Sometimes, having a “long-planned European vacation” is reason enough to get a person excused from attending to certain duties.
But that didn’t work for a litigant who presented cross-Atlantic travel as a reason for failing to object to a class action settlement before the U.S. Court of Appeals for the Fifth Circuit. In a Monday ruling, it labeled his excuse “lame” and dismissed his appeal.
David Duggan is a class member who objected to a zero-dollar class action settlement and the award of attorney fees in a lawsuit stemming from the merger of two Delaware companies, Crestwood Midstream Partners LP and Crestwood Equity Partners LP.
Duggan missed a Sept. 16, 2016, deadline to object to the settlement, filing an objection instead two weeks later. The district court approved the parties’ settlement and awarded the attorney fees over Duggan’s objection—a decision he appealed to the Fifth Circuit.
In his appeal, Duggan argued that he had good cause for his untimely objection. Although his notice to object to the settlement was dated June 21, 2016, Duggan claimed he did not receive it until “sometime in August.” He was not able to file his objection on time because he had to go on “a long-planned European vacation” from Sept. 7-21, 2016, he explained to the court.
But that didn’t fly with the Fifth Circuit.
“In sum, Duggan’s reasons for his several failures are lame. Duggan opted to go on vacation, which may well have seemed like a good idea at the time,” wrote Judge E. Grady Jolly in a Monday decision. “He submitted his procedurally deficient objection, however, after he returned from vacation and 10 days after the actual deadline. Such choices have consequences.”
Joining the opinion was Fifth Circuit Chief Judge Carl Stewart and Judge Jacques Wiener Jr.
Ted Frank, a senior attorney with the Competitive Enterprise Institute’s Center for Class Action Fairness in Washington, D.C., who represents Duggan, said he has not decided whether to ask the Fifth Circuit to rehear the case.
“We’re evaluating it,” Frank said, adding that the class notice Duggan received in the first place was “constitutionally defective” and was also filed late.