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In Pace v. United Services Automobile Association, No. 05-cv-01562, 2007 WL 2022059 (D. Colo. July 9, 2007), U.S. District Magistrate Judge Michael J. Watanabe for the District of Colorado granted defendant’s  motion for attorney fees for plaintiff’s and his attorneys’ failure to appear at a settlement conference. Plaintiff’s attorneys argued that they failed to receive notice of the settlement conference because their office SPAM software filtered the email notice. Their IT administrator testified that he modified the settings to the SPAM filter to limit sexually explicit emails and that he never anticipated that these modifications would restrict emails from the Court. 

Using the standard established in Matter of Baker, 744 F.2d 1441 (10th Cir.1984), Judge Watanabe found that plaintiff’s counsel could not show that their failure to appear was “substantially justified” or “that other circumstances would make an award unjust.”  The Court stated that attorneys are responsible for establishing office procedures to ensure receipt of notices from the Court:  “It is incumbent upon attorneys to adopt internal office procedures that ensure the court’s notices and orders are brought to their attention once they have been received.”  The Court went on to indicate that it is the attorneys’ responsibility to monitor the progress of their cases and stated that to treat electronic notices as a “functional equivalent of junk mail” is unacceptable.

The Court did not hold plaintiff Pace negligent because he did not receive notice by his attorneys.

This article was prepared by Patti Perez of Puente International Consulting, San Diego, CA.