Robinson v. Wix Filtration Corp. LLC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS ROBINSON, 

Plaintiff-Appellant,

v.

WIX FILTRATION CORPORATION LLC;

DANA-SPICER, INCORPORATED, d/b/a  No. 09-1167

Wix Filtration Products Division;

AFFINIA GROUP, INCORPORATED,

d/b/a Wix Filtration Products

Division,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Martin K. Reidinger, District Judge.

(3:07-cv-00414-MR-CH)

Argued: December 3, 2009

Decided: March 26, 2010

Before KING, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the

majority opinion, in which Judge Davis joined. Judge Davis

wrote a separate concurring opinion. Judge King wrote a dis-

senting opinion.

2 ROBINSON v. WIX FILTRATION CORP.

COUNSEL

Charles A. Everage, Charlotte, North Carolina, for Appellant.

Jeffrey D. Keister, MCANGUS, GOUDELOCK & COURIE,

LLC, Charlotte, North Carolina, for Appellees.

OPINION

DUNCAN, Circuit Judge:

Thomas Robinson ("Appellant") appeals the denial of his

post-judgment motions seeking relief from the district court’s

entry of summary judgment against him. Appellant had

moved for relief from the judgment pursuant to Federal Rule

of Civil Procedure 60(b), or, in the alternative, to alter or

amend the judgment pursuant to Federal Rule of Civil Proce-

dure 59(e). The district court construed Appellant’s motion as

one solely seeking relief pursuant to Rule 59(e), rather than

one also seeking relief under Rule 60(b), and determined that

altering or amending the judgment was not necessary to pre-

vent manifest injustice in this case. Appellant argues that the

district court erred in its analysis by failing to consider his

motion pursuant to Rule 60(b), and that it erred in denying the

motion pursuant to Rule 59(e). For the reasons that follow, we

affirm.

I.

On August 29, 2007, Appellant filed a two-count civil

action against his former employer, Wix Filtration Corpora-

tion LLC, and related corporate entities, Dana-Spicer, Inc.

d/b/a Wix Filtration Products Division, and Affinia Group,

Inc. d/b/a Wix Filtration Products Division (collectively, "Ap-

pellees"), in the North Carolina Superior Court, alleging

wrongful termination in violation of North Carolina public

policy, and retaliation in violation of the Fair Labor Standards

ROBINSON v. WIX FILTRATION CORP. 3

Act, 29 U.S.C. § 215(a)(3). On October 1, 2007, Appellees

removed the case to the Western District of North Carolina.

Shortly thereafter, on December 18, 2007, a magistrate

judge, acting pursuant to Federal Rule of Civil Procedure 16

and the Local Rules of the Western District of North Carolina,

issued a pretrial order and case management plan. In that

order, the magistrate judge set August 8, 2008, as the deadline

to file all dispositive motions. Appellant acknowledges

receiving that order. In compliance with the order, on August

8, 2008, Appellees filed a motion for summary judgment.

Appellant, however, never filed a response, and on December

3, 2008, after reviewing the entire record in this case, the dis-

trict court granted Appellees’ motion.

On December 12, 2008, Appellant filed a motion for relief

from the judgment pursuant to Federal Rule of Civil Proce-

dure 60, or in the alternative, to alter or amend the judgment

pursuant to Federal Rule of Civil Procedure 59, asserting the

same two grounds for each rule. First, Appellant claimed that

although his counsel utilizes the court’s Case Manage-

ment/Electronic Case Filing ("CM/ECF") system, which gen-

erates a Notice of Electronic Filing ("NEF") whenever a

document is filed,1 his counsel never received electronic

notice of Appellees’ motion for summary judgment because

1

CM/ECF is a comprehensive case management system that allows

courts to maintain electronic case files and offer electronic filing over the

Internet. Whenever a document is filed, the CM/ECF system automatically

generates a NEF. The NEF is an e-mail message containing a link to the

filed document to registered attorneys involved with the case. The link

allows e-mail recipients to access the electronically filed document once

free of charge. The link expires after fifteen days, after which attorneys

can still access the document for a fee. Thus, litigants receive one free

copy of documents filed electronically in their cases, which they can save

or print for their files. Additional copies are available to attorneys and the

general public for viewing or downloading at eight cents per page. See

generally Jessica Belskis, Electronic Case Filing: Is Failure to Check

Email Related to an Electronically Filed Case Malpractice?, 2 Shidler J.

L. Com. & Tech. 13 (2005).

4 ROBINSON v. WIX FILTRATION CORP.

counsel’s computer system experienced several problems dur-

ing the summer months of 2008 that caused him not to receive

various e-mails.2 Appellant explained that his counsel’s com-

puter was afflicted by a malware virus and that his counsel’s

firm’s domain name had temporarily expired when the motion

for summary judgment was filed.3 In light of these computer

problems, Appellant urged the district court to relieve him

from the judgment, or in the alternative, to alter or amend the

judgment.4 Second, Appellant claimed that there are genuine

issues of material fact which should preclude the granting of

summary judgment, and thus, he argued that the judgment

should not stand.

On January 13, 2009, the district court denied Appellant’s

motion. The court construed the motion as one seeking relief

pursuant to Rule 59(e) exclusively, and gave no consideration

to Rule 60(b).5 After noting that nothing in the CM/ECF sys-

2

He also alleged that Appellees had not served the motion for summary

judgment by mail or other means "as is the general practice of other attor-

neys in the Western District of North Carolina." J.A. 100. We note that the

Local Rules for the Western District of North Carolina require "[a]ll docu-

ments submitted for filing in this district [to] be filed electronically unless

expressly exempted from electronic filing either by the Administrative

Procedures or by the assigned judge." W.D.N.C. R. 5.2.1(B).

3

The expired domain name apparently caused Appellant’s attorney and

his firm to be temporarily disabled from utilizing the firm’s e-mail. Even

after the e-mail domain name was re-registered, the e-mail accounts asso-

ciated with the domain name were "blacklisted" causing further e-mail

problems.

4

At oral argument, Appellant’s counsel explained that he made the affir-

mative decision not to contact opposing counsel after the deadline for fil-

ing dispositive motions had passed because he did not want to remind

them of the deadline for filing dispositive motions.

5

In that order, the district court made the following findings: (1) "Plain-

tiff’s counsel knew by virtue of the entry of the Pretrial Order and Case

Management Plan on December 18, 2007 that there was a motions dead-

line of August 8, 2008 in this case"; (2) "Plaintiff’s counsel reasonably

should have anticipated some type of dispositive motion might be filed as

of that date"; (3) "Plaintiff’s counsel also knew at the time of the motions

ROBINSON v. WIX FILTRATION CORP. 5

tem indicated that Appellant failed to receive notice of Appel-

lees’ electronic filing, the court denied the motion on Rule

59(e) grounds, finding that the "computer problems did not

relieve Plaintiff’s counsel of his obligation to continue to

monitor the docket in this case," J.A. 183, and that "altering

or amending the Judgment is not necessary to prevent mani-

fest injustice," id. at 185. This appeal followed.

II.

On appeal, Appellant challenges the denial of his motion

for relief from the judgment pursuant to Rule 60(b), or in the

alternative, to alter or amend the judgment pursuant to Rule

59(e). His argument is twofold. First, he asserts that the dis-

trict court erred in denying the motion pursuant to Rule 59(e).

Second, he argues that the district court erred in failing to ana-

lyze his motion under Rule 60(b). We address each contention

below.

A.

We first consider whether the district court erred in denying

Appellant’s motion pursuant to Rule 59(e). This court reviews

the denial of a Rule 59(e) motion under the deferential abuse

of discretion standard. Ingle ex rel. Estate of Ingle v. Yelton,

439 F.3d 191, 197 (4th Cir. 2006). Rule 59(e) provides that

a court may alter or amend the judgment if the movant shows

deadline that he and other members of his firm were experiencing prob-

lems receiving . . . emails" (4); "Plaintiff’s counsel apparently failed to

check the Court’s docket to see if any activity occurred during this time

period for which he had not received email notification"; (5) "Plaintiff’s

counsel also apparently failed to check with opposing counsel to see if any

filings had been made during this time"; (6) had counsel checked the

docket or contacted opposing counsel or the court, "counsel would have

learned that a dispositive motion had been filed"; and (7) there was no evi-

dence "of an error in the docketing of the Defendants’ Motion in the

Court’s ECF system." J.A. 184-85.

6 ROBINSON v. WIX FILTRATION CORP.

either (1) an intervening change in the controlling law, (2)

new evidence that was not available at trial, or (3) that there

has been a clear error of law or a manifest injustice.6 Id.

Appellant only argues that there has been a manifest injustice,

and thus, we need not consider the other two prongs of this

rule.

Appellant argues that his counsel’s computer problems pre-

vented him from presenting his meritorious opposition to the

Appellees’ motion, thereby creating a manifest injustice. He

insists that without this response, the district court was left

without the kind of accurate and full record necessary for

adjudication of his claim, and that it would be a manifest

injustice to allow "‘a ruling based on an erroneous and inade-

quate record to stand.’" Appellant’s Br. at 18 (quoting EEOC

v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110,

112 (4th Cir. 1997)). He thus contends that the district court

abused its discretion in denying his motion. We disagree.

