Many Courts Delay Civil Litigation Due to The Pandemic, But Some Courts Are Pushing Back

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We are continuing to track the impact of COVID-19 on courts and parties in civil litigation across the country. (You can read our prior updates here, here, and here.) The COVID-19 pandemic is affecting every aspect of civil litigation, not only in-person proceedings such as depositions and oral arguments, but also less obvious parts such as service of court papers, completing settlements and even dealing with sanctions. And while some courts continue to adjourn discovery and certain proceedings for lengthy periods of time, other courts are pushing back on requests to further delay cases absent substantive showings by the parties.

The most obvious impact on civil litigation is that courts across the country are canceling in-person appearances. The cancellations are not just being made for status and discovery conferences, but also for substantive appearances like oral arguments on motions for summary judgment or for preliminary injunctions, with many courts deciding such motions solely on the papers submitted by the parties.[1] Other important proceedings have been affected as well. On March 27, 2020, the United States District Court for the Southern District of New York suspended all jury trials until June 1, 2020, and on March 30, 2020 announced that the courthouse would be closed except for “urgent criminal matters” and emergency actions seeking a temporary restraining order.[2] 

Courts all over the country are also staying or otherwise extending deadlines in many civil cases, adjourning discovery deadlines, trial dates, and other proceedings anywhere from a few months to indefinitely.[3] A federal court in California recently granted a motion to stay all proceedings indefinitely based on the fact that “[c]ounsel are unable to go into the office to work and are attempting to work remotely,” and were having trouble “obtaining documents and information” from the defendant.[4] Rather than set a particular deadline for the action to resume, the court directed the parties to submit a joint status report every thirty days “on their current working conditions and abilities to properly litigate this case.”[5] A federal court in Florida, meanwhile, rejected a motion to stay discovery based on a pending motion to dismiss, but instead granted a stay until June 1, 2020 based on “the circumstances caused by COVID-19.”[6] 

Another Florida federal court extended deadlines for fact witness depositions and expert discovery, over the defendant’s objection, based upon “the present difficulties of working remotely with limited staff and resources against the COVID-19 backdrop” and the fact that “a national emergency has been declared by President Trump, the State of New York has been particularly crippled by the outbreak, and courts and other workforces across the nation are stretched thin.”[7] Similarly, a federal court in Ohio stayed consideration of a pending summary judgment motion, over one party’s objection. There, the court found that a stay was warranted because the parties were unable to conduct an inspection of the defendant’s restaurant, which was at-issue in the action, due to “the COVID-19 pandemic and the stay at home order issued by [Ohio] Governor DeWine.”[8]

The pandemic has also impacted some civil litigations in more subtle ways. For example, another federal judge in Ohio recently directed that, “[i]n consideration of the current health emergency occasioned by the COVID-19 pandemic, Plaintiff is ordered to make service of future [court] filings by mailing or electronically and not to make or attempt to make personal or office service of papers until the Governor [of Ohio] has announced an end to the stay-at-home directions presently in force.”[9] In a federal court in Pennsylvania, the court sanctioned an attorney for his repeated failures to comply with court-ordered deadlines, but reduced the amount of the sanction in light of the COVID-19 pandemic. The court had originally (prior to the pandemic) proposed a sanction of $8,000, but reduced the amount to $1,600 because the higher amount would be “too harsh . . . in any environment, and it is particularly true now, when so many practitioners face financial distress as a result of the COVID-19 pandemic.”[10]

Although most courts are extending deadlines and otherwise making changes to normal practices, some courts are pushing back and trying to keep cases on course as much as possible. For example, a federal court in Louisiana recently held that the parties must take all depositions within 90 days of the court’s order.[11]  The court “recognize[d] the potential difficulty in the taking of depositions given the national emergency resulting from the outbreak of COVID-19.”[12] The court nonetheless directed the parties to “make every effort to conduct these depositions, including by remote means if necessary,” and to advise the court within 60 days if the parties could not comply with the 90-day deadline.  The court warned that even then, it would only permit additional time for depositions if the delay “is due to insurmountable obstacles related to the National COVID-19 Emergency.”[13]

Similarly, a federal court in Wisconsin refused to grant the parties’ joint request to extend all pretrial deadlines by 60 days, holding that the parties “must adhere to the pretrial deadlines.”[14] The court acknowledged that “we will not be able to begin trial on May 11, 2020” as previously scheduled, but stated that it nonetheless “expects to have cases ready for trial at the earliest available opportunity.  Blanket extensions will create an overwhelming backlog that the court will not be able to address once the coronavirus emergency abates.”[15] 

