Petition for Writ of Certiorari — Michael Villecco, Petitioner v. Vail Resorts, Inc., dba Grand Teton Lodge, et al.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL VILLECCO

(Your Name)

PETITIONER

-

vs.

VAIL RESORTS, INC., et al.

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

MICHAEL VILLECCO

(Your Name)

GENERAL DELIVERY

(Address)

DURANGO, CO 81301

(City, State, Zip Code)

None

(Phone Number)

QUESTION(S) PRESENTED

Rule 5(d)(3) of the Federal Rules of Civil Procedure, which authorizes local rules on the subject

of electronic filing, expressly allows documents to be signed electronically. The questions presented are:

Whether a non-filing signatory's typewritten name, placed where the signature would

ordinarily appear on a document filed by electronic means, constitutes a signature.

If so, whether the filing attorney must obtain the non-filing signatory's actual signature prior to

submitting the filing, as to which the courts of appeals are in conflict.

LIST OF PARTIES

{ ] All parties appear in the caption of the case on the cover page.

[XI All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

MICHAEL VILLECCO, Petitioner;

VAIL RESORTS, INC., individually, and dlb/a GRAND TETON LODGE COMPANY, and

GRAND TETON LODGE COMPANY, Respondents

TABLE OF CONTENTS

OPINIONS BELOW

.

I

JURISDICTION...................................................................................................................2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................3

STATEMENT OF THE CASE ............................................................................................4

REASONS FOR GRANTING THE WRIT..........................................................................8

CONCLUSION....................................................................................................................14

INDEX TO APPENDICES

APPENDIX A: Opinion of the Court of Appeals (Aug. 30, 2017)

APPENDIX B: Memorandum and Order of the District Court (Jan. 23, 2017)

APPENDIX C: Judgment of the District Court (Dec. 2, 2016)

APPENDIX D: Memorandum and Order of the District Court (Dec. 2, 2016)

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Allen v. Chanel Inc., No. 12 CV 6758 (RPP), 2013 WL 2413068 (S.D.N.Y. Jun. 4, 2013) ............... 11

Becker v. Montgomery, 532 U.S. 757 (2001) ...............................................................4,8,9

Buruca v. District of Columbia, 902 F.Supp.2d 75 (D.D.C. 2012) ...........................................11

Etienne v. Ameri Benz Auto Serv. LLC, No. PWG-14-2800, 2016 WL 1222569 (D. Md.

Mar. 29, 2016) .......................................................................................................... 11

Fox v. Brown Mem. Home, Inc., No. 2:09-CV-915, 2010 WL 4983153 (S.D. Ohio Dec. 2, 2010) ..... 11

Hunt v. Cnty. of ElDorado, No. 2: 10-CV-01367 JAM-CKD, 2012 WL 4862362 (E.D. Cal.

Oct. 11, 2012) ........................................................................................................10

In re Brown, 328 B.R. 556 (Bankr. N.D. Cal. 2005) ............................................................12

Lambert v. Lowe's Home Ctrs., LLC, No. 1: 14-cv-00107-JHM, 2016 WL 6123239 (W.D. Ky.

Oct. 19, 2016) ..........................................................................................................8

Lancaster v. Phillips Invs., LLC, 482 F.Supp.2d 1362 (M.D. Ala. 2007) ....................................11

Magyar v. St. Joseph Reg'l Med Ctr., 544 F.3d 766 (7th Cir. 2008) ..........................................10

Plaintffs'Baycol Steering Comm. v. Bayer Corp., 419 F.3d 794 (8th Cir. 2005) ...........................9

Richardson v. Gallagher, 553 Fed.Appx. 816 (10th Cir. 2014) ..........................................11, 12

Smith v. Psychiatric Solutions, Inc., 864 F.Supp.2d 1241 (ND. Fla. 2012) .................................11

Sterling Sm'. Bank v JHM Properties, LLC, 717 F. Supp. 2d 1142 (D. Or. 2010) ...........................10

Stucky v. Dept. of Educ., 337 Fed.Appx. 611 (9th Cir. 2009) .................................................10

United States v. Villecco, 3: 14-po-00587-MLC (D. Wyo.) .....................................................5