We can hardly say that the district court abused its discre-

tion in declining to vacate its judgment to prevent "manifest

injustice" given that Appellant’s failure to receive notice of

the motion resulted from his counsel’s conscious choice not

to take any action with respect to his computer troubles. As

the district court found, because a pretrial order was entered

on December 18, 2007, establishing August 8, 2008, as the

deadline for filing dispositive motions, Appellant’s counsel

knew full well that the deadline for dispositive motions was

pending. See J.A. 184. Also, "Plaintiff’s counsel . . . knew . . .

that he and other members of his firm were experiencing

problems receiving . . . emails," J.A. 184, and that, pursuant

6

We recognize that on December 1, 2009, the Federal Rules of Civil

Procedure were amended. As a general rule, the Supreme Court has

advised that amendments to the Federal Rules should not apply retroac-

tively. See Landgraf v. USI Film Prods., 511 U.S. 244, 275 n.29 (1994).

We therefore apply the pre-December 1, 2009, version of the Federal

Rules.

ROBINSON v. WIX FILTRATION CORP. 7

to the local rules of practice and procedure, any notice of

docket activity would arrive through e-mail, see W.D.N.C. R.

5.2.1(B) (requiring that "[a]ll documents submitted for filing

. . . be filed electronically unless expressly exempted from

electronic filing either by the Administrative Procedures or by

the assigned judge"). Finally, neither the district court nor

Appellees had reason to know about Appellant’s counsel’s

computer troubles. See J.A. 179-80 ("There is nothing in the

ECF system to indicate that the transmission of the[ ] NEF’s

to the Plaintiff’s counsel was not successful."). Despite all of

this, Appellant’s counsel deliberately chose not to contact

anyone. See J.A. 184.

Only Appellant’s counsel was in a position to protect

Appellant from precisely what occurred here; neither the dis-

trict court nor Appellees had reason to know that Appellant

had not received notice of the motion, especially since noth-

ing in the CM/ECF system indicated that Appellant failed to

receive the filing. See W.D.N.C. R. 5.3(A) (recognizing that

"[i]ssuance of the . . . NEF . . . constitutes proof of service of

the filed document upon all registered users"); see also J.A.

179, 185 (noting that "[a] NEF generated by the Court’s ECF

system indicates that notice of each of these documents was

electronically mailed to Plaintiff’s counsel on August 8,

2008," and finding that there is a "lack of any evidence of an

error in the docketing of the Defendants’ Motion in the

Court’s ECF system"). Knowing that dispositive motions

were due on August 8, 2008, Appellant’s counsel had good

reason, after realizing he was experiencing computer prob-

lems, to check the court’s docket after such date or contact the

court and opposing counsel to notify them of his computer

troubles. Had Appellant’s counsel done either of these two

things, he would have discovered the motion for summary

judgment before judgment was entered.7 See Fox v. Am. Air-

7

We do not, as the dissent suggests, impose upon lawyers a duty to

monitor court dockets. Instead, as the concurring opinion recognizes, we

8 ROBINSON v. WIX FILTRATION CORP.

lines, 389 F.3d 1291, 1296 (D.C. Cir. 2004) (affirming the

district court’s decision not to grant a Rule 59(e) motion since

"the dismissal of the[ ] suit might have been avoided through

the exercise of due diligence"); see also J.A. 184-85 ("Had

counsel done either of these things at any point in the nearly

four months between the time that the Motion for Summary

Judgment was filed and the Court entered its Order, counsel

would have learned that a dispositive motion had been filed,

and he could have taken steps to respond to the motion in a

proper fashion."). Instead, Appellant’s counsel strategically

chose not to call opposing counsel after the deadline for filing

dispositive motions had passed because he did not want to

alert them to the court’s deadline. More amazingly, he chose

not to check with the district court either. In other words,

Appellant’s counsel made the affirmative decision to remain

in the dark.

merely acknowledge the existence of circumstances in which "lawyers

have an obligation to their clients, to the profession, and to the court to pay

attention." Concurring Op. at 18. Computer inaccessibility of which only

counsel is aware, in a district requiring electronic filing, and during a time

frame in which counsel is aware that dispositive motions are due, is cer-

tainly such a circumstance. The Model Rules of Professional Conduct pro-

mulgated by the American Bar Association support our view that

Appellant’s counsel had an obligation to his client to be attentive toward

the litigation. Rule 1.3 provides that "[a] lawyer shall act with reasonable

diligence and promptness in representing a client." Model Rules of Prof’l

Conduct R. 1.3. See also N.C. Rules of Prof’l Conduct R. 1.3 & cmt. 3

(adopting the Model Rule and noting that "[p]erhaps no professional short-

coming is more widely resented than procrastination" given that "[a] cli-

ent’s interests often can be adversely affected by the passage of time or

the change of conditions"). Similarly, Rule 1.4(a)(4) requires lawyers to

"keep the[ir] client[s] reasonably informed about the status of the[ir] mat-

ter[s]." Model Rules of Prof’l Conduct R. 1.4(a)(4). See also N.C. Rules

of Prof’l Conduct R. 1.4 cmt. 3 (adopting the Model Rule and noting that

"the lawyer [is required to] keep the client reasonably informed about the

status of the matter, such as significant developments affecting the timing

or the substance of the representation").

ROBINSON v. WIX FILTRATION CORP. 9

This strategic decision, along with Appellant’s counsel’s

inaction, supports the district court’s implicit conclusion that

Appellant’s counsel opted to engage in willful blindness. See

J.A. 184-85. The consequences stemming from this choice,

however, cannot be classified as manifestly unjust towards

Appellant.8 As both the Supreme Court and our circuit have

consistently recognized, a party voluntarily chooses his attor-

ney as his representative in the action, and, thus, he cannot

later "avoid the consequences of the acts or omissions of this

freely selected agent." Link v. Wabash R.R. Co., 370 U.S. 626,

633-34 (1962) (finding that the district court did not abuse its

discretion in dismissing a case, where the petitioner’s counsel

failed to appear at a duly scheduled pretrial conference and

had been deliberately proceeding in dilatory fashion); Univer-

sal Film Exchs., Inc. v. Lust, 479 F.2d 573, 577 (4th Cir.

1973); see also Gayle v. United Parcel Serv., Inc., 401 F.3d

222, 226-27 (4th Cir. 2005) (finding "that attorney negligence

— including allowing a client’s case to fall through the cracks

— is [not] . . . an ‘extraordinary circumstance’" justifying

equitable tolling"). Rather, "a civil plaintiff may be deprived

of his claim if he failed to see to it that his lawyer acted with

dispatch in the prosecution of his lawsuit." Link, 370 U.S. at

634 n.10.

8

The dissent argues that the district court abused its discretion in deny-

ing Appellant’s Rule 59(e) motion particularly since "the summary judg-

ment award was premised on the facts being deemed ‘undisputed’ solely

because Robinson did not respond to the summary judgment motion." Dis-

senting Op. at 30. Yet, we have previously held that, in considering a

motion for summary judgment, the district court "must review the motion,

even if unopposed, and determine from what it has before it whether the

moving party is entitled to summary judgment as a matter of law." Custer

v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993) (emphasis

added). "Although the failure of a party to respond to a summary judgment

motion may leave uncontroverted those facts established by the motion,"

the district court must still proceed with the facts it has before it and deter-

mine whether the moving party is entitled to judgment as a matter of law

based on those uncontroverted facts. Id. The district court here did exactly

as Custer requires: it carefully considered the record before it, and from

that record, it determined that Appellees were entitled to judgment as a

matter of law. We cannot fault the district court for acting as our precedent

requires.

10 ROBINSON v. WIX FILTRATION CORP.

Accordingly, because Appellant’s counsel was willfully

blind to whether the opposing side had filed a dispositive

motion, see J.A. 184-85, we cannot say that the district court

abused its discretion in declining to vacate its judgment to

prevent "manifest injustice."9 Importantly, in doing so we do

9

The dissent suggests that Appellant, in his opening brief, argued that

the district court abused its discretion when it failed to consider in its Rule

59(e) manifest injustice analysis whether Appellant had a meritorious

opposition to Appellees’ motion for summary judgment. The dissent is

simply inaccurate. Section I of the opening brief is entitled, "The Trial

Court Abused Its Discretion in Failing to Consider Appellant’s Post-

Judgment Motion Pursuant to Rule 60(b) Analysis," and goes on to argue,

at length, that Dove v. CODESCO, 569 F.2d 807 (4th Cir. 1978), required

the district court to consider only Appellant’s Rule 59(e) arguments and

did not allow the court to "examine Appellant’s Rule 60(b) arguments,"

primarily that "Appellant had a meritorious defense." Appellant’s Br. at 14

(emphasis added). Thus, in that Section, Appellant urges this court to

overturn CODESCO. Nowhere in that Section does Appellant suggest that

the district court should have considered Appellant’s meritorious opposi-

tion in its Rule 59(e) analysis. On the contrary, Appellant concedes that

CODESCO barred the district court from considering his meritorious

opposition. See Appellant’s Br. at 17 ("The prejudicial effect of the

CODESCO rule in this instant case was that it prevented the District Court

from considering and making findings of whether . . . a meritorious

defense existed to justify the vacation of the challenged order."). Simi-

larly, in Section II, Appellant argues that his counsel’s computer problems

prevented him from presenting his meritorious opposition to the Appel-

lees’ motion, thereby creating a manifest injustice, not that the district

court should have considered his meritorious opposition in its Rule 59(e)

analysis. Finally, in Section III, Appellant contends that the district court

should have considered his Rule 60(b) arguments and laments that "the

District Court[,] . . .[by] apply[ing] a Rule 59(e) analysis," could not "con-

sider the prerequisite issue of meritorious defense" found in Rule 60(b).