In a federal court in New York, a bankruptcy debtor invoked COVID-19 in an attempt to stave off the dismissal of her appeal to the district court from a bankruptcy court decision.[16] The court rejected the debtor’s excuse, which came after eleven months of failing to comply with court ordered-deadlines. The court found the debtor’s attempt to rely upon the pandemic “appalling.” The court explained that

[t]his Court has granted every request for an extension or telephone conference with which it has been presented based on the coronavirus. . . .  Appellant’s request, however, is different.  While the coronavirus outbreak is recent, appearing in the United States and coming to public attention within the last month, Appellant’s failures have been lengthy, repeated and ongoing for nearly a year . . . .  Appellant cannot excuse his longstanding failure to prosecute his appeal by retroactively capitalizing on a recent crisis.  Moreover, [Appellant] is perfectly capable of preparing and filing any submissions remotely (as many other litigants have done), as evidenced by his filing of his response to the Court’s most recent Order.  Indeed, the Court is troubled that Appellant is seeking to use the coronavirus pandemic to justify his continued efforts to indefinitely delay the prosecution of his bankruptcy appeal.[17]

Some courts have been unwilling to release parties from other obligations in civil actions. 

For example, another federal court in New York denied a New York City restaurant’s application to delay making a settlement payment to the plaintiff in light of the COVID-19 pandemic, holding that the agreement was set and the restaurant was required to comply with it despite the circumstances.[18]

In short, courts are largely adjourning deadlines and making other alterations to practice in civil litigation in response to the COVID-19 pandemic. Some courts are resisting this approach, however, depending on the specific circumstances of the litigation. Based on these decisions and those described in our prior updates, litigants seeking to adjourn deadlines or otherwise deviate from normal procedures in civil litigation based on the pandemic should be prepared to demonstrate to the court how and why the pandemic is having a direct impact on their ability to comply with deadlines and other requirements in their particular cases, rather than invoking the pandemic generally.

 

[1] 2020 U.S. Dist. LEXIS 53792 (D. Md. Mar. 26, 2020) (summary judgment); 2020 U.S. Dist. LEXIS 51810 (D. Nev. Mar. 23, 2020) (preliminary injunction.)

[2] https://nysd.uscourts.gov/sites/default/files/2020-03/In%20re_CORONAVIRUS_COVID_19%20PANDEMIC_%20This%20Matter%20Relates%20to_Suspension%20of%20Jury%20trials%20Until%20June%201%202020_as%20a%20result%20of%20Covid_19%20and%20the%20Limitation%20of%20Court%20Operati.pdf; https://nysd.uscourts.gov/sites/default/files/2020-03/Court%20Operations%20March%2030%202020.pdf.

[3] E.g., 2020 U.S. Dist. LEXIS 52953 (D. Nev. Mar. 25, 2020); 2020 U.S. Dist. LEXIS 53618 (E.D. Mo. Mar. 27, 2020); 2020 U.S. Dist. LEXIS 52685 (D. Minn. Mar. 26, 2020); 2020 U.S. Dist. LEXIS 52256 (W.D. Wash. Mar. 24, 2020); 2020 WL 1434440 (D. Nev. Mar. 24, 2020).

[4] 2020 U.S. Dist. LEXIS 50916 (S.D. Cal. Mar. 24, 2020).

[5] Id.

[6] 2020 U.S. Dist. LEXIS 52596 (M.D. Fla. Mar. 26, 2020).

[7] 2020 WL 1472087 (S.D. Fla. Mar. 26, 2020).

[8] 2020 U.S. Dist. LEXIS 51504 (S.D. Oh. Mar. 25, 2020).

[9] 2020 U.S. Dist. LEXIS 50617 (S.D. Oh. Mar. 24, 2020).

[10] 2020 U.S. Dist. LEXIS 53394 (E.D. Pa. Mar. 27, 2020).

[11] 2020 WL 1472909 (M.D. La. Mar. 26, 2020).

[12] Id.

[13] Id.

[14] 2020 U.S. Dist. LEXIS 54152 (W.D. Wisc. Mar. 27, 2020).

[15] Id.

[16] 2020 U.S. Dist. LEXIS 46998 (S.D.N.Y. Mar. 18, 2020).

[17] Id.

[18] Case No. 19-cv-7135, Dkt. Nos. 21-23 (S.D.N.Y. Mar. 24, 2020).