Valiavicharska v. Celaya, No. CV 10-4847 JSC, 2012 WL 1016138 (N.D. Cal. Mar. 22, 2012) .......10

Waters v. Drake, No. 2:14-cv-1704 (S.D. Ohio Sep. 3, 2015) .................................................8

Zayas V. Adcorindus., Inc., No. GJH- 16-03193, 2017 WL 4296721 (D. Md. Sep. 26, 2017) ............11

STATUTES AND RULES

PAGE NUMBER

Local Rule 5.2(b) (D. Wyo. March 2014) ........................................................................12

Local Rules, D. Wyo., CMIECF Procedures Manual (August 2012), ¶ ll.J.vi. .............................. 12

Rule 5(d)(3) of the Federal Rules of Civil Procedure .....................................................4, 9, 12

Rule 11(a) of the Federal Rules of Civil Procedure ...............................................................4

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from federal courts:

A to

The opinion of the United States court of appeals appears at Appendix

the petition and is

II] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

B to

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

Ix] is unpublished.

II I For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

____________________________________________

to the petition and is

[I reported at

; or,

[I has been designated for publication but is not yet reported; or,

[ I is unpublished.

11

court

JURISDICTION

[xl For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was AUgUSt 30, 2017

[xl No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix

[ I An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on ____________________ (date)

in Application No.

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[1 A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No. _A______

________________

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Rule 5(d)(3) of the Federal Rules of Civil Procedure provides: A court may, by local rule,

allow papers to be filed, signed, or verified by electronic means that are consistent with any technical

standards established by the Judicial Conference of the United States. A local rule may require

electronic filing only if reasonable exceptions are allowed. A paper filed electronically in compliance

with a local rule is a written paper for purposes of these rules.

Local Rule 5.2(b) (D. Wyo. March 2014) provides: A party may file a document by electronic

transmission in accordance with guidelines established by the Court (see CM/ECF Procedures Manual

for Wyoming) at http://www.wyd.uscourts.gov/pdfforms/cmprocmanual.pdf. A filing day is defined as

12:00:00 a.m. to 11:59:59 p.m. The time and date of actual filing are reflected in the Court's digital file

stamp.

Local Rules, D. Wyo., CM!ECF Procedures Manual (August 2012), ¶ ll.J.vi. provides: If a

document requires a signature other than that of the filer (e.g., an affidavit), the filer must obtain the ink

signature of the signatory on the paper document. The filer shall then e-file the document using one of

the signature options. By filing the document, the filer certifies that the document has been signed by all

necessary parties, including affiant and notary if applicable, that the ink-signed version exists, and that

the document will be available in the filer's office for inspection, if necessary.

This rule includes all notarized 'documents.

This rule includes all documents requiring the signature(s) of a non-attorney, but submitted by

the filer (e.g., affiant).

The electronically filed document, as it is maintained on the Court's servers, shall constitute

the official version of that record.

Upon request by an attorney of record, a pro se party or the Court, the ink signature version of

the document must be made available for inspection.

- 3 -

STATEMENT OF THE CASE

Rule 5(d)(3) of the Federal Rules of Civil Procedure authorizes local rules on the subjects of

electronic signatures and electronic verification of documents. In Becker v. Montgomery, 532 U.S. 757

(2001), this Court addressed whether an inmate was allowed under Fed. R. Civ. P. 11(a) to cure his

failure to sign his notice of appeal after the time to give notice of appeal had passed, the Court also

addressed whether an electronic signature could satisfy Rule 11(a). The Court explained that "[w]e do

not doubt that the signature requirement can be adjusted to keep pace with technological advances."

Becker, 532 U.S. at 763. Accordingly, it concluded that a district court could set rules to allow for

electronic signatures but that electronic signatures would not be allowed under Rule 11(a) without such

rules. Id. at 764.

Consistent with Becker, Federal Rule of Civil Procedure 5(d)(3) states that "[a] court may, by

local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any

technical standards established by the Judicial Conference of the United States." The procedures of the

United States District Court for the District of Wyoming require an attorney to obtain the ink signature

of the signatory on a paper document if the document requires a signature other than that of the attorney.