Appellant’s Br. at 26. Nowhere in his brief does Appellant propound and

legally support the argument that the district court should have considered

his meritorious opposition in its Rule 59(e) analysis. See Fed. R. App. P.

28(a)(9)(A) (requiring the argument to contain "appellant’s contentions

and the reasons for them, with citations to the authorities . . . on which the

appellant relies").

It was at oral argument that Appellant suggested, for the first time, that

the district court abused its discretion when it failed to consider in its Rule

59(e) manifest injustice analysis whether Appellant had a meritorious

opposition. It is the practice of this court, however, subject to certain

exceptions not applicable here, not to consider contentions that the parties

have not raised in the briefs, but instead have made for the first time

ROBINSON v. WIX FILTRATION CORP. 11

not, as our good colleague in dissent suggests, sponsor and

at oral argument. See Goad v. Celotex Corp., 831 F.2d 508, 512 n.12 (4th

Cir. 1987) (declining to consider a point because it was not raised in the

briefs); see also United States v. Williams, 2 F. App’x 284, 288-89 (4th

Cir. 2001) (same). Nevertheless, because the dissent finds this argument

dispositive, we address it here.

We do not believe that the district court abused its discretion in failing

to consider whether the Appellant had a meritorious opposition. We have

previously held that Rule 60(b) requires courts to consider whether the

movant has a meritorious defense. Dowell v. State Farm Fire and Cas.

Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993); Smith v. Bounds, 813 F.2d

1299, 1304 (4th Cir. 1987); Compton v. Alton S.S. Co., Inc., 608 F.2d 96,

102 (4th Cir. 1979), aff’d en banc, 841 F.2d 77 (4th Cir. 1988) (per

curiam). This requirement has never before been extended to Rule 59(e)

motions. Thus, we would be hard pressed to say that the district court

abused its discretion in failing to apply a factor that has not been "judi-

cially recognized." James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993).

More importantly, requiring a district court to consider a meritorious

opposition in its manifest injustice analysis would invert the Rule 59(e)

process. As Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007), pro-

vides, before considering new evidence or arguments that were not pre-

sented before judgment — or, as in this case, a meritorious opposition —

the court must first determine whether the movant’s reasons for not pro-

viding such evidence or arguments are justified. Zinkand presupposes as

a threshold matter the determination that the reasons for noncompliance

are compelling. Id. at 637 ("If the court elects to look at additional evi-

dence represented as having been unavailable at the prior hearing, the

court must satisfy itself as to the unavailability of the evidence and like-

wise examine the justification for its omission."). Any other interpretation

of Zinkand proves illogical. If courts were required to consider a party’s

meritorious opposition before granting a Rule 59(e) motion, courts would

inevitably consider motions for summary judgment twice: both before and

after granting a Rule 59(e) motion. This requirement proves contrary to

our longstanding tradition "to secure the just, speedy, and inexpensive

determination of every action and proceeding." Fed. R. Civ. P. 1; see also

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Even under Rule

60(b), before considering whether the party has a meritorious opposition,

a court may first determine whether excusable neglect prevented the party

from filing in the first instance. See Dowell, 993 F.2d at 48.

Finally, we are concerned that such an approach would discourage com-

pliance with the Federal Rules. There would be no incentive for a party

ever to respond to a motion for summary judgment, because if he lost, he

would always have a second bite at the apple through a Rule 59(e) motion.

12 ROBINSON v. WIX FILTRATION CORP.

apply a general duty to monitor dockets. Rather, we conclude

that counsel cannot make the calculated choice to take no

action with respect to his electronic inaccessibility — by nei-

ther informing the court or the parties, nor by simply ascer-

taining from the court as to whether dispositive motions were

filed when due — and then avail himself of discretionary

relief from the consequences of that choice.

B.

We next consider whether it was error for the district court

to construe Appellant’s motion as one seeking relief pursuant

to Rule 59(e) exclusively, rather than one also seeking relief

under Rule 60(b).10 The Federal Rules of Civil Procedure

allow a litigant subject to an adverse judgment to file either

a motion to alter or amend the judgment pursuant to Rule

59(e) or a motion seeking relief from the judgment pursuant

to Rule 60(b). Although the two rules appear similar, they are

in fact quite distinct. A Rule 59(e) motion is discretionary. It

need not be granted unless the district court finds that there

has been an intervening change of controlling law, that new

evidence has become available, or that there is a need to cor-

rect a clear error or prevent manifest injustice. Ingle, 439 F.3d

at 197. By contrast, Rule 60(b) provides that a court may

relieve a party from an adverse judgment if the party shows

either:

(1) mistake, inadvertence, surprise, or excusable

neglect;

10

In his "Motion for Relief from Judgment and to Alter and Amend

Judgment," Appellant only mentioned Rule 60(b) in the opening sentence

but never addressed the elements of this rule. J.A. 100. We have previ-

ously made it clear that the failure to present an argument to the district

court constitutes waiver before this court. United States v. Evans, 404 F.3d

227, 236 n.5 (4th Cir. 2005). Nevertheless, because the district court

appears to have understood the Rule 60(b) argument as properly raised, we

will entertain it here.

ROBINSON v. WIX FILTRATION CORP. 13

(2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to

move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an

opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or dis-

charged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospec-

tively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

Appellant argues that because his motion invokes both Rule

59(e) and Rule 60(b), the district court erred by considering

only Rule 59(e) and ignoring Rule 60(b).11 We have squarely

11

In reaching this result, the district court relied on CODESCO. 569

F.2d at 809. In CODESCO, we held that "if a post-judgment motion is

filed within ten days of the entry of judgment and calls into question the

correctness of that judgment it should be treated as a motion under Rule

59(e), however it may be formally styled." Id. at 809. We developed that

approach because, at the time, Rule 59(e) tolled the 30-day appeal period

imposed by Federal Rule of Appellate Procedure 4(a) and Rule 60(b) did

not. Id. We reasoned that such a rule was necessary to remain "consistent

with the functional approach to procedure taken by the draftsmen of the

federal rules." Id.

In 1993, however, Federal Rule of Appellate Procedure 4(a) was

amended. It now reads:

If a party timely files in the district court any of the following

motions under the Federal Rules of Civil Procedure, the time to

file an appeal runs for all parties from the entry of the order dis-

posing of the last such remaining motion:

14 ROBINSON v. WIX FILTRATION CORP.

held, however, that a motion filed under both Rule 59(e) and

Rule 60(b) should be analyzed only under Rule 59(e) if it was

filed no later than 10 days after entry of the adverse judgment

and seeks to correct that judgment. Small v. Hunt, 98 F.3d

789, 797 (4th Cir. 1996); see also Vaughan v. Murray, No.

95-6081, 1995 WL 649864, at *3 n.3 (4th Cir. Nov. 6, 1995).

Appellant’s motion was filed 9 days after entry of judgment

and indeed sought to correct that judgment. Therefore, we

find no error in the district court’s decision.

***

(iv) to alter or amend the judgment under Rule 59; [or]

***

(vi) for relief under Rule 60 if the motion is filed no later than

10 days after the judgment is entered.

Fed. R. App. P. 4(a)(4)(A). The 1993 amendment notes to Rule 4(a)

explain that Rule 4(a) was amended to eliminate "the difficulty of deter-

mining whether a posttrial motion made within 10 days after entry of a

judgment is a Rule 59(e) motion, which tolls the time for filing an appeal,

or a Rule 60 motion, which historically has not tolled the time." Fed. R.

App. P. 4(a)(4) Advisory Committee’s note (1993 amendments). The

notes further explain that the amendment "comports with the practice in

several circuits of treating all motions to alter or amend judgments that are

made within 10 days after entry of judgment as Rule 59(e) motions for

purposes of Rule 4(a)(4)." Id.

Appellant argues that in light of Rule 4(a)’s new language, the district

court erred by relying on CODESCO. We disagree. We recognize that

under the new language of Rule 4(a), "a motion filed within ten days of

the original judgment need not be considered a Rule 59 motion in order

to preserve appellate review of the underlying order." MLC Auto., LLC v.

Town of Southern Pines, 532 F.3d 269, 278 (4th Cir. 2008). As such, the

rule established by CODESCO is no longer necessary. Yet, as we held in

MLC Automotive, because this court has continued to cite and apply

CODESCO following the amendment to Federal Rule of Appellate Proce-

dure 4, see, e.g., Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567,

573 n.2 (4th Cir. 2004), CODESCO remains binding precedent, MLC

Auto., 532 F.3d at 278.

ROBINSON v. WIX FILTRATION CORP. 15

Regardless, we do not believe that analyzing the motion

under Rule 60(b) would have helped Appellant. In order to

obtain relief under Rule 60(b), the moving party must demon-

strate at least one of the six grounds for relief listed in Rule

60(b).12 Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984).

Here, Appellant sought relief from the judgment under Rule

60(b)(1) for "mistake, inadvertence, surprise, or excusable

neglect." Fed. R. Civ. P. 60(b)(1). He argued that the e-mail

difficulties experienced by his counsel between July 2008 and

September 2008 excused his counsel’s failure to respond to

the motion for summary judgment. We find this argument

unpersuasive.

