Ichie Onwuchekwe, et al v. J.O.S. Okeke, et al


UNPUBLISHED OPINION FILED. [09-20713 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 01/06/2011 [09-20713]

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Ichie Onwuchekwe, et ase: J.O.S. Okeke, Document: 00511323829 C al v. 09-20713 et al Page: 1 Date Filed: 12/16/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 16, 2010 N o . 09-20713 S u m m a r y Calendar Lyle W. Cayce Clerk I C H I E CHIBUZO ONWUCHEKWE, An Individual; CHARLES C. CHIKEZIE, A n Individual; MIKE ANUNIKE, An Individual; PETER NWAOGU, An I n d iv id u a l; LINUS M. UDORJI, An Individual; WORLD IGBO CONGRESS, F o r m e r ly a Texas Corporation; WORLD IGBO CONGRESS FOUNDATION, F o r m e r ly a Texas Corporation, P la in t if f s A p p e lla n t s v. J . O. S. OKEKE, An Individual; JEFF U. OHANAJA, An Individual; LUCIUS A K U C H I E , An Individual; FESTUS C. OKERE, An Individual; JOE N. ETO, An I n d iv id u a l; TOBIAS OGU, An Individual; HUMPHREY UBA, An Individual; C H I D I ONYENEKWU, An Individual; ANTHONY EJIOFOR, An Individual; E M M A N U E L MEKOWULU, An Individual; AUGUSTINE UZODIKE, An I n d iv id u a l; WORLD IGBO CONGRESS, INC., A Texas Corporation; WORLD I G B O CONGRESS FOUNDATION, INC., A Texas Corporation; DOES 1 T H R O U G H 50, Inclusive; LOUIS OKONKWO, An Individual; GRACE C. C L A R K , An Individual; CHRIS EMEKA UKACHUKWU, An Individual; D e fe n d a n t s A p p e lle e s A p p e a l from the United States District Court for the Southern District of Texas U .S .D .C . No. 09-CV-1169 B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. Dockets.Justia.com Case: 09-20713 Document: 00511323829 Page: 2 Date Filed: 12/16/2010 No. 09-20713 P E R CURIAM:* T h is appeal arises from a trademark infringement action concerning the t r a d e names "World Igbo Congress" and "World Igbo Congress Foundation." Following the district court's grant of Appellees' motion to dismiss, Appellant file d a motion to vacate under Federal Rule of Civil Procedure 60(b) based inter a lia , on fraud on the part of Appellees' counsel and excusable neglect on the part o f their own attorney. In a two-sentence opinion, the district court denied the 6 0 (b ) motion. We AFFIRM. A s to the fraud allegation under Rule 60(b)(3), Appellants argue that A p p e lle e s ' attorney, Mr. Okorafor, committed perjury by signing a certificate of s e r v ic e stating that he electronically sent the accompanying motion to dismiss t o opposing counsel. The alleged falsehood is that Mr. Okorafor did not send the d o c u m e n t himself, but instead relied on the court's electronic filing system. A lt e r n a t iv e ly , Appellants seek relief under Rule 60(b)(1) on the grounds o f mistake. They maintain that the court's email did not reach their counsel " b e c a u s e there were issues which related to their counsel computer set up of e m a ils receipt." Appellants argue that these issues, which appear to have a ffe c t e d only the motion to dismiss and no other pleadings filed through the cou rt's system, constitute "mistake, inadvertence, surprise, or excusable neglect." FED. R. CIV. P. 60(b)(1). O n appeal, "we recognize that the decision to grant or deny relief under R u le 60(b) lies within the sound discretion of the district court and will be r e v e r s e d only for abuse of that discretion." Edwards v. City of Houston, 78 F.3d Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * 2 Case: 09-20713 Document: 00511323829 Page: 3 Date Filed: 12/16/2010 No. 09-20713 9 8 3 , 995 (5th Cir. 1996). Nothing in the present case suggests that the district c o u r t abused its discretion in denying Appellants' motion under Rule 60(b). Mr. Okorafor's reliance on the court's electronic filing system is an acceptable fo r m of service under the local rules. S.D. TEX. R. 5.1 ("The notice of electronic filin g that is automatically generated by the Court's electronic filing system c o n s t it u t e s service of the document on those registered as filing users of the s y s t e m ." ). Moreover, the district court did not abuse its discretion in doubting t h a t Appellants' counsel never received such an email. Appellants had no d iffic u lt y receiving any other communications sent via the court's system. Even if the district court credited the claim that email settings deflected the notice a w a y from counsel's inbox, it was not an abuse of discretion to conclude that s e n d in g court communications to the spam folder is inexcusable neglect. On t h e s e facts, we cannot find an abuse of discretion. A p p e lla n t s also complain about comments made by the district court fo llo w in g its dismissal order. They argue that, although the court did not state it s reasons at the time of dismissal, it revealed inappropriate justifications d u r in g a telephone conference on August 20, 2009. This argument might be a p p r o p r ia t e in an appeal from the order dismissing the case. Appellants, h o w e v e r , failed to file a timely notice of appeal from that order. The district c o u r t dismissed Appellants' lawsuit for lack of standing on July 31, 2009. From t h a t date, Appellants had 30 days in which to file a notice of appeal. FED. R. A PP. P. 4(a)(1). They did no such thing. This Court therefore declines to c o n s id e r arguments relating to the merits of the district court's order dismissing t h e case. A F F IR M E D . 3

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