Counsel for Respondents filed a Motion to Dismiss and Certificate of Service through the district court's

electronic filing system. The Certificate of Service contained the typewritten name of a non-filing

signatory preceded by a "Is!" notation where the signature would ordinarily appear. This signature would

be sufficient under the procedures of the United States District Court for the District of Wyoming if

counsel for Respondents had obtained the signatory's ink signature prior to submitting the filing.

However, counsel for Respondents failed to do so, therefore, the typewritten name is insufficient under

Rule 5(d)(3).

This case squarely presents the question whether a filing attorney must obtain a non-filing

signatory's actual signature prior to submitting a document signed electronically by the non-filing

- 4 -

signatory. The evidence permits a finding that counsel for Respondents failed to obtain the non-filing

signatory's actual signature prior to submitting the Certificate of Service, that there is no actual person

who is responsible for the Certificate of Service's content, and that the submission is inauthentic.

Summary of Facts

Petitioner was employed at Respondents' facility located in Grand Teton National Park as a dock

attendant. Several efforts had been made by Petitioner to secure employment as a corral wrangler or

corral clerk before his employment began. Persons responsible for hiring at the facility expressed views

that Petitioner was not a fit for a corral position because he was both an older employee and a man. The

positions were subsequently filled by young women. Soon after being hired Petitioner inquired as to

why only young females had been hired as corral wrangler and corral clerks. After this inquiry,

Petitioner was subjected to numerous instances of discrimination and retaliatory harassment in the

presence of co-workers and denied housing and meal benefits typically provided to employees until he

was constructively discharged.

Specifically, Respondents retaliated against Petitioner by instigating the filing of an unfounded

criminal charge against him upon which he was arrested, jailed and tried for trespassing in Respondents'

executive offices while meeting with some of Respondents' executives to discuss the discrimination and

retaliatory harassment he was experiencing. While worked in his capacity as a senior executive, James

O'Donnell, Vail Resorts, Inc.'s Executive Vice President of Hospitality, Retail & Real Estate,

approved the instigating of the criminal charge against Petitioner. Respondents did not raise at trial a

legitimate reason for causing the criminal charge to be filed, and Petitioner was acquitted of the charge.

See United States v. Villecco, 3: 14-po-00587--MLC (D. Wyo.).

Proceedings in the District Court

Petitioner commenced this action by filing a complaint on January 15, 2016 in the district court.

Petitioner's complaint alleged employment discrimination and retaliation and sought relief under Title

- 5 -

VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Petitioner also

sought remedy from Respondents' intentional infliction of emotional distress.

Petitioner moved forward with discovery expeditiously, consistent with the tight deadlines

imposed by the Scheduling Order in this case. He propounded five sets of discovery requests, including

seventy-six requests for production of documents and thirty-seven interrogatories. Respondents moved

to dismiss the case arguing, among other things, that the discovery was burdensome, disproportional and

irrelevant and on three separate occasions sought an extension of time to respond to the discovery

requests. Despite the district court granting two of the extensions, Respondents failed to provide liiil

responses or any responses at all to the requested discovery of which they complained. On December 2,

2016, unaware that Respondents had moved to dismiss the case, Petitioner served copies of two motions

to compel discovery on Respondents and mailed the originals to the court clerk that same day for filing.

On December 2, 2016, the district court dismissed Petitioner's complaint without prejudice and later

denied the discovery motions as moot.

After learning of the dismissal, Petitioner filed a Motion for Relief under Rule 60(b), arguing the

Motion to Dismiss was not served on him and that the judgment of dismissal was void for lack of due

process. Respondents had filed their Motion to Dismiss on October 31, 2016, including as proof of

service a Certificate of Service bearing a typewritten name of a non-filing signatory preceded by a "Is!"

notation where the signature would ordinarily appear. In response to Petitioner's Motion for Relief,

Respondents resubmitted the Certificate of Service which was identical in all respects to the Certificate

of Service Respondents initially filed. Despite this resubmission bearing the non-filing signatory's

typewritten name instead of the non-filing signatory's actual signature, the district court nonetheless

found that the Certificate of Service had been signed and relied upon it in reaching its decision to deny

Petitioner's Motion for Relief.

- 6 -

The Court of Appeals Decision

The Tenth Circuit affirmed the district court's dismissal of Petitioner's employment

discrimination claim for failure to prosecute his claim, and subsequent denial of his Motion for Relief.

