In In re Gates, No. 09-4125, the Fourth Circuit faced a challenge to district court's contempt conviction of a criminal defense attorney for failing to appear in court on time for a plea hearing.
As stated in the decision: "It has long been the rule in the Fourth Circuit that the mere failure to appear in court at a scheduled proceeding is not an act committed in the actual presence of the court and is therefore not punishable summarily under Rule 42(b)."
Here, the attorney's contempt, if committed at all, was outside of the district court's presence. Thus, the district court erred in imposing the punishment in a summary proceeding without affording the attorney notice or an opportunity to respond to the charges.
In Robinson v. Wix Filtration Corp. LLC, No. 09-1167, the court faced a challenge to the district court's denial of plaintiff's post-judgment motions seeking relief from entry of summary judgment in his wrongful termination suit against his former employer and others.
As stated in the decision: "Appellant's counsel knew full well that the deadline for dispositive motions was pending...Plaintiff's counsel knew that he and other members of his firm were experiencing problems receiving emails and that, pursuant to the local rules of practice and procedure, any notice of docket activity would arrive through e-mail."
Thus, in rejecting plaintiff's claim that the district court erred in failing to consider his Rule 60(b) motion and that it abused its discretion in denying his Rule 59(e) motion, the court held that because the plaintiff's counsel was willfully blind to whether the opposing side had filed a dispositive motion, the district court did not abuse its discretion in denying the Rule 59(e) motion, nor did it err in denying the 60(b) motion as plaintiff's counsel's inattentiveness is not an excusable neglect under the Rule.