 -- essentially, papers aren't due on weekends or holidays.
So, Armstrong is good right? WRONG. Look again at USDC WD Texas Local Rule CV-7(e)(2) which states: “A response to a dispositive motion shall be filed not later than 14 days after the filing of the motion,” Armstrong had 14 days to respond to USADA’s Motion from the filing- not from the service. So Local CV-6 is inapplicable and therefore the above analysis is irrelevant. Hate lawyers yet? So, the entire analysis Armstrong's lawyers went through, while correct, did not apply in this case.
Not only is this terribly embarrassing for Armstrong's legal team, there is no question this a huge set back for Armstrong - the Court could very easily refuse to permit him to file a Response at all. UPDATE: Court granted extension until Midnight August 3, 2012.
Moreover, this is a great lesson on the sheer importance of familiarizing yourself with the peculiarities of the Local Rules in each court in which you practice. Such a miscalculation could expose Armstrong's lawyers to a claim of legal malpractice. Missing a deadline is serious business - and its avoidable. However, even the sharpest lawyers may accidentally miss deadlines - in this case, laziness was not to blame. I am quite confident there was great attention paid to the above analysis. But, they missed it. It would be good practice to always forget about the extra three days under Fed. Civ. Rule 6 when calculating your due dates - if you have 7 days, file in 7 ... 14? file in 14 ... better safe than sorry.
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