June 21, 2012

Nunc Pro Tunc Cannot Save a Late Filing

Category: Attorney Discipline | Author: | Share:

An attorney has a deadline to file a motion, but files the motion three hours late. The district court says, “Fine,” and uses nunc pro tunc to act as if the motion had been filed three hours earlier. But is this proper? In Justice v. Town of Cicero, ___ F.3d ___ (7th Cir. 2012), Cause No. 11-3876, the Seventh Circuit said it is not. If you miss a deadline, it is your own fault and you must live with it.

In this case, a man lost his lawsuit and asked the district court to reconsider its decision pursuant to Fed. R. Civ. P. 59(e). Pursuant to Rule, he had until November 22, 2011 to file his Rule 59(e) motion. However, the Court’s ECF system recorded that the motion wasn’t filed until 3 AM on November 23rd. He asked the court to deem the motion filed on the 22nd. The district court granted that request, but denied the Rule 59(e) motion. The man appealed.

On appeal, the Court sua sponte raised the issue of whether the motion was timely and held that it was not. It held that the nunc pro tunc order would only have been proper “if Justice had filed his motion on November 22, and the clerk’s office had erroneously treated it as filed on November 23.” Moreover, filing in the middle of the night, before the district court was open for business, did not qualify as filing on the previous day.

Justice’s appeal allows a challenge to the October 25 order only if the 3 AM filing was timely without aid from the district judge’s order. Yet it does not take a reference to Cinderella to show that midnight marks the end of one day and the start of another. Electronic filing systems do extend the number of hours available for filing. Instead of having until the clerk’s office closes, litigants have until 11:59 PM. But e-filing does not increase the number of days available for filing. A document entered into the electronic system at 12:01 AM on a Thursday has been filed on Thursday, not on “virtual Wednesday.” Rule 6(a)(4)(A) is explicit on this point. It says that the last day allowed for filing ends “for electronic filing, at midnight in the court’s time zone”. Just as courts lack the power to grant extensions of time under Rule 6(b)(2), so the judiciary lacks the power to say that one day ends at 4 AM or 9 AM of the next day when an e-filing system is used.

The Court then reminded us all of the dangers of waiting until the last minute to file in an ECF system.

Computers can crash, and a court’s e-filing software can have bugs. If Justice had tried to file at 11 PM on November 22, only to discover that the system would not accept his document, then he could take advantage of Rule 6(a)(3), which extends the time when the clerk’s office is inaccessible.  … But Justice did not transmit his Rule 59 motion on November 22, only to have the court’s software balk; he transmitted it on November 23 and must live with the consequences.

Courts used to say that a single day’s delay can cost a litigant valuable rights. See, e.g., Johnson v. McBride, 381 F.3d 587 (7th Cir. 2004). With e-filing, one hour’s or even a minute’s delay can cost a litigant valuable rights. A prudent litigant or lawyer must allow time for difficulties on the filer’s end. A crash of the lawyer’s computer, or a power outage at 11:50 PM, does not extend the deadline, even though unavailability of the court’s computer can do so under Rule 6(a)(3).

The Court’s warning should be heeded. While I know that lawyers often don’t finish a motion until the deadline for filing is almost upon them, the best practice is not to wait until the last minute to file. You never know when technology will let you and your client down.


  1. Nunc pro tunc cannot be used to deem a late filing as timely.
  2. A party will be excused if the Court’s computer systems prevent a timely filing.
  3. A party will not be excused if the lawyer’s own computer systems cause a late filing.

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