The Louisiana Second Circuit has promulgated a new local rule authorizing e-filing, effective November 1, 2021. To read or download a copy of the new rule and the e-filing procedure, follow this link.
Last July, I gave a CLE presentation on making every part of a brief persuasive—even the cover. This presentation built on one I participated in last March with Kelly Becker and Judge Sandra Cabrina Jenkins (La. 4th Cir.). While the March presentation was based on the Louisiana rules, the July presentation was based on the federal rules. For anyone who’s interested, here are links to the July version of the written materials and slide presentation.
After I wrote my last blog post, summarizing the status of the Louisiana Courts of Appeal, I was reminded of an order issued yesterday by the Fourth Circuit, superseding its prior order closing the court indefinitely. According to yesterday’s order, the Fourth Circuit will remain closed through September 19 and will reopen on September 20. Any filings due during the closure will be timely if filed by September 27. To view the Fourth Circuit's September 7 order, follow this link.
In response to Hurricane Ida, the Louisiana First, Second, and Fifth Circuits have issued orders extending deadlines to September 27. With those orders in mind, here is a circuit-by-circuit breakdown of the state of affairs in our Courts of Appeal:
- The First Circuit is closed through September 19. Any filings otherwise due between August 26 and September 26 will be timely if filed by September 27.
- The Second Circuit is open and will hold oral arguments on September 20 and 21. But filings due through September 24 will be timely if filed by September 27.
- To my knowledge, the Third Circuit has not issued any orders related to Hurricane Ida since August 27. My guess is that the court will issue an order conforming its deadlines to the governor’s executive order of September 6.
- The Fourth Circuit remains closed indefinitely. The Fourth Circuit is closed through September 19 and will reopen on September 20. Filings otherwise due during the closure period will be timely if filed by September 27.
- The Fifth Circuit is closed through September 19. All filings due between August 27 and September 19 will be timely if filed by September 27.
The Fourth and Fifth Circuit orders do not address filings due on September 20 through 24. The Fifth Circuit’s order was issued on September 4, two days before Governor Edwards’s September 6 executive order that suspended all legal deadlines through September 24. The Fourth Circuit’s order was issued on September 7, the day before the governor’s executive order, but may have been in the works before the court was aware of the governor’s executive order.
Here is a rundown of recent orders by the Louisiana Supreme Court and Governor Edwards responding to the aftermath of Hurricane Ida.
Yesterday, Governor Edwards signed Executive Order 170 JBE 2021. Section 2.1 of this order suspends “legal deadlines in all legal proceedings in all courts, administrative agencies, and boards ... until September 24, 2021. To read or download a copy of this order, follow this link.
Last Tuesday, the Louisiana Supreme Court issued two orders:
- An order closing the Louisiana Supreme Court through Sunday, September 19, with reopening scheduled for September 20. Any filings that otherwise would be due during the closure period will be timely if filed no later than September 20. I don’t know whether Executive Order 170 JBE 2021 supersedes this order by tacking on an extra four days. But recent experience with the early days of the COVID-19 emergency indicate that the Louisiana Supreme Court may issue a follow-up order to conform its own deadlines to the governor’s order. To view or download the Supreme Court’s order, follow this link.
- An order extending prescription, peremption, and abandonment periods for thirty days from the governor’s August 26, 2021 declaration of a state of emergency. The authority for this order comes from code articles enacted last year. Code of Civil Procedure article 562 authorizes the Supreme Court to extend the abandonment period for up to 90 days follow the governor’s declaration of a state of emergency or disaster. Civil Code article 3472.1 authorizes the Supreme Court to extend prescriptive or peremptive periods for up to 90 days following a declaration of emergency or disaster. To view or download a copy of this order, follow this link.
Greetings, everyone. For the first time since Hurricane Ida hit, I finally have a WiFi connection. So let’s catch up on the status of the Louisiana Supreme Court and our appellate courts.
- The Louisiana Supreme Court is closed through Sunday, September 19, and is scheduled to reopen on Monday, September 20. Any filings that otherwise would have been due before September 20 will be deemed timely if filed by September 20. Here’s a link to the order.