A party that fails to act with diligence will be unable to

establish that his conduct constituted excusable neglect pursu-

ant to Rule 60(b)(1). State Street Bank and Trust Co. v. Inver-

siones Errazuriz Limitada, 374 F.3d 158, 177 (2d Cir. 2004)

(citing 11 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2858, at 288-89 (2d ed. 1995)); see

also In re A.H. Robins Co., Inc., No. 98-1893, 1998 WL

904717, at *2 (4th Cir. Dec. 29, 1998) (finding that party’s

failure to inform the court of her new address did not consti-

tute excusable neglect for purposes of Rule 60(b)). This court

has held that "a lawyer’s ignorance or carelessness do not

present cognizable grounds for relief under [Rule] 60(b)."

Evans v. United Life & Accident Ins. Co., 871 F.2d 466, 472

(4th Cir. 1989).

In this case, Appellant’s counsel was aware that he was

experiencing e-mail difficulties during the summer months

and that the dispositive motions’ deadline was fast approach-

ing. As such, to keep his client reasonably informed as to the

12

In addition, the moving party must make a threshold showing that (1)

its motion was timely made; (2) it had a meritorious defense; (3) no unfair

prejudice to the opposing party would result; and (4) exceptional circum-

stances warranted relief from the judgment. Dowell, 993 F.2d at 48. We

need not address whether the movant satisfied the four threshold require-

ments, however, if we find that the movant has not sufficiently satisfied

one of the Rule 60(b) grounds for relief. Id.

16 ROBINSON v. WIX FILTRATION CORP.

status of the litigation, he should have regularly accessed the

court’s docket to monitor case activity, notified the court and

opposing counsel of his computer problems, or found another

way to stay informed regarding any developments in the case

— particularly since the local rules required electronic filing.

See, e.g., Gibson-Michaels v. Bair, 255 F.R.D. 306, 307 (D.C.

Cir. 2009) (finding that failure to receive notice of filing did

not absolve counsel of his "affirmative duty to stay apprised

of the status of the case"); Soliman v. Johanns, 412 F.3d 920,

922 (8th Cir. 2005) (finding that "a litigant who invokes the

processes of the federal courts is responsible for maintaining

communication with the court during the pendency of his law-

suit"); Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004)

(noting that "attorney inattentiveness to litigation is not excus-

able, no matter what the resulting consequences the attorney’s

somnolent behavior may have on a litigant"); Edward H.

Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th

Cir. 1993) (finding that "[a] party has a duty of diligence to

inquire about the status of a case"). Appellant’s counsel, how-

ever, never accessed the court’s docket after August 8, 2008,

nor did he contact opposing counsel or the court to notify

them of his computer problems, even though only he was in

a position to protect Appellant from precisely what occurred

here. Thus, the cause for the entry of judgment was Appel-

lant’s counsel’s carelessness, not his alleged e-mail difficul-

ties, and as noted above, attorney inattentiveness toward the

pending litigation is not excusable under Rule 60(b). We

therefore find that Appellant would not have received relief

under Rule 60(b) because his counsel’s calculated decision —

to inform no one of computer malfunctions of which only he

was aware, and to deliberately refrain from any attempt to

ascertain whether summary judgment motions were filed on

the date he knew they were due — in light of local rules

requiring electronic filing, cannot be characterized as "excus-

able neglect." See, e.g., Zimmer St. Louis, Inc. v. Zimmer Co.,

32 F.3d 357, 361 (8th Cir. 1994) (concluding in the Rule

60(b) context that failure to receive notice of final judgment

ROBINSON v. WIX FILTRATION CORP. 17

did not warrant relief, absent evidence that the official docket

failed to reflect entry of final judgment).

III.

For the reasons set forth above, the district court’s order

denying Appellant’s motion for relief from the judgment, or

in the alternative, to alter or amend the judgment is

AFFIRMED.

DAVIS, Circuit Judge, concurring:

I join the majority opinion in full. Our good colleague in

dissent laments the possible consequences to an "innocent"

litigant from his counsel’s unwise and misplaced strategic

choice to litigate, ostrich-like, with his head in the sand.1 But

as the majority opinion fully explains, the agency theory of

1

At oral argument, the panel questioned counsel vigorously as to how

counsel could have taken no action to inform himself of the status of the

case for several months after his computer problems had been remedied

and the deadline for dispositive motions had passed. Counsel assured the

court that the case was not neglected, that his office has "procedures in

place" to monitor cases, and that he "specifically recalled" discussing this

case with "staff" in his office, apparently not long after the office comput-

ers were returned in early August (shortly after the deadline for the filing

of dispositive motions). Here was counsel’s candid but surprising explana-

tion as to why, despite knowledge that during the computer malfunction

the motion deadline had come and gone, he did nothing:

I was aware that the deadline had passed. I made the strategic

decision not to contact defense counsel . . . . In hindsight that

wasn’t the best decision but I thought it would be contrary to my

client’s position to pick up the phone to call opposing counsel to

alert them that he [sic] may have neglected to file a motion within

the time period for filing [for] summary judgment.

Counsel further explained that "routine" monthly checking of the CM/ECF

system simply was not a part of his practice. But a computer malfunction

necessitating a virtual shut-down of a law office for four days can hardly

be described as "routine."

18 ROBINSON v. WIX FILTRATION CORP.

legal representation is long established. The majority opinion

does no more than make explicit that which common sense

and mature judgment make plain: lawyers have an obligation

to their clients, to the profession, and to the court to pay atten-

tion. For practitioners in the legal profession, unlike those in

some others, he who fails to pay attention may one day have

to pay up.

If it is true that a little knowledge is a dangerous thing,2 it

is equally true that a little local knowledge is invaluable. As

the dissent intimates, there are districts, divisions, and cities

and counties in this circuit in which what happened in this

case would be highly unlikely to happen. That is to say, in

some places, lawyers talk to each other frequently, even law-

yers on opposing sides of disputes. They discuss, for example,

in advance, proposed or expected motions and other litigation

events; they stay in contact with each other during the pen-

dency of the case. Likewise, in some places, a district judge’s

staff or a magistrate judge’s staff can be counted on to tele-

phone a lawyer who has failed to file an opposition to a long-

pending dispositive motion before the court rules on such a

motion; in some other places, no such call can or should be

expected from a chambers staff. In some places, a lawyer

(with or without the client’s assent) might herself call an

adversary to inquire as to the lack of an opposition to a dispo-

sitive motion. But none of these things are required or

expected in any district or any court; local legal culture drives

these practices.

2

"A little learning is a dangerous thing; drink deep, or taste not the

Pierian spring: there shallow draughts intoxicate the brain, and drinking

largely sobers us again." Alexander Pope, An Essay on Criticism, 1709.

But see Thomas Henry Huxley, On Elementary Instruction in Physiology

(1877) ("The saying that a little knowledge is a dangerous thing is, to my

mind, a very dangerous adage. If knowledge is real and genuine, I do not

believe that it is other than a very valuable possession, however infinitesi-

mal its quantity may be. Indeed, if a little knowledge is dangerous, where

is the man who has so much as to be out of danger?").

ROBINSON v. WIX FILTRATION CORP. 19

Thus, local knowledge, local practices, and local courtesies

come in many varieties and arise from many sources.3 In any

event, this court’s responsibility is to announce principled

3

Our dissenting colleague makes much of the fact that the district court

"rescheduled" the trial of the case by (electronic) notice entered approxi-

mately one month after the summary judgment deadline:

[T]he Order of Denial apparently misapprehended the role of the

district court in sustaining the erroneous impression that no dis-

positive motions had been filed. By rescheduling the trial after

the deadline for Robinson’s summary judgment response had

passed, the court may have created the impression that the matter

was progressing apace to trial, when in fact Robinson was over-

due in his response.

Dissenting Op. at 31 n.11. Apart from the soundness of the inference

drawn by the dissent, there may be more to the story than appears.

The Case Management Order entered in this case stated the following

at p. 16:

TRIAL DATE: Trial is scheduled to commence WITH a jury

during the first civil trial term beginning on or after DECEMBER

15, 2008. The Court will endeavor to set the date of the term of

court in which this case will tried at least eight months in

advance. The term "Trial Date" has been used throughout this

Order to refer to the first day of the term in which this case is

ultimately set for trial, that also being the date on which jury

selection is scheduled to begin for this case.

I do not claim any special insight into the court’s practices in the West-

ern District of North Carolina; local knowledge counts. Nevertheless, a

plausible reading of the trial setting provision in the Case Management

Order is that, as its plain language states, "the ultimate" trial date was to

be set for "the first civil trial term beginning on or after DECEMBER 15,

2008." That seems to have been what the district court did in setting the

trial for early February 2009.

At all events, many litigators will attest that when a district court res-

chedules a trial to a later date after the motions deadline, it is to give the

court more time to consider a dispositive motion. Thus, contrary to the

inference entertained by the dissent, the setting of the trial date in this case

is in reality an additional reason counsel for Robinson should have taken

a few moments in September 2008 to check the docket to learn what was

going on in the case.

20 ROBINSON v. WIX FILTRATION CORP.

decisions based on legally supported rules of general applica-

tion. The majority opinion does that here and I join it fully.

KING, Circuit Judge, dissenting:

More than twenty years ago, our distinguished then-Chief

Judge, Harrison L. Winter, wrote forcefully about judgments

that result from the failings of counsel. In his compelling

opinion in Smith v. Bounds, Judge Winter explained suc-

cinctly that

[a] sound discretion hardly comprehends a pointless

exaction of retribution. Dismissals for misconduct

attributable to lawyers and in no way to their clients

invariably penalize the innocent and may let the

guilty off scott-free. Moreover, public confidence in

the legal system is undermined when a litigant’s

claim is dismissed due to the blameworthy actions of

their counsel. The litigant does have recourse in such

a case — a malpractice action — but that approach

may not result in a hearing on the merits of the plain-

tiff’s case.

