Kristen Garlans v. Barclays, Inc. (2010)

MEMORANDUM OF DECISION ON MOTION TO VACATE ORDER TO COMPEL ARBITRATION

When an information technology problem in a lawyer's office results in the lawyer missing a court date or missing a non-fatal time limit on the filing of court papers, most courts and most opponents would usually afford that lawyer the courtesy of a pass.   The court writes in this matter to point out that one cannot always rely on the phrase “my network was down” to excuse a failure to attend to court or client business.

The plaintiff Kristen Garlans retained Attorney Angela Kristina Troccoli to commence this lawsuit against Barclays, Inc., alleging that the defendant violated the fair debt collection practices act in attempting to collect a debt from the plaintiff.   On March 11, 2010, the defendant filed an appearance by counsel and filed a Motion To Stay and to Compel Arbitration, alleging that the parties had a written agreement to arbitrate any disputes.   That motion came up on the calendar on March 22, 2010, as a non-arguable matter.   The plaintiff filed no opposition to the motion.   The court granted the motion on March 24, 2010.

On April 6, 2010, the plaintiff filed a Motion to Vacate the Order.   Attorney Troccoli alleged in her papers that from March 10, 2010, to March 22, 2010, she experienced a series of information technology (IT) interruptions in her office that prevented her from accessing the internet for a number of days and prevented her from making and receiving telephone calls on her office phone network.   Troccoli claims that this caused her to be unaware that the defendant's motion was filed and docketed during that period.   At oral argument Troccoli also claimed that her cell phone does not get a signal at her office so that she could not conduct business on her cell phone.   She urges the court to vacate the order compelling arbitration and to allow her to be heard in opposition to the motion to compel arbitration.   The defendant opposes the Motion to Vacate.

The court writes on this matter because the court is concerned by the disingenuous presentation of plaintiff's counsel, who suggests that she was entirely at the mercy of technology, a view that many of us have shared at one time or another, but one that does not entirely explain plaintiff's situation.   Indeed there were three systems that were not affected by the IT catastrophe at plaintiff's counsel's office:

1) Snail mail-The defendant certified that a copy of the motion to compel arbitration was mailed on March 11, 2010, via the postal service just as in the olden days.   Plaintiff's counsel does not suggest that she failed to receive her regular mail from the post office.   And this was not a situation in which the parties had elected to receive service of court papers by electronic means rather than by regular mail or personal delivery.   Cf., Conn. P.B. § 10-13, requiring a written agreement in case of election to receive court papers by electronic means.

2) Computer access to the court file-With the use of her e-filing password and her juris number, plaintiff's counsel had the ability throughout this crisis to access her pending cases in the Connecticut Superior Court from any computer with internet access.   Indeed the New Britain Superior Court has a spacious Court Services Center where lawyers and litigants may use computers, fax machines, and telephones to conduct appropriate business.   The e-filing services of the Connecticut Superior Court are well-organized and user-friendly, and enable any attorney enrolled in E-filing Services to log on at any hour from any location and check the progress of any piece of litigation in which that attorney has an appearance.   On a single screen capture, an attorney can see all of that attorney's upcoming motions for any given Monday short calendar docket, statewide.

3) Shoe leather-Notwithstanding the lack of electronic services at counsel's office, there was nothing that prevented counsel from getting out of her office with its silent phones and non-working computers and setting up shop at home or elsewhere with a borrowed laptop.   Nothing prevented her from driving a few miles from her office into cell phone range to make calls to clients, opponents, and the court alerting them to her problem and inquiring about any upcoming events.   And nothing prevented plaintiff's counsel from actually walking into the Superior Court clerk's office in a relevant location to check on the filings in her cases in order to determine whether she had an approaching court event requiring her attention.

The point is that when one has a fiduciary duty to one's clients and a professional duty to the court, one cannot simply throw up one's hands in the face of an admittedly frustrating problem and take no action to ameliorate the damage.   If an attorney is engaged in the active practice of law, particularly in litigation in the courts, that attorney has to have in place back-up systems-yes, maybe even pen and paper-and back-up plans in case a severe or persistent IT problem strikes.

Here, once plaintiff's counsel realized that this was not a problem that was going to be solved in an hour or a day, it was her responsibility to attempt to meet this challenge through the use of alternate technology or more archaic methods.

That said, the court is reluctant to penalize the client for the passive way in which her counsel approached this issue.   Aside from the passage of an additional few weeks, the court can discern no real prejudice to the defendant in vacating the order compelling arbitration and allowing a hearing on the issue of whether there was in fact an enforceable agreement between the plaintiff and the defendant to arbitrate disputes.

Accordingly, the court grants the Motion to Vacate and assigns the earlier Motion to Stay and to Compel Arbitration, # 101, for an evidentiary hearing on July 7, 2010, 9:30 A.M. The parties shall report to the Civil Caseflow Office for assignment that morning.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.