KEVIN ROLLINS v. HOME DEPOT USA, INCORPORATED
No. 20-50736
United States Court of Appeals, Fifth Circuit
August 9, 2021
Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CV-259
Before HO, OLDHAM, and WILSON, Circuit Judges.
This is a cautionary tale for every attorney who litigates in the era of e-filing. Kevin Rollins brought suit against his employer for personal injury. The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions. But Rollins‘s counsel never saw the electronic notification of that motion. That‘s because, by all accounts, his computer‘s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed. As a result, Rollins did not file an opposition to the summary judgment motion. So the district court subsequently entered judgment against Rollins.
Rollins seeks relief from that judgment under
On appeal, Rollins additionally argues that a fact dispute precludes summary judgment. But he never presented that argument to the district court—not even in his
For these reasons, we affirm.
I.
Rollins was injured while moving a bathtub for his employer, Home Depot. He then sued Home Depot in state court. The case was subsequently removed to federal court.
Counsel for Rollins agreed to receive filings through the district court‘s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country. The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020.
On May 7, Home Depot filed its motion for summary judgment. Rollins‘s counsel contends—and Home Depot does not dispute—that the notification for that filing “was inadvertently filtered into a part of Rollins’ counsel‘s firm email system listed as ‘other,’ instead of the main email box where all prior filings in the case were received.” As a result, counsel did not see the electronic notification of Home Depot‘s motion. Nor did counsel learn of that motion when he contacted Home Depot‘s counsel a few days later to discuss the possibility of a settlement.
The scheduling order imposed a 14-day deadline to file and serve responses to any motions. After that deadline came and went without any response from Rollins, the district court reviewed the pleadings, granted Home Depot‘s motion for summary judgment, and entered final judgment on May 27.
Rollins filed a motion under
II.
The text of
Rollins contends that the district court abused its discretion when it denied his
This argument is squarely foreclosed under our precedent. In Trevino v. City of Fort Worth, the plaintiffs’ counsel failed to file a response to the defendant‘s motion to dismiss because, among other reasons, “defective antivirus software diverted court emails to a spam folder.” 944 F.3d 567, 570 (5th Cir. 2019) (per curiam). After the district court granted the defendant‘s unopposed motion to dismiss, the plaintiffs sought relief under
To be sure, we do not question the good faith of Rollins‘s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins‘s] counsel‘s ‘reasonable control.‘” Trevino, 944 F.3d at 571. Notice of Home Depot‘s motion for summary judgment was sent to the email address that Rollins‘s counsel provided.
In sum, the district court did not abuse its discretion in denying the
III.
Rollins‘s
“The terms waiver and forfeiture—though often used interchangeably by jurists and litigants—are not synonymous.” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017). “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.‘” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
A party forfeits an argument by failing to raise it in the first instance in the district court—thus raising it for the first time on appeal—or by failing to adequately brief the argument on appeal. See United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th Cir. 2017) (“Failure to raise a claim to the district court ‘constitutes a forfeiture, not a waiver, of that right for the purposes of appeal.‘“) (quoting United States v. Chavez-Valencia, 116 F.3d 127, 130 (5th Cir. 1997)); Norris v. Causey, 869 F.3d 360, 373 n.10 (5th Cir. 2017) (noting that a party forfeits an argument by failing to adequately brief it);
Rollins forfeited his argument that a fact dispute precluded summary judgment
Of course, there are exceptions. See Bayou Liberty Ass‘n v. U.S. Army Corps of Eng‘rs, 217 F.3d 393, 398 (5th Cir. 2000). Jurisdictional arguments are one obvious exception. “[S]ubject-matter jurisdiction, because it involves a court‘s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002).
In addition, we‘ve said that “an issue will not be addressed when raised for the first time on appeal unless it is a purely legal matter and failure to consider the issue will result in a miscarriage of justice.” Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450, 453 (5th Cir. 2008). See also Pegues v. Morehouse Par. Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (“It is axiomatic that an issue not raised in the trial court will not be considered on appeal unless it involves a pure question of law, and our refusal to address it would result in a miscarriage of justice.“).
But what constitutes a pure legal question or a miscarriage of justice is “a question with no certain answer.” Essinger, 534 F.3d at 453. As a result, appellate courts have considerable discretion in deciding whether to consider an issue that was not raised below.
As commentators have observed, courts of appeals use this discretion inconsistently. See, e.g., Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447, 463 (2009) (“Federal circuit courts . . . act with little rhyme or reason” when deciding to consider forfeited arguments); Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 SAN DIEGO L. REV. 1253, 1260 (2002) (noting “[t]he absence of a consistent principle“); Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 VAND. L. REV. 1023, 1061 (1987) (analyzing cases and concluding that “[t]he only consistent feature of the current system is its inconsistency“).2
We must be on guard for the risk of judicial bias when it comes to discretionary practices such as addressing forfeited issues. As Justice Clarence Thomas has observed, “judges should adopt principles . . . that reduce judicial discretion. Reducing discretion is the key to fostering judicial impartiality. The greater the room for judicial discretion, the greater the temptation to write one‘s personal opinions into the law.” Clarence Thomas, Francis Boyer Lecture at the AEI Annual Dinner: Be Not Afraid (Feb. 13, 2001), available at http://www.aei.org/publication/be-not-afraid. See also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1180 (1989) (“Only by announcing rules do we hedge ourselves in.“).
It would surely be unacceptable, for example, if courts granted motions for extension of deadlines only for prosecutors and not for criminal defendants. Addressing forfeited issues in a biased manner is no different. Courts should not selectively address forfeited arguments just because they have sympathy for a particular litigant.
We see no principled basis for addressing Rollins‘s forfeited argument here.
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For the foregoing reasons, we affirm.