813 F.2d 1299, 1304 (4th Cir. 1987) (citations, internal quota-

tion marks, and alteration omitted).

Another of this Court’s great judges, the inestimable Don-

ald S. Russell, had written eight years earlier — in language

not until today repudiated by this Court — that when a "mo-

vant has shown a meritorious defense," the grounds for relief

"are to be liberally construed." Compton v. Alton S.S. Co., 608

F.2d 96, 102 (4th Cir. 1979) (internal quotation marks omit-

ted). Judge Russell then emphasized that

[a]ny doubts about whether relief should be granted

should be resolved in favor of setting aside the

default. In short, any considerations of the need to

expedite cases, to fully utilize the court’s time, to

ROBINSON v. WIX FILTRATION CORP. 21

reduce overcrowded calendars and to establish final-

ity of judgments should never be used to thwart the

objectives of the blind goddess of justice itself.

Id. at 102-03 (citations, internal quotation marks, and alter-

ations omitted).1

In resolving this matter, the district court and my fine col-

leagues in the panel majority both accept the undisputed

explanation of Robinson’s lawyer that his law office’s com-

puter and email problems prevented him from receiving elec-

tronic notification of Wix’s summary judgment papers.

Nevertheless, the lawyer is faulted for failing to sufficiently

monitor court filings, thereby rendering acceptable the district

court’s ex parte resolution of Wix’s summary judgment

motion. As a result, the court’s denial of relief under Federal

Rule of Civil Procedure 59(e) is deemed a valid exercise of

discretion. As explained below, I disagree.

More specifically, I espouse two primary bases for my dis-

senting view. First, the district court abused its discretion in

denying Robinson’s Rule 59(e) motion, as it misapprehended

the compelling relevance of Robinson’s assertion of a merito-

rious summary judgment defense. Second, to justify its affir-

mance, the panel majority finds it necessary — as did the

district court — to sponsor and apply a new duty to monitor

court filings for fear of ex parte proceedings (the "duty to moni-

tor").2 Such a duty is antithetical to our notice-based adver-

sarial system.

1

That neither Smith nor Compton involved Federal Rule of Civil Proce-

dure 59(e) or a summary judgment award does not undermine the wise and

longstanding principles enunciated therein. In this appeal, we are assessing

one overarching issue: whether the district court properly considered Rule

59(e)’s concern for preventing manifest injustice. This issue implicates, in

my humble view, the storied and time-honored wisdom of Judges Winter

and Russell.

2

The panel majority mentions various permutations of this duty, includ-

ing (1) literally checking the court’s docket; and (2) contacting opposing

counsel or the court to verify the status of the case.

22 ROBINSON v. WIX FILTRATION CORP.

I.

Although the panel majority offers a brief synopsis of the

circumstances of this appeal, the following are essential to its

proper understanding and resolution. On August 8, 2008, Wix

filed its motion for summary judgment. Robinson’s response

was due on August 25, 2008; none was filed. On September

9, 2008, the district court rescheduled the trial of the case —

originally set for December 2008 — to February 17, 2009. On

December 3, 2008, the court awarded summary judgment to

Wix.

Nine days after the summary judgment award, on Decem-

ber 12, 2008, Robinson filed his motion for relief from the

judgment and to alter and amend it, pursuant to Rules 59 and

60 of the Federal Rules of Civil Procedure (the "Rule 59(e)

motion"). In support thereof, Robinson filed the affidavit of

his lawyer, as well as the corroborating affidavit of his law-

yer’s paralegal, attesting to the lawyer’s failure to receive

notice of Wix’s motion for summary judgment. The lawyer’s

affidavit specified, inter alia, the following:

• He "at no point and time received notice that the

Motion for Summary Judgment had been filed by

[Wix’s] counsel prior to the Court’s December 3,

2008 Order of Dismissal," J.A. 110;

• He "did not receive electronic notification of the

e–mail transmission on August 8, 2008," id.;

• He "did not receive the notice due to [his] firm’s

computer system problems," id. at 111; and

• He had never failed, in "ten (10) years of practic-

ing law, . . . to respond to a Motion for Summary

Judgment," id. at 112.

ROBINSON v. WIX FILTRATION CORP. 23

In urging relief from the judgment, Robinson contended that

the court should consider his assertion of a meritorious oppo-

sition to Wix’s summary judgment motion.

On December 23, 2008, Wix responded to the Rule 59(e)

motion, asserting that Wix "received a Notice of Electronic

Filing . . . after the [summary judgment] motion was filed."

J.A. 161. Wix further maintained that it "received no notice

that the attempted service was unsuccessful." Id. Wix did not,

however, submit any supporting affidavits or evidence, such

as the Notice of Electronic Filing of the summary judgment

motion.

On January 13, 2009, the day after Robinson filed his reply

to Wix’s response (further specifying his assertion of a meri-

torious opposition to summary judgment), the district court

denied the Rule 59(e) motion by its Memorandum of Decision

and Order (the "Order of Denial"). At no point did the court

receive any evidence other than the affidavits and records

submitted by Robinson’s lawyer in support of the Rule 59(e)

motion. Nevertheless, the Order of Denial’s procedural

review recites that a Notice of Electronic Filing "generated by

the Court’s ECF system indicates that notice of [Wix’s

motion and supporting papers] was electronically mailed to

[Robinson’s] counsel on August 8, 2008. There is nothing in

the ECF system to indicate that the transmission of these

NEF’s to [Robinson’s] counsel was not successful." J.A. 179-

80. Although the court accepted Robinson’s lawyer’s explana-

tion that computer problems prevented his receipt of the elec-

tronic notice of the summary judgment papers, it ruled that

"these computer problems did not relieve [Robinson’s] coun-

sel of his obligation to continue to monitor the docket in this

case." Id. at 183.

To deny the Rule 59(e) motion, the court relied on its view

that any meritorious summary judgment defense was irrele-

vant and on the fact that counsel had failed to monitor the

24 ROBINSON v. WIX FILTRATION CORP.

docket and maintain his firm’s domain name registration. The

court explained:

Given counsel’s apparent failure to monitor the

Court’s docket and the lack of any evidence of an

error in the docketing of [Wix’s] Motion in the

Court’s ECF system, and the fact that at least some

portion of [Robinson’s] counsel’s e-mail problems

stemmed from counsel’s failure to maintain his

firm’s domain name registration, the Court con-

cludes that the failure of counsel does not constitute

excusable neglect and that altering or amending the

Judgment is not necessary to prevent manifest injus-

tice in this case. See Fox[ v. Am. Airlines, Inc.], 295

F. Supp. 2d [56,] 60 [(D.D.C. 2003), aff’d, 389 F.3d

1291 (D.C. Cir. 2004)].

[Robinson] further contends that there are genuine

issues of material fact which should preclude the

granting of summary judgment in this matter. The

fact that [Robinson] may have a meritorious opposi-

tion to [Wix’s] Motion for Summary Judgment,

however, does not constitute a proper basis for

reconsideration of the Court’s Judgment. A Rule

59(e) motion "may not be used . . . to raise argu-

ments which could have been raised prior to the issu-

ance of the judgment . . . ." Pac[.] Ins. Co. [v. Am.

Nat’l Fire Ins. Co.], 148 F.3d [396,] 403 [(4th Cir.

1998)]. Accordingly, [Robinson’s] Motion to Alter

or Amend the Judgment on this basis must be

denied.

J.A. 185-86 (omissions in original).

Although it disavows so doing, the panel majority likewise

adopts a duty to monitor. Indeed, the majority never rejects

the district court’s recognition of such a duty, and, in its Rule

59(e) analysis, the majority applies such a duty in order to jus-

ROBINSON v. WIX FILTRATION CORP. 25

tify its affirmance. Nevertheless, the majority initially

describes a somewhat more circumspect duty to monitor, cor-

related to the knowledge Robinson’s lawyer had of the

motions’ deadline and his computer problems. See, e.g., ante

at 7 ("Knowing that dispositive motions were due on August

8, 2008, Appellant’s counsel had good reason, after realizing

he was experiencing computer problems, to check the court’s

docket after such date or contact the court and opposing coun-

sel to notify them of his computer troubles.").3 Thereafter,

however, the majority expands this duty through reference to

a lawyer’s ethical duties. See id. at 7-8 n.7.4

Additionally, in its discussion of Rule 60(b), the majority

enshrines an unbounded duty to monitor. See ante at 16 (con-

cluding that "a party has a duty of diligence to inquire about

the status of a case" and that Robinson’s counsel "should have

regularly accessed the court’s docket to monitor case activity

. . . or found another way to stay informed regarding any

developments in the case" (internal quotation marks and alter-

ation omitted)). Compounding the problematic nature of the

majority’s approach are the myriad problems inherent in this

new duty, including its inversion of the obligations enunciated

by the Civil Rules, and the inescapable reality that any Rule

3

Notably, the panel majority simply ignores Federal Rule of Civil Pro-

cedure 5(b)(2)(E), which provides that electronic service "is not effective

if the serving party learns that it did not reach the person to be served."