The court of appeals found that the record supports an inference of willful non-compliance. Though

Petitioner argued that a less severe sanction, such as a stay, would've been more appropriate, the court of

appeals found that he didn't raise that argument before the district court, and even if he had done so, a

less severe sanction wouldn't have encouraged any responsiveness from him. The court of appeals

avoided the question raised by local rule and the use of electronic signatures despite it being adequately

addressed on appeal and upheld the district court's finding that Petitioner was properly served with

Respondents' Motion to Dismiss.

Existence of Jurisdiction in Courts Below

This action was commenced by Petitioner in the United States District Court for the District of

Wyoming. The District Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1343(a)(3) and

(4),42 U.S.C. § 2000e-5(f)(3), 29 U.S.C. § 626(c), and 28 U.S.0 § 1367.

The final judgment of the District Court was entered on December 2, 2016. A timely appeal was

filed to the United States Court of Appeals for the Tenth Circuit, which had jurisdiction over the matter

under 28 U.S.C. § 1291.

- 7 -

REASONS FOR GRANTING THE PETITION

This case presents the question that the Court left open in Becker; that has divided lower courts

since: whether a non-filing signatory's typewritten name, placed where the signature would ordinarily

appear on a document filed by electronic means, constitutes a signature. The lower courts that have

answered that question no have relied principally on Becker, which they have interpreted to require a

non-filing signatory to sign a document with a name handwritten or a mark handplaced. See, e.g.,

Lambert v. Lowe's Home Ctrs., LLC, No. 1: 14—cv-00 107—JHM, 2016 WL 6123239, at *34 (W.D. Ky.

Oct. 19, 2016) (an individual who does not have a court-issued login and password to file documents

electronically is not permitted to use an electronic signature). The lower courts that have answered the

question yes have also relied on Becker, which noted that a district court could set rules to allow for

electronic signatures. See, e.g., Waters v. Drake, No. 2: 14—cv-1704 (S.D. Ohio Sep. 3, 2015) ("[t]his

Court's electronic filing policies make an attorney responsible for all documents filed with his or her

password, and that assures the Court that if a document is submitted from that attorney's account, there

is an actual person who is responsible for the filing's content")

Either the lower courts that have answered the question yes are in conflict with the decision of

this Court in Becker or, if they are not so in conflict, the question of whether the filing attorney must

obtain the non-filing signatory's actual signature prior to submitting a document signed electronically by

the non-filing signatory must be faced. In either event, this Court should grant certiorari in this case to

resolve, once and for all, the issue left open in Becker.

A. Public Policy Imposes an Obligation on Attorneys to Obtain an Actual Signature When One is

Required

The Case Management/Electronic Case Filing System ("CMIECF") is the federal judiciary's

electronic case filing system that allows users to file pleading, motions, and other documents from their

computers. A user prepares a document using conventional word processing software and saves it as a

PDF file or uses a scanner to create an electronic copy of a document. After logging on to the court's

-8--

website with a court-issued password, the user enters basic information relating to the case and

document being filed, attaches the document, and submits it to the court.

Rule 5(d)(3) of the Federal Rules of Civil Procedure authorizes local rules on the subject of

electronic filing, See Fed. R. Civ. P. 5(d)(3) (local rule may permit paper to be "filed, signed, or verified

by electronic means"). The Rule expressly allows documents to be signed electronically. Documents that

are associated with pleadings, such as affidavits and other documents which must contain original

signatures or which require verification or an unsworn declaration under any rule or statute, may be

submitted in electronic format. When affidavits or other verified documents must be signed public

policy imposes an obligation on the attorney submitting the filing to obtain the non-filing signatory's

actual signature.

The authenticity of an electronic signature is important for the representations that accompany it

concerning the basis for the statements made in the paper being filed. Attorneys act contrary to public

policy if they electronically file an affidavit or other verified document with what amounts to a forged

non-filing signatory's signature or no signature. Although the Becker court noted that local rules on

electronic filing "provide some assurance

...

that the submission is authentic," the "assurance" is not

present when courts accept electronically filed documents bearing a non-filing signatory's electronic

signature before the filing attorney has obtained an actual signature. Documents should not be filed

electronically before they are signed, as such conduct constitutes a misrepresentation that the documents

have been signed.

