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A computer glitch that sparked a round of hardball litigation has now resulted in a mini-lecture on civility from a federal judge that urges lawyers everywhere to cut each other a break when it makes sense. “Lawyers who treat other lawyers with civility can expect the same when they inevitably find themselves in similar situations. In the long run, such behavior not only is totally consistent with zealous advocacy, but also inexorably promotes the interests of justice,” U.S. District Judge Bruce W. Kauffman of the Eastern District of Pennsylvania wrote in Philadelphia Gear Corp. v. Swath International Ltd. In the suit, PGC, a manufacturer of power transmission equipment, is seeking a declaratory judgment that it is not liable to Swath, a builder of marine vessels, for the malfunctioning of two marine gear drives sold by PGC to Swath. Early on in the case, Kauffman dismissed PGC’s claim for fraudulent misrepresentation, holding that the suit failed to allege a duty that would support such a claim. Since the dismissal was “without prejudice,” PGC’s lawyer, Kevan F. Hirsch of the Blue Bell, Pa., office of Kaplin Stewart Meloff Reiter & Stein, set out to remedy the problem by filing an amended complaint. Hirsch told Swath’s lawyers, Charlene Q. Kalebic and Nicole Finitzo of Schiff Hardin & Waite in Chicago, to expect a new version of the suit. But due to a mistake in his office, Hirsch accidentally filed the exact same document — with no changes to the claim that had been dismissed. Although he had proofread the new version, Hirsch said that when it came time to file it, his secretary accidentally retrieved the original complaint from the computer system, changed its title to “First Amended Complaint,” and added the date and a certificate of service. Hirsch said he then signed the document without proofreading it again. Swath’s lawyers quickly responded by filing both an answer to the suit and a renewed motion to dismiss the claim for fraudulent misrepresentation — this time with prejudice — because “despite the court’s clear and definite instructions, PGC failed to make any changes to its original complaint.” When the defense motions landed on Hirsch’s desk, he quickly e-mailed his opponents to explain the glitch and ask that they cut him a break. “I am a victim of sophisticated word-processing, self-editing of documents on the system and my own inattention. I write to inquire whether we can reach agreement on resolving the error on my part,” Hirsch wrote. But Hirsch also noted in the e-mail that his opponents’ tactics had made the problem a difficult one. “Ordinarily one could file an amended pleading in response to a Rule 12 motion as Rule 15 allows an as of course amendment until a responsive pleading is filed. You have, however, also answered the First Amended Complaint, which eliminates that option,” he wrote. Hirsch noted that one of his options was to explain the glitch to the court and ask for leave to file a second amended complaint, but said he “would like to avoid that.” Attached to the e-mail was the correct version of the first amended complaint. Hirsch asked the defense lawyers to stipulate to his filing it under the “consent of the adverse party clause” of Rule 15(a). But in a telephone call a few days later, Swath’s lawyers told Hirsch that he would have to pay for his mistake. At first, Kalebic and Finitzo insisted that Hirsch should pay $12,750 — the fees Swath had allegedly incurred in drafting its answer to the flawed First Amended Complaint. After Hirsch refused, the defense team demanded that to win their consent to amending, Hirsch should pay at least $6,000 — the fees Swath had incurred in filing its motion to dismiss and the anticipated cost of revising its answer. At that point, Hirsch gave up and turned to Kauffman. In response, the defense team urged Kauffman to order that PGC be held accountable for its lawyer’s mistake and be ordered to reimburse Swath for the time it wasted responding to a misfiled document. Both sides got a lecture when Kauffman handed down his nine-page memorandum disposing of the motions. The judge chided Hirsch for his sloppiness and reminded him that his signature on a court filing counts as a promise that he has read it. “Attorneys must always keep in mind that computers are not infallible … nor are secretaries, paralegals, or other lawyers. PGC’s counsel thus has no excuse for his admitted failure to read the First Amended Complaint carefully before signing it and causing it to be filed. An attorney signing a motion or pleading must make absolutely certain that it is the document he or she intends to file,” Kauffman wrote. Kauffman also said he agreed with the general point made by the defense lawyers that requiring PGC to pay for its lawyer’s error could “create a sufficient economic incentive to minimize such practices in future cases.” But since Hirsch’s error “caused no prejudice,” and because it was “immediately obvious” to the defense lawyers that it was a clerical error, Kauffman found that “the imposition of such a penalty would be questionable.” Instead, Kauffman found that the defense lawyers deserved an even firmer lecture than the one he had just given Hirsch. “Swath is correct that the motions currently pending before the court represent the ‘needless expenditure of judicial resources.’ It is the court’s view, however, that any prejudice to Swath from allowing PGC to file a Second Amended Complaint would be a result of the actions of Swath’s counsel, not PGC’s counsel,” Kauffman wrote. Kauffman said he agreed with Hirsch’s argument that “a simple telephone call to counsel for PGC would have disclosed the error, avoided the motion to dismiss … and eliminated the need for PGC to request leave to file a second amended pleading.” The defense lawyers argued that Hirsch was trying to blame them for his own mistake, and that they had acted in good faith when they filed the answer and motion to dismiss because they assumed that PGC “had elected to stand on its pleadings.” Kauffman was less than impressed. “Although Swath’s contention is technically correct, it ignores the code of civility that once distinguished our profession,” Kauffman wrote. Instead, Kauffman said, the controversy “could have been entirely avoided with the exercise of the slightest bit of civility.” Although he didn’t want to condone Hirsch’s error, Kauffman said he found the defense lawyers’ response “unnecessarily harsh.” “Simply put, it is not in keeping with the concept of civility to take unfair advantage of an adversary’s obvious and non-prejudicial mistake,” Kauffman wrote. “In the interest of civility, Swath’s counsel should have called PGC’s counsel to alert him of the obvious mistake and agree on a way to correct it as expeditiously and economically as possible. Instead, Swath chose to file a motion to dismiss. Because Swath had no need to respond to PGC’s pleading in this totally inflexible manner, there is no basis for its request that PGC be required to pay its self-inflicted attorneys’ fees.”

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