As explained below, this Rule mandated that Wix again attempt service

after learning that Robinson had not received electronic service.

4

In order to rule as it does, the majority emphasizes its view that the eth-

ics rules on attorney diligence and competence justify the imposition of its

duty to "check the court’s docket . . . or contact the court and opposing

counsel." Ante at 7. This duty to monitor, as further explained below, runs

counter to the Civil Rules (which always place the obligation of service

on the movant) and requires the majority to engage in appellate fact-

finding (which contravenes a basic tenet of our legal system). Thus, I dis-

agree with the majority’s use of the rules of ethics to justify its new duty

to monitor, its beyond-the-rules doctrine of "constructive service," and its

appellate fact-finding.

26 ROBINSON v. WIX FILTRATION CORP.

60(b) analysis is, as the majority itself recognizes, foreclosed

by our circuit precedent.5

Moreover, the absence of any evidentiary hearing below

does not prevent the panel majority from going well beyond

the district court and performing its own fact-finding, includ-

ing findings on Robinson’s lawyer’s state of mind.6 Crucially,

such improper fact-finding is central to the majority’s abuse-

of-discretion analysis. See ante at 10 ("[B]ecause Appellant’s

counsel was willfully blind . . . , we cannot say that the dis-

trict court abused its discretion . . . ."); see also id. at 9 (find-

ing that "the district court[ ] implicit[ly] conclu[ded] that

Appellant’s counsel opted to engage in willful blindness"). It

is axiomatic, however, as our Judge Hall eloquently

explained, that appellate courts do not make factual findings.

See Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 56

F.3d 556, 575-76 (4th Cir. 1995) ("It is a basic tenet of our

legal system that, although appellate courts often review facts

found by a judge or jury . . . , they do not make such findings

in the first instance."); see also Maine v. Taylor, 477 U.S.

131, 144-45 (1986) ("[F]actfinding is the basic responsibility

of the district courts, rather than appellate courts." (internal

5

Pursuant to our circuit’s so-called CODESCO rule, the district court

correctly construed Robinson’s motion as solely seeking Rule 59(e), and

not Rule 60(b), relief. See MLC Auto., LLC v. Town of S. Pines, 532 F.3d

269, 277-78 (4th Cir. 2008) (citing Dove v. CODESCO, 569 F.2d 807, 809

(4th Cir. 1978)). Thus, the majority’s discussion on the appropriateness of

Rule 60(b) relief is simply obiter dicta.

6

In a similar fashion, the panel majority mischaracterizes the Order of

Denial and engages in fact-finding regarding the district court’s CM/ECF

system. See ante at 4-5, 6-7. No evidentiary hearing was ever conducted,

nor was the CM/ECF system examined to determine whether a pertinent

Notice of Electronic Filing was ever successfully transmitted. Cf. Am.

Boat Co., Inc. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir.

2005) (recognizing need for evidentiary hearing on delivery of electronic

notice); Dempster v. Dempster, 404 F. Supp. 2d 445, 449-50 (E.D.N.Y.

2005) (same). Importantly, the mere transmission, as opposed to receipt,

of such electronic notice is insufficient to accomplish service under the

Civil Rules. See infra Part III.A.

ROBINSON v. WIX FILTRATION CORP. 27

quotation marks omitted)).7 Accordingly, I am unable to

accede to the majority’s unwarranted factual findings in

resolving this appeal.

With this background in mind, I turn to a more detailed

explanation of why I must dissent.

II.

First, the district court abused its discretion in ruling that it

need not consider Robinson’s assertion of a meritorious

defense. As a preliminary matter, the panel majority is simply

incorrect in asserting that Robinson failed to pursue his meri-

torious opposition contention on appeal. Robinson raised this

issue in all three argument sections of his opening brief. See,

e.g., Br. of Appellant 14 ("[Robinson’s] argument that equita-

ble relief should be granted . . . because of the existence of

a meritorious defense was likewise ignored by the District

Court."); id. at 18 (explaining that "[w]ithout [Robinson’s]

response[,] there was no record of [Robinson’s] meritorious

defense," and "[t]he lack of record . . . is a manifest injus-

tice"); id. at 26 (asserting that the district court "abuse[d] . . .

its discretion" in "refus[ing] to consider the prerequisite issue

of a meritorious defense"). The majority simply ignores the

fact that Robinson has consistently sought — from the time

he first filed his Rule 59(e) motion until today — alternative

relief under both Rule 59 and Rule 60. It engages in a hyper-

technical parsing of Robinson’s papers, sorting "Rule 59 con-

7

Compounding the problematic nature of the panel majority’s foray into

fact-finding is the unsoundness of its determination that the "district

court’s implicit conclusion [was] that Appellant’s counsel opted to engage

in willful blindness." Ante at 9. The district court made no such implicit

conclusion; rather, it explicitly ruled that his office’s "computer problems

did not relieve [Robinson’s] counsel of his obligation to continue to moni-

tor the docket in this case." J.A. 183. This ruling, as well as the factual

findings made by the district court, see ante at 4-5 n.5, simply demonstrate

that the district court concluded that Robinson’s lawyer failed to comply

with the new duty to monitor, not that he was willfully blind.

28 ROBINSON v. WIX FILTRATION CORP.

tentions" from "Rule 60 contentions," in order to say that

Robinson waived a contention that he has maintained

throughout this litigation — that the district court ignored his

assertion of a meritorious defense. Indeed, Wix itself under-

stood this contention to have been raised on appeal, see Br.

of Appellees 22-27, and the lawyers came to oral argument

prepared to answer meritorious opposition inquiries, which

consumed a substantial portion of their time. Put simply, the

majority’s position — that the meritorious opposition asser-

tion was not raised on appeal — is unfounded.8

Turning to the merits of Robinson’s contention, we have

heretofore explained, in reversing the denial of Rule 59(e)

relief, that "‘[a]buse of discretion’ is a legal term of art; it is

not a wooden term but one of flexibility, dependent on the

type of case in which it is to be applied and the posture of the

case when it arises." Collison v. Int’l Chem. Workers Union,

Local 217, 34 F.3d 233, 236 (4th Cir. 1994) (internal quota-

tion marks omitted). Nevertheless, it is beyond peradventure

that "[a] district court abuses its discretion when it fails to

take relevant factors intended to guide its discretion into

account or when it acts on the basis of legal or factual misap-

prehensions respecting those factors." Pac. Ins. Co. v. Am.

Nat’l Fire Ins. Co., 148 F.3d 396, 402-03 (4th Cir. 1998)

(internal quotation marks omitted).

Rule 59(e), unlike Rule 60(b), includes no itemized list of

potential bases for relief. We have consistently recognized,

however, three bases for amending a judgment under Rule

59(e): "(1) to accommodate an intervening change in control-

ling law; (2) to account for new evidence not available at trial;

8

The majority’s position on this point is also strikingly ironic, given its

assertion that Robinson waived his Rule 60(b) contention by not arguing

it before the district court. See ante at 12 n.10. The majority opinion nev-

ertheless proceeds to address the merits of Robinson’s Rule 60(b) conten-

tion, notwithstanding this purported waiver and the inescapable reality that

the opinion’s Rule 60(b) assessment is purely dicta.

ROBINSON v. WIX FILTRATION CORP. 29

or (3) to correct a clear error of law or prevent manifest injus-

tice." Pac. Ins., 148 F.3d at 403; see also EEOC v. Lockheed

Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th Cir.

1997) (same); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th

Cir. 1993) (same). It is the second aspect of the third factor

— to "prevent manifest injustice" — that is implicated by this

appeal.

In its Order of Denial, the district court recognized that

Robinson "contends that there are genuine issues of material

fact which should preclude the granting of summary judgment

in this matter." J.A. 185. The court nonetheless disregarded

this "meritorious opposition" contention, ruling — absent any

supporting authority — that "[t]he fact that [Robinson] may

have a meritorious opposition to [Wix’s] Motion for Sum-

mary Judgment . . . does not constitute a proper basis for

reconsideration of the Court’s Judgment." Id. To justify its

refusal to consider Robinson’s contention — namely, that he

possessed a meritorious defense to the summary judgment

motion — the district court latched on to the unremarkable

proposition that Rule 59(e) should not be used merely to pur-

sue a contention that could have been raised prior to judg-

ment. See id. This maxim, however, is entirely inapt in these

circumstances, for Robinson was not seeking to "relitigate old

matters" or "complete presenting his case after the court . . .

ruled against him." Pac. Ins., 148 F.3d at 403 (internal quota-

tion marks omitted). Rather, Robinson was asserting a failure

of notice with respect to the summary judgment motion itself.

Thus, this is not a situation where a party, having lost on his

first theory, sought in post-judgment proceedings to present

an alternate contention on the merits. Instead, Robinson

sought to rectify an adverse ex parte summary judgment

award by presenting to the court — for the first time — his

assertedly meritorious defense thereto. Stated most succinctly,

Robinson sought to litigate, not relitigate.

The district court therefore erred in misunderstanding the

relevance of Robinson’s assertion of a meritorious defense.

30 ROBINSON v. WIX FILTRATION CORP.

As Wix’s lawyer conceded at oral argument, "manifest injus-

tice" is an inclusive concept that encompasses, inter alia, the

impact of the challenged ruling on Robinson. Consequently,

whether Robinson asserted a meritorious defense is an impor-

tant factor in the "manifest injustice" calculus. See Zinkand v.