B. The Question Whether Attorneys Must Obtain an Actual Signature Has Divided the Lower

Courts

Becker has generated a conflict among the lower courts on whether a filing attorney must obtain

a non-filing signatory's actual signature prior to submitting a document signed electronically by the nonfiling signatory. Two Circuits

-

the Eighth and Ninth

-

have concluded that an attorney must obtain the

non-filing signatory's actual signature. See Piaintffs'Baycol Steering Comm. v. Bayer Corp., 419 F.3d

- 9 -

794, 805-06 (8th Cir. 2005) (upholding district court's finding of bad faith where attorney submitted

electronically signed declaration knowing that declarant had not signed and would not sign declaration

as filed, and the attorney did not inform the court or opposing counsel, and did not take any action to

withdraw the filing); Stucky v. Dept. ofEduc., 337 Fed.Appx. 611, 614 (9th Cir. 2009) (district court did

not abuse its discretion in sanctioning attorney related to misleadingly signed declaration containing a

purported electronic signature; attorney admitted to submitting false declaration, relying on it during oral

argument, and failing to apprise court not only that declaration was not signed, but that declarant, in fact,

refused to sign it). At least one Circuit

the Seventh

-

-

has reached the opposite conclusion. See Magyar

v. St. Joseph Reg'l Med Cir., 544 F.3d 766, 770 (7th Cir. 2008) (finding no abuse of discretion where

district judge allowed affidavit signed by electronic signature, in part because opponent was not

prejudiced, and filing attorney immediately substituted a copy with declarant's actual signature added

near the electronic signature).

Federal district courts are likewise divided on the question. Compare, e.g., Sterling Say. Bank v.

JHM Properties, LLC, 717 F.Supp.2d 1142, 1146 (D. Or. 2010) (declaration filed on behalf of summary

judgment movant, which was filed electronically with the signature represented by an "si" and the name

typed in the space where a signature would otherwise appear, complied with local rules where movant's

counsel retained the declaration with a cursive signature); Hunt v. Cnty. of ElDorado, No. 2: 10—CV01367 JAM—CKD, 2012 WL 4862362, at *2 (E.D. Cal. Oct. 11, 2012) (sanctioning attorney for

violating local rules when he submitted an electronic copy of declaration without having a signed

original copy and using the "Is!" notation, which misled the court and opposing counsel to think that

declarant had signed an original copy prior to the creation of the electronic copy); Valiavicharska v.

Celaya, No. CV 10-4847 JSC, 2012 WL 10 1613 8, at *2 (N.D. Cal. Mar. 22, 2012) (finding attorney did

not obtain proper concurrence from declarant before filing declaration electronically signed by

declarant; attorney admitted that declarant never saw the declaration or approved its contents verbatim),-

-

10

-

Lancaster v. Phillips Invs., LLC, 482 F.Supp.2d 1362,1365-66 (M.D. Ala. 2007) (denying the

defendant's motion to strike an affidavit originally filed with an electronic signature where the plaintiff,

in response to the court's order to show cause, filed a copy of the original, signed affidavit dated the

same day that plaintiff had filed the affidavit with the electronic signature); Smith v. Psychiatric

Solutions, Inc., 864 F.Supp.2d 1241, 1253 n.7 (N.D. Fla. 2012) (noting declaration bearing declarant's

electronic signature is permissible under local rules, provided filing attorney possesses the original

signed declaration), with, e.g., Buruca v. District of Columbia, 902 F.Supp.2d 75, 82 (D.D.C. 2012)

(district court would not set aside electronically signed summary judgment affidavit, even if it violated

federal statute governing unsworn declarations, where any glitch could be remedied by ordering

resubmission of affidavit with manual signature); Fox v. Brown Mem. Home, Inc., .No. 2:09—CV-915,

2010 WL 4983153, at *1 (S.D. Ohio Dec. 2, 2010) (permitting plaintiffs to file a new affidavit

containing the actual signature of affiant after the deadline for filing; plaintiffs conceded that the

original affidavit was improper after defendants moved to strike the original affidavit because it

contained an impermissible electronic signature); Alien v. Chanel Inc., No. 12 CV 6758 (RPP), 2013

WL 2413068, at *3 n. 5 (S.D.N.Y. Jun. 4, 2013) (accepting non-attorney declaration, which was filed

electronically with an impermissible electronic signature, as signed); Etienne v. Ameri Benz Auto Serv.

