The Problem of Mediating While a Court Ruling is Imminent

Missed the train

By: Donald L. Swanson

“[W]e are unaware of any authority suggesting that a district court may not rule on a pending motion for summary judgment while the parties may be attempting to settle the matter outside of court.”

–Third Circuit Court of Appeals in Myrick v. Discover Bank, Case No. 16-1966, fn. 6 (10/7/2016).

The parties, in the Myrick v. Discover Bank case, failed to mediate in a timely manner.  So, the judge ruled on a dispositive motion and dismissed the case.  For the losing party, it’s like showing up late and missing the train.

Facts and Chronology

Plaintiff’s employer fires her for going AWOL.  She had missed work from March 19, 2011, through the date of termination (April 1, 2011), and had no contact with her employer during that time.

So, Plaintiff sues her former employer in Federal District Court for alleged sex, pregnancy, and religious discrimination and for failure to provide a COBRA notice.

One of Plaintiff’s problems is this: She is representing herself . . . and she is not a lawyer.

The Federal District Court dismisses Plaintiff’s discrimination claims but retains the COBRA notice claim for further consideration.

This case chronology ensues:

3/19/2015 – Defendant files a Motion for Summary Judgement and supporting brief
4/08/2015 – Plaintiff files an “Answering Brief”
4/16/2015 – Defendant files a Reply Brief
4/22/2015 – Defendant requests oral argument
5/26/2015 – Defendant files a Motion requesting mediation
6/23/2015 – Court orders parties into mediation, scheduled for August 13, 2015
3/31/2016 – Court grants Defendant’s Motion for Summary Judgment
4/14/2016 – Plaintiff appeals to the Third Circuit Court of Appeals

The Ruling on Plaintiff’s Argument

On appeal, still acting as her own lawyer, Plaintiff raises multiple arguments, including this:

“[T]he case was still pending mediation/settlement. How can you close a case and issue a summary judgment in favor of the defendant when they initiated settlement/mediation proceedings. Just by them requesting mediation/settlement is an admission of guilt.”

It’s in response to this argument that the Third Circuit provides the quote appearing at the top of this article and adds:

–“We see nothing on the District Court docket to indicate that the August 2015 mediation was ongoing when the District Court entered its order in March 2016.”


The Plaintiff in Myrick v. Discover Bank is pro se, and the Third Circuit’s opinion is designated as “Not Precedential.”

Nevertheless, the Court’s ruling is a reminder that:

  • Once a case is submitted to the court for decision, a ruling can happen at any time; and
  • If the parties want the court to withhold decision while mediation continues, they need to ask the court for additional time to conclude the mediation.

**  If you find this article of value, please feel free to share.  If you’d like to discuss, let me know.

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