Brown, 478 F.3d 634, 637 (4th Cir. 2007) (recognizing, in

context of lawyer’s failure to respond to summary judgment

motion, that court could consider plaintiff’s contentions).9 The

foregoing principle is particularly applicable here, in that the

summary judgment award was premised on the facts being

deemed "undisputed" solely because Robinson did not

respond to the summary judgment motion. See J.A. 86

("[Robinson] has failed to respond to [Wix’s] motion, and

therefore, the facts presented by [Wix] are not in dispute.").10

Accordingly, the court’s wholesale disregard of Robinson’s

assertion of a meritorious defense was an abuse of its other-

wise substantial discretion. See Pac. Ins., 148 F.3d at 402-03

("A district court abuses its discretion when it fails to take rel-

evant factors intended to guide its discretion into account or

when it acts on the basis of legal or factual misapprehensions

respecting those factors." (internal quotation marks omitted)).

The Order of Denial is particularly troubling in the context

of our longstanding recognition that "the sanctions for attor-

9

The majority also misreads our Zinkand decision by claiming that "Zin-

kand presupposes as a threshold matter the determination that the reasons

for noncompliance are compelling." See ante at 11 n.9. Contrary to the

majority’s view, in Zinkand "the district court was dealing with a situation

where Zinkand’s prior counsel apparently had simply refused to go for-

ward with Zinkand’s case." 478 F.3d at 637. The Zinkand court explicitly

acknowledged that the record only hinted at the reasons for this conduct,

but — "whatever the reason" for the failure — we did not reexamine the

court’s decision to hear new evidence and additional legal argument. Id.

10

Under our CODESCO rule, Robinson could not seek relief from the

summary judgment award through Rule 60(b). Application of the

CODESCO rule therefore heightened the necessity of factoring Robin-

son’s assertion of a meritorious defense into the manifest injustice calcu-

lus.

ROBINSON v. WIX FILTRATION CORP. 31

ney neglect should be borne if at all possible by the attorney

himself rather than by his client." Dove v. CODESCO, 569

F.2d 807, 810 (4th Cir. 1978).11 Our Court has long espoused

this principle, in part because "[d]ismissals for misconduct

attributable to lawyers and in no way to their clients invari-

ably penalize the innocent and may let the guilty off scott-

free." Smith v. Bounds, 813 F.2d 1299, 1304 (4th Cir. 1987)

(internal quotation marks and alteration omitted). Moreover,

settled principles of public policy call for resolving lawsuits

on their merits and on well-developed records. See Lockheed

Martin, 116 F.3d at 112; CODESCO, 569 F.2d at 810. Indeed,

as Judge Winter emphasized in Smith, "public confidence in

the legal system is undermined when a litigant’s claim is dis-

missed due to the blameworthy actions of [his] counsel." 813

F.2d at 1304. And we have consistently acknowledged that a

legal malpractice action is a poor substitute for resolving a lit-

igant’s case on its merits. See id. Ignoring Robinson’s asser-

tion of a "meritorious opposition" disregards these laudable

principles.

I would therefore vacate the Order of Denial and remand to

the district court, ruling that it abused its discretion by failing

to consider Robinson’s assertion of a meritorious opposition

in deciding whether Rule 59(e) relief was necessary to pre-

vent manifest injustice. See Pac. Ins., 148 F.3d at 402-03; see

also United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)

(explaining that, "because there is no indication that the dis-

trict court considered the defendant’s nonfrivolous argu-

ments," it abused its discretion). Indeed, in a similar

circumstance, we recognized that Rule 59(e) relief was appro-

11

Additionally, the Order of Denial apparently misapprehended the role

of the district court in sustaining the erroneous impression that no disposi-

tive motions had been filed. By rescheduling the trial after the deadline for

Robinson’s summary judgment response had passed, the court may have

created the impression that the matter was progressing apace to trial, when

in fact Robinson was overdue in his response. Notably, this rescheduling

further undercuts the majority’s improper factual finding that Robinson’s

lawyer was somehow engaged in "willful blindness." See ante at 8, 9.

32 ROBINSON v. WIX FILTRATION CORP.

priate when a plaintiff, after an adverse summary judgment

ruling, was able to demonstrate that genuine issues of material

fact were nevertheless in dispute. See Zinkand, 478 F.3d at

637 (explaining that, but for a legal misapprehension, "obvi-

ously the district court would have granted the Rule 59(e)

motion" where plaintiff demonstrated that genuine issues of

material fact were disputed).12

III.

A.

In order to justify its conclusion today, the panel majority

finds it necessary to sponsor and apply a duty to monitor court

filings for fear of ex parte proceedings. See, e.g., ante at 7-8

n.7; see also id. at 16-17. Such a duty is antithetical to our

notice-based adversarial system. See Fed. R. Civ. P. 5.

Although the majority utilizes a somewhat vague and ambigu-

ous rule, this duty is nevertheless intended to be applied in

retroactive fashion, as a judge’s "common sense and mature

judgment" may dictate. See ante at 18. Such a duty will be

impossible to fairly assess or apply, and simply translates to

a rule of constructive service of legal papers that contradicts

the applicable provisions of the Federal Rules of Civil Proce-

dure.

More specifically, the majority’s duty to monitor contra-

dicts the Civil Rules’ requirement that written motions be

served by the movant on every party. See Fed. R. Civ. P.

5(a)(1)(D). Although Rule 5, entitled "Serving and Filing

Pleadings and Other Papers," authorizes such service to be

12

As further explained below, the district court also abused its discretion

by creating from whole cloth — and then applying retroactively — the

new duty to monitor, an obligation the majority is willing to apply but not

explicitly adopt. Accordingly, the district court made a separate and inde-

pendent error of law when it created and applied this expansive monitor-

ing obligation.

ROBINSON v. WIX FILTRATION CORP. 33

effectuated by electronic means, it does not, contrary to the

newly invented duty to monitor, authorize anything approach-

ing "constructive service" — i.e., service deemed effective

solely by virtue of the electronic filing. Indeed, the Rules

explicitly disclaim such an approach, warning that electronic

service "is not effective if the serving party learns that it did

not reach the person to be served." See Fed. R. Civ. P.

5(b)(2)(E); see also W.D.N.C. R. 5.3(A) (providing that the

Notice of Electronic Filing "constitutes proof of service of the

filed document upon all registered users unless the filing party

learns that such attempted service was not successful"). This

explicit caveat — that electronic service is not effective if the

serving party learns that it did not reach the intended recipient

— is especially striking given the absence of any such qualifi-

cation for service by mail. See Fed. R. Civ. P. 5(b)(2)(C) (pro-

viding simply that service by mail "is complete upon

mailing"). Notably, Rule 5 imposes no time limitation on the

protection afforded to litigants by the electronic service caveat

— and the pertinent Advisory Committee Notes establish that

this omission was a conscious and carefully considered deci-

sion.

The Advisory Committee Notes to the 2001 Amendments

to Rule 5 explain that the electronic service caveat, which was

initially contained in Rule 5(b)(3),

defeats service by electronic means if the party mak-

ing service learns that the attempted service did not

reach the person to be served. It says nothing about

the time relevant to learning of the failure. The omis-

sion may seem glaring. Curing the omission, how-

ever, requires selection of a time.

Fed. R. Civ. P. 5 Advisory Committee Notes to 2001 Amend-

ments (Changes Made After Publication and Comments)

(emphasis added) (internal quotation marks omitted). The

Committee Notes further explain that the "issue deserves

careful consideration by the Standing Committee" and that a

34 ROBINSON v. WIX FILTRATION CORP.

proposed version of the Appellate Rule on service, Rule

25(c), included a durational limitation, i.e., a deadline of three

days. Id. Notably, however, as ultimately adopted, Appellate

Rule 25(c) contains no such deadline, providing simply that

electronic service (as with Rule 5(b)(2)(E)) "is complete on

transmission, unless the party making service is notified that

the paper was not received by the party served." Fed. R. App.

P. 25(c)(4). The Advisory Committee Notes on Rule 25

explain that

[t]here is one exception to the rule that electronic

service is complete upon transmission: If the sender

is notified — by the sender’s e-mail program or oth-

erwise — that the paper was not received, service is

not complete, and the sender must take additional

steps to effect service.

Fed. R. App. P. 25 Advisory Committee Notes to 2002

Amendments.

Accordingly, under the plain and unambiguous terms of

Rule 5(b)(2)(E), when Robinson’s lawyer informed the dis-

trict court and Wix’s lawyers — by way of the Rule 59(e)

motion — of the failure of electronic service of the summary

judgment papers, that notification defeated Wix’s attempted

service of those papers.13 The panel majority does not address

this reality, nor does it acknowledge that application of the

duty to monitor is diametrically opposed to the precepts of

service and notice enshrined in the Civil Rules.

13

Had Wix’s lawyer mailed a courtesy copy of the summary judgment

papers — which Robinson’s lawyer asserts is the customary local practice

— this entire debacle would have been avoided and, more importantly

from Wix’s perspective, service would have been accomplished. See Fed.

R. Civ. P. 5(b)(2)(C). Nevertheless, as Wix’s lawyer chose electronic ser-

vice only, his duty to serve — imposed on the movant under the Civil

Rules (the majority’s contrary position notwithstanding) — was reani-

mated by Robinson’s notification that such service had not been received.

