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Only in a distant parallel universe” would court strike a 15-minute late brief

Tim Kowal     February 8, 2023

Ordinarily, it would not be newsworthy that a U.S. District Court allowed a brief that was filed 15 minutes late. But Judge R. David Proctor not only refused to strike the late-filed brief: he ruled that striking a brief just because it was filed 15 minutes late would be absurd.

In the District Court ruling in Whitworth v. Mezrano, 2:20-cv00756 (S.D. Ala. Jan. 13, 2023), available at Above the Law, Judge Proctor noted that “There are no doubt many other instances when 15 minutes could make a world of difference,” such as 15 minutes extra time presenting oral argument, or running a marathon, or making a departing flight. “But, the electronic filing of an opposition brief in this court on a late Thursday afternoon is not one of them.”

Judge Proctor then sketched out a parody chambers scene in a “parallel universe” in which idle court clerks expectantly scan the wires in the waning minutes approaching 5:00 p.m., breathlessly awaiting a litigant’s brief, whereupon they commit and resolve to devote their evening to “reading — no, consuming and cherishing — every syllable of this filing.”

“Only in such a distant, parallel universe,” Judge Proctor concludes, would striking the late-filed brief “make any sense.”

Upshot: Next time you need to seek leave to file a late brief, consider referencing Judge Proctor’s observation that filing a brief late by a matter of minutes could only make a difference in “a distant, parallel universe.”

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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