LLC, No. PWG-14-2800, 2016 WL 1222569, at *3.4 (D. Md. Mar. 29, 2016) (allowing inadmissible

electronically signed affidavit, provided counsel file a new affidavit with affiant's actual signature or an

electronically signed copy that indicates counsel has an original signed affidavit); Zayas v. Adcor Indus.,

Inc., No. GJH-16-03 193, 2017 WL 4296721, at *5..6 (D. Md. Sep. 26, 2017) (same).

The Tenth Circuit acknowledged that there is a division among the lower courts, compare

Richardson V. Gallagher, 553 Fed.Appx. 816, 828 n.12 (10th Cir. 2014) (recognizing "certain federal

district courts in other jurisdictions allow, under their local rules, the submission of non-attorney

declarations with electronic signatures, requiring, in some instances, counsel to retain the original,

-

11

-

signed declaration"), with Id. at 828 n. 12 (citing authority supporting a proposition contradictory to the

court's assertion), but decline to address the issue of the use of electronic signatures. Id. at 828.

Indeed, there is a particle need to resolve a conflict in the lower courts when, as here, it stems

from pervasive confusion over the meaning on one of this Court's decisions.

C. The Question Presented is a Recurring One of Great Importance

Because electronic filing does not eliminate the necessity of an original signature, the questions

presented by this case are of great and recurring significance in the assurance that a non-filing

signatory's electronic signature is authentic. "[T]he integrity of the electronic filing system is at risk if

attorneys are careless in their handling of originals. In addition, attorneys must treat the filing of

electronic documents no differently than the court's prior system. At all times and for all documents filed

with the court, an original signature is required. The same public policy that prevented an attorney from

filing a document on a client's behalf without an original signature still exists in the era of electronic

filing." In re Brown, 328 B.R. 556, 559 (Bankr. N.D. Cal. 2005). Currently, the only types of documents

for which courts typically require parties to obtain the non-filing signatory's actual signature and retain

paper copies are documents in which the authenticity of a signature might, in some circumstances, be at

issue. See, e.g., Local Rules, D. Wyo., CM!ECF Procedures Manual (August 2012), ¶ II.J.vi. ("By filing

the document, the filer certifies that the document has been signed by all necessary parties, including

affiant and notary if applicable, that the ink-signed version exists, and that the document will be

available in the filer's office for inspection, if necessary").

The court below has sought to avoid the question raised by local rule and the use of electronic

signatures arising out of Rule 5(d)(3). The Tenth Circuit in this case completed avoided the issue despite

it being adequately addressed on appeal. Respondents sought dismissal of this case in an effort to avoid

their discovery obligation. Respondents' counsel submitted a Certificate of Service containing a

purported electronic signature and misled the district court to think that an actual person had signed an

-

12

-

original copy prior to the creation of the electronic copy. Service of Respondents' Motion to Dismiss

was contested by Petitioner and Respondents could not establish by other means actual service. The

district court neither found that Respondents' counsel had obtained the non-filing signatory's actual

signature prior to filing the Certificate of Service nor found by other evidence that the Motion to

Dismiss was actually served on Petitioner. On appeal, Respondents' counsel admitted to submitting the

false Certificate of Service, arguing that Respondents had placed a typewritten name in the space where

the signature would ordinarily appear with the intention that it should be the signature of an actual

person.

In this case, despite local rules on electronic filing, there is no assurance that there is an actual

person who is responsible for the Certificate of Service's content or that the submission is authentic.

Respondents have neither provided the district court with an ink-signed version nor have they asserted

that one exists. The serious question of public policy involved in this case, and the effect of the decision

below, if unreversed, on the integrity of the federal judiciary's electronic case filing system makes this

case a peculiarly appropriate one for the exercise of this Court's discretionary jurisdiction.

-

13

-

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

-WAL VILLECCO

Date: November 28, 2017