ROBINSON v. WIX FILTRATION CORP. 35

To justify its duty to monitor — which effectively transfers

the burden of service from the movant’s lawyer to the recipi-

ent’s lawyer — the panel majority relies on the D.C. Circuit’s

decision in Fox v. American Airlines, Inc., a materially distin-

guishable case. See 389 F.3d 1291 (D.C. Cir. 2004). First, that

decision primarily concerned whether the "straightforward

application of [that circuit’s] Local Rule 7(b)," which treats

unopposed motions as conceded, was an abuse of discretion.

Id. at 1294. Second, more than a month after the defendant

filed its motion to dismiss, the plaintiffs’ lawyer filed a "joint

meet and confer statement and proposed scheduling order"

referencing the "pending" motion to dismiss. Id. The D.C.

Circuit emphasized that, in such circumstances, "it is difficult

to understand how counsel did not recognize that the ‘pend-

ing’ motion to dismiss he repeatedly referenced . . . related to

the amended complaint," particularly because "his failure to

receive a timely answer to the amended complaint [s]hould

have aroused his suspicion." Id. (emphasis omitted). Fox thus

involved a vastly different scenario from the one presented

here.

Exacerbating the difficulties attendant to the majority’s

reliance on Fox is that the decision was largely predicated on

concerns for docket management. See Fox, 389 F.3d at 1295

("Requiring [the court] to provide notice, [and] an opportunity

to explain and weigh alternatives before enforcing Rule 7(b)

would hinder effective docket management."). Yet, our Court

has — until today — traditionally adhered to the principle

espoused by Judge Russell and his distinguished panel that

"considerations of the need to expedite cases, to fully utilize

the court’s time, to reduce overcrowded calendars and to

establish finality of judgments should never be used to thwart

the objectives of the blind goddess of justice itself." Compton

v. Alton S.S. Co., 608 F.2d 96, 103 (4th Cir. 1979) (internal

quotation marks and alteration omitted).

B.

The panel majority compounds the problematic nature of its

duty to monitor in two important respects. First, it imputes

36 ROBINSON v. WIX FILTRATION CORP.

such a duty to the client personally and, in so doing, disre-

gards the malpractice implications thereof. Second, the major-

ity devises this obligation in the absence of any corollary

duties for movants’ lawyers and the courts.

1.

In imputing Robinson’s lawyer’s actions to Robinson per-

sonally, the panel majority erroneously relies upon readily

distinguishable authorities. For instance, Gayle v. United Par-

cel Service concerned "whether attorney negligence justifies

equitable tolling sufficient to excuse the lack of compliance

with [an ERISA] plan’s appeal procedure." 401 F.3d 222, 224

(4th Cir. 2005). The issue presented in Gayle is, of course,

very different from the inquiry here: whether to impute con-

structive service of summary judgment papers to Robinson,

predicated solely on his lawyer’s failure to comply with the

newly devised (but retroactive) duty to monitor.14

The Supreme Court’s decision in Link v. Wabash Railroad

Co. — a case regarding the dismissal of a lawsuit that had

been pending for more than six years — is also readily distin-

guishable. See 370 U.S. 626 (1962). Link’s lawyer did not

attend a scheduled pretrial conference — despite full knowl-

edge thereof — because he "was busy preparing papers to file

with [another court]." Id. at 628. Moreover, Link’s lawyer had

14

Meanwhile, Universal Film Exchanges, Inc. v. Lust involved a lawyer

who, knowing that papers were only served on counsel of record, "deliber-

ately chose not to enter an appearance, chose not to file an answer that

would have made known to the court his client’s defense, and allowed

[another lawyer] to continue on as [his client’s] sole counsel of record."

479 F.2d 573, 575 (4th Cir. 1973). Months after the plaintiff was awarded

summary judgment against all defendants — on an unopposed motion —

the non-record lawyer filed a motion for relief, which was denied because,

inter alia, notice of the motion and judgment "were properly served on the

only attorney who had entered an appearance for [the defendant]." Id. at

576. That situation is a far cry from this case, where the summary judg-

ment papers were not served on any lawyer for Robinson.

ROBINSON v. WIX FILTRATION CORP. 37

a history of dilatory conduct. Id. at 634 n.11. Notably, in

upholding dismissal, the Court explained that "the fundamen-

tal requirement of due process is an opportunity to be heard

upon such notice and proceedings as are adequate," with ade-

quacy correlated, in large part, to the knowledge the party has

of the consequences of his conduct. Id. at 632 (internal quota-

tion marks omitted).15 The Court then observed that each party

"is considered to have notice of all facts, notice of which can

be charged upon the attorney." Id. at 634 (internal quotation

marks omitted).16 Here, notice of Wix’s summary judgment

papers cannot fairly "be charged upon the attorney" and there-

fore cannot be imputed to Robinson. Thus, the cautionary

words of Justice Black in Link have much force:

[I]t is of very great importance to everyone in this

country that we do not establish the practice of

throwing litigants out of court without notice to them

solely because they are credulous enough to entrust

their cases to lawyers whose names are accredited as

worthy and capable by their government. I fear that

this case is not likely to stand out in the future as the

best example of American justice.

Link, 370 U.S. at 649 (Black, J., dissenting).

Rather than confronting these realities, the panel majority

has itself "opted to engage in willful blindness" toward the

adverse implications of its duty to monitor. See ante at 9. In

so doing, it disregards the time-honored principles espoused

by Judges Winter and Russell, effectively repudiating sub

30

Notably, the Court’s decision in Link was premised in part on the

availability of post-judgment relief as an "escape hatch." See 370 U.S. at

632. Ironically, the panel majority today imputes a lawyer’s alleged fail-

ings to his client precisely to foreclose any post-judgment relief.

16

Importantly, this explication completes the passage relied on by the

majority, see ante at 9 (providing that a party cannot "‘avoid the conse-

quences of the acts or omissions of this freely selected agent’" (quoting

Link, 370 U.S. at 633-34)).

38 ROBINSON v. WIX FILTRATION CORP.

silentio the wisdom of those eminent jurists. Notably, except

for the concurrence’s blithe statement that "[f]or practitioners

in the legal profession, unlike those in some others, he who

fails to pay attention may one day have to pay up," ante at 18,

the majority fails to address the malpractice implications of its

duty to monitor.17 As Judge Winter warned, the approach

advocated by the majority "invariably penalize[s] the innocent

and may let the guilty off scott-free." Smith v. Bounds, 813

F.2d 1299, 1304 (4th Cir. 1987) (internal quotation marks

omitted). In addition to increasing the risk that the underlying

tortfeasor will escape liability, the duty to monitor will

increase the exposure of lawyers to malpractice liability. And

it will, logically, also increase their malpractice insurance

rates.18 Moreover, it will merely substitute — case-by-case —

one lawsuit for another, with the new lawsuit being the ex-

client against his former lawyer. Judge Winter would surely

be shocked by such a development. In short, application of the

duty to monitor itself flouts "our longstanding tradition to

secure the just, speedy, and inexpensive determination of

every action and proceeding." See ante at 10-11 n.9 (internal

quotation marks omitted).

17

We have recognized that, in granting judgment against a litigant based

on the failings of counsel, it is proper for the court to first take account

of the availability of less severe sanctions, such as punishment imposed

solely on the lawyer. See, e.g., Augusta Fiberglass Coatings, Inc. v. Fodor

Contracting Corp., 843 F.2d 808, 811 (4th Cir. 1988) (observing that "the

trial court may nonetheless impose other sanctions against the offending

attorney, such as awarding the non-movant’s costs and attorney’s fees").

18

An additional impact of the duty to monitor will be, of course, the

expense of checking the dockets. Given the undefined parameters of this

new duty, a lawyer would be well-advised to repeatedly check the docket

of each case, notwithstanding the absence of any Notices of Electronic Fil-

ing. The Judicial Conference imposes charges for such endeavors. See

Electronic Public Access Fee Schedule, http://pacer.psc.uscourts.gov/

documents/epa_feesched.pdf. As such, the duty to monitor will impose an

untoward burden in time and money on lawyers — particularly sole practi-

tioners, those in small firms, those who are not technologically sophisti-

cated, and those with high-volume litigation practices. Such increased

costs will also harm litigants, who ultimately will be charged with the

additional costs.

ROBINSON v. WIX FILTRATION CORP. 39

2.

Finally, to the extent the panel majority deems it proper to

craft (and retroactively apply) a new duty for recipient law-

yers, it would be at least as appropriate to create corollary

duties and obligations for moving attorneys and courts. For

example, because the lawyer who filed the motion would nec-

essarily be aware of both its filing and its unresolved nature,

it would be as logical, if we were inventing rules outside the

rulemaking process, to impose on the movant’s attorney the

duty to file and serve some notice of ripeness when the dead-

line has passed without a response. Similarly, we could

impose on the court an obligation to notify counsel prior to

ruling on a dispositive motion to which no response has been

interposed. Naturally, however, the proper approach for creat-

ing any such rules would be through the established proce-

dures for amending the Civil Rules, which would ensure the

prospective and evenhanded imposition of additional obliga-

tions on lawyers and the courts.

IV.

Contrary to the panel majority, I would rule that the district

court abused its discretion in denying Robinson’s Rule 59(e)

motion, specifically in failing to properly consider his asser-

tion of a meritorious summary judgment defense. I also reject

the duty to monitor sponsored and applied by the district court

and the majority — a duty essential to their resolution of this

case but antithetical to our notice-based adversarial system.

Accordingly, I would vacate the Order of Denial and

remand for such other proceedings as may be appropriate.

I respectfully dissent.