- The Louisiana First Circuit is closed through Friday, September 3. But filing deadlines are extended to September 27. Here’s a link to the order.
- The Louisiana Second and Third Circuits were closed on Monday, August 30. They’re now re-opened for business as usual.
- The Louisiana Fourth and Fifth Circuits are closed until further notice. In the Fourth Circuit, anything due while the court is closed will be timely if filed within 3 days after the court resumes normal operations. Here’s a link to the Fourth Circuit's order. In the Louisiana Fifth Circuit, anything due while the court is closed will have to be filed no later than the day the court reopens. Here’s a link to the La. Fifth Circuit’s order.
- The U.S. Fifth Circuit has cancelled all proceedings scheduled for August 30 through September 2. The court has also extended all pending deadlines by seven days, except for deadlines in expedited appeals. Here’s a link to the U.S. Fifth Circuit’s order.
If you’re looking for an advanced appellate educational program, check out the Appellate Judges Education Institute's Annual Summit, to be held on November 11 through 14, 2021 in Austin, Texas. In addition to its top-flight program, the AJEI Summit is an opportunity for appellate judges and lawyers to meet and socialize. For an overview of the program, follow this link. To see the schedule, follow this link.
For Louisiana lawyers, this page says that the AJEI is applying for CLE accreditation in Louisiana. I don’t know whether they’re applying for specialized appellate CLE accreditation.
Here is “a cautionary tale for every attorney who litigates in the era of e-filing.” In federal court, a defendant in a personal-injury suit filed a motion for summary judgment. The court’s e-filing system sent an email to the plaintiff’s counsel with the docketing notice and a hyperlink to the defendant’s motion; this email constituted service of the motion. Unfortunately for the plaintiff and his attorney, the attorney’s email system sent that email to a spam folder instead of the attorney’s in-box. Result: the court granted the summary judgment as unopposed and, later, denied the plaintiff’s Rule 59 motion. The U.S. Fifth Circuit affirmed. The Fifth Circuit reasoned that the email glitch was not grounds for relief under Fed. R. Civ. P. 59 because plaintiff’s counsel was in the best position to make sure that his own email system was functioning properly. The Fifth Circuit also suggested that the plaintiff’s counsel could have learned about the motion by monitoring the district court’s PACER docket. Rollins v. Home Depot USA, Inc., No. 20-50736 (5th Cir. Aug. 9, 2021).
In wandering around the Louisiana Supreme Court’s web site today, I came across the Court’s 2020 Annual Report. The report includes statistical data about the volume and disposition of cases in the Supreme Court and the Courts of Appeal. If you want to know the odds of having your writ application granted, that’s where you’ll find the numbers. If you want to research statistics from prior years, follow this link to prior annual report going back to 1998.
Yesterday the Louisiana Supreme Court accepted a pair of certified questions from the U.S. Fifth Circuit. The underlying case, Doe v. Mckesson, arose from a Black Lives Matter protest that, according to the complaint, descended into a riot. The complain alleges that one of the protesters (identity unknown) threw a chunk of concrete, hitting a police officer in the head and causing brain damage and other injuries. The officer sued DeRay Mckesson as the alleged organizer of the protest for negligently triggering the riot. The certified questions:
- Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party?
- Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana’s Professional Rescuer’s Doctrine bars recovery under the facts alleged in the complaint?
The case has had an interesting procedural history. The district court dismissed the suit on First Amendment Grounds. A three-judge panel of the Fifth Circuit reversed. The equally divided Fifth Circuit denied en banc rehearing. Mckesson petitioned the U.S. Supreme Court for certiorari, raising the question “whether the theory of liability adopted by the Fifth Circuit violates the First Amendment.” The U.S. Supreme Court vacated the panel opinion. The Court concluded that “the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented.” Translation: “The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place.” The Court then wrote for four paragraphs extolling the benefits of certifying difficult state-law questions to the state supreme court, and remanded “for further proceedings consistent with this opinion.” Consistently with the Supreme Court’s opinion, the Fifth Circuit certified the questions, and the Louisiana Supreme Court accepted them.