Metropolitan News-Enterprise


Wednesday, November 14, 2007


Page 3


Panel Chastises Judge Real Over ‘Unseemly Haste’


By a MetNews Staff Writer


A panel of the Ninth U.S. Circuit Court of Appeals chastised a U.S. district judge yesterday for refusing to vacate a dismissal of a case for plaintiff’s failure to appear at a hearing after the plaintiff demonstrated that the district court had not provided adequate notice of the hearing.

In a per curiam opinion by Judges Alex Kozinski and M. Margaret McKeown and Senior Judge A. Wallace Tashima, the court rebuked U.S. District Judge Manuel L. Real of the Central District of California for refusing to vacate his dismissal of Simon Navel Calderon’s case against IBEW Local 47 and Southern California Edison Co.

“The district judge’s unseemly haste in dismissing this case, and his failure to heed the perfectly plausible (and meritorious) explanation proffered by plaintiff in his motion for reconsideration, has cost the parties significant money and delay in pursuing this wholly unnecessary appeal,” the panel wrote.

Real dismissed the case after Calderon’s counsel failed to attend a show cause hearing on dismissal for Calderon’s failure to file a proof of service against Edison.  Calderon filed his complaint on Aug. 8, 2005 and served the IBEW, but he initially failed to serve Edison. 

The district court issued an order to show cause why the action should not be dismissed for failure of service, but only sent notice of the hearing via email.  Calderon’s counsel did not check his email regularly, so he failed to appear and Real dismissed for lack of prosecution.

Upon learning of the dismissal, Calderon served the complaint on Edison and moved to vacate the dismissal, but Real denied the motion without argument.

On appeal, the panel noted that the district court’s dismissal of the complaint could only have been based on Calderon’s counsel’s failure to attend the hearing, because the time period to serve Edison had not yet expired.

 “While failure to attend a scheduled hearing may justify the imposition of some sanction on the attorney and perhaps even the client, we doubt that the drastic remedy of dismissal could be justified by a single such event,” the panel wrote.

However, the panel concluded that it did not even need to consider whether Real abused its discretion in dismissing the action because the district court had not properly provided Calderon with adequate notice of the hearing.

It noted that service in the district was permitted by electronic means upon a judge’s specific designation as part of an experimental electronic filing program, but that no evidence indicated that Calderon’s case was part of that program. 

As a result, the panel said, the case was governed by Federal Rule of Civil Procedure 5, which provides for electronic service only upon a party’s consent.  Concluding that Calderon’s counsel had not consented to electronic service or otherwise had no reason to expect service via email, the panel reversed and remanded with an apology to Calderon.

“Justice suffers when judges act in such an arbitrary fashion,” it wrote.  “We apologize to the parties and admonish the district judge to exercise more care and patience in the future.”

The case is Calderon v. IBEW Local 47, No. 05-56937.


Copyright 2007, Metropolitan News Company