Mitchell v. United States of America et al
Order on Motion for Miscellaneous Relief, Order on Motion to Reopen Case
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Secretary of the Army,
ORDER AND OPINION
Motions at Dockets 42 and 47]
I. MOTIONS PRESENTED
At docket 42, plaintiff moved for relief pursuant to Federal Rule of Appellate
Procedure 4, or alternatively, Federal Rule of Civil Procedure 60 so that he can file an
appeal from the judgment in favor of defendant. The motion has been fully briefed.
Oral argument was not requested and would not assist the court.
At docket 47, plaintiff requests a ruling on the motion at docket 42.
At docket 38, defendant filed a motion to dismiss, or in the alternative motion for
summary judgment. No response was filed. At docket 40, the court entered an order
which noted the failure to respond and then stated: “Upon examination of the motion
the court finds that it has merit. Accordingly, the motion at docket 38 is GRANTED.”
Judgment in favor of the defendant was entered at docket 41 on the same day as the
order, October 2, 2007. The time for filing a notice of appeal ran on December 2, 2007.
No notice of appeal was filed.
On January 15, 2008, plaintiff filed the pending motion asking the court to reopen
the time for appeal. The motion relies on Rule 4 of the Federal Rules of Appellate
Procedure (“Rule 4") and Rule 60(b)(1) of the Federal Rules of Civil Procedure (“Rule
60"). Plaintiff requests the court to reopen the time for appeal for a period of 14 days
pursuant to Rule 4, or alternatively, to vacate and then reenter the judgment pursuant to
Rule 60 which would allow a timely appeal to be taken.
Plaintiff argues that relief should be granted because while plaintiff and his
counsel were “cognizant of the court’s orders entered before judgment, they were not
aware of the entry of the judgment itself.”1 Plaintiff’s counsel, Joe P. Josephson,
acknowledges that the Clerk of Court “acted appropriately” by sending an e-mail notice
of the judgment to a former employee of Josephson & Associates, P.C.2 However,
plaintiff explains that Mr. Lerman-Tan “minimized or did not understand the significance
of the e-mail message.”3 According to Andrea Williams, an employee who began work
for Mr. Josephson on October 1, 2007, she saw the e-mail notice of the judgment
shortly after she began work. However, when she mentioned it to Mr. Lerman-Tan, he
said: “Don’t worry about it; it’s not important.”4 Ms. Williams does not recall disclosing
the message to Mr. Josephson; rather, she avers that Mr. Josephson discovered the
judgment on January 15, 2008, when he reviewed a print out of the court docket
provided to him by Ms. Williams.5
Plaintiff argues that this court should re-open the time for appeal pursuant to
Rule 4 or vacate and reenter the judgment pursuant to Rule 60 on the grounds of
excusable neglect. In response defendant argues that because plaintiff was properly
Doc. 42 at 1-2.
Id. at 3.
Affidavit of Andrea Williams, doc. 43 at ¶ 4.
Id at ¶ 5.
notified of the entry of judgment, relief under Rule 4 is not available, and that relief is not
available under Rule 60.
A. Rule 4
Plaintiff first asks the court reopen the time to file an appeal pursuant to
Rule 4(a)(6) of the Rules of Appellate Procedure. Rule 4(a)(6) states:
Reopening the Time to File an Appeal. The district court may reopen the time to
file an appeal for a period of 14 days after the date when its order to reopen is
entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under
Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order
sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is
entered or within 7 days after the moving party receives notice under
Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier;
(C) the court finds that no party would be prejudiced.
The rule sets out three criteria, all of which must be met. The first is that the
party seeking relief cannot have received notice under Rule 77(d) of the Federal Rules
of Civil Procedure within 21 days from the entry of judgment. Rule 77(d) states:
(d) Serving Notice of an Order or Judgment.
(1) Service. Immediately after entering an order or judgment, the clerk
must serve notice of the entry, as provided in Rule 5(b), on each party
who is not in default for failing to appear. The clerk must record the
service on the docket. A party also may serve notice of the entry as
provided in Rule 5(b).
(2) Time to Appeal Not Affected by Lack of Notice. Lack of notice of the
entry does not affect the time for appeal or relieve--or authorize the court
to relieve--a party for failing to appeal within the time allowed, except as
allowed by Federal Rule of Appellate Procedure (4)(a).
Here, service of the notice of judgment was properly made on all parties electronically
immediately after the judgment was entered pursuant to the court’s Electronic Case
Filing system. Plaintiff concedes this point in his motion papers: “It is acknowledged,
and should even be emphasized, that in sending the e-mail message to the former
employee of Josephson & Associates, P.C., the Clerk acted appropriately, and there is
no claim to the contrary.”6
Plaintiff cannot satisfy the first prong of Rule 4(a)(6). It follows that relief is
unavailable under Rule 4.
B. Rule 60(b)(1)
Alternatively, plaintiff relies on Federal Rule of Civil Procedure 60(b)(1) which
provides that a court may relieve a party from a final judgment based on “mistake,
inadvertence, surprise, or excusable neglect.” Plaintiff relies on the proposition that
excusable neglect may be found here, arguing that while Mr. Josephson personally was
aware of the order granting summary judgment, he was unaware of the entry of
judgment until January 15, 2008. Plaintiff cites Pioneer Investment Services Company
v. Brunswick Associates Limited Partnership, et al.7 for the proposition that excusable
neglect may encompass situations where failure to comply with a filing deadline is
attributable to negligence. That is correct, but defendant argues that Appellate Rule 4
forecloses reliance on Rule 60(b)(1) to expand the time for appeal. Defendant also
asserts that plaintiff nas not demonstrated that the neglect here was excusable. It is
unnecessary to consider defendant’s second argument, because the first has merit.
Plaintiff relies on Rodgers v. Watt,8 for the proposition that Rule 60 may be used
as an alternative to Rule 4. In Watt, the Ninth Circuit examined Rule 4 as it was written
prior to the 1991 amendments which added Rule 4(a)(6). The Clerk of Court in Watt
had failed to notify the parties of the entry of judgment, producing a situation in which
appellant had no notice of the entry of judgment in time to seek relief within the
applicable time limit for an extension under Rule 4. In that circumstance, the Ninth
Doc. 42 at 3.
507 U.S. 380 (1993).
722 F.2d 456 (9th Cir. 1983) (en banc).
Circuit found that relief was available under Rule 60(b): “We hold that Rule 60(b) is
available in situations where the excusable neglect does not arise until after the sixty
The contrast between the facts in Watt and those in the case at bar is sharp. To
begin with, the most significant difference, in Watt the Clerk of Court did not notify the
parties that judgment had been entered. Here, notice was given immediately. It may
also be noted that in Watt the secretary for plaintiff-appellant’s lawyer repeatedly
checked the docket to see if a ruling had been made, and repeatedly found only that the
matter was under advisement.10 Here, the docket was not checked, and had it been the
existence of the judgment would have been immediately apparent. Finally, it bears
emphasis that the Watt court’s discussion suggests that where there has been actual
notice in time to make use of Rule 4, as there was here, reliance on Rule 60 would be
Defendant points to In re Stein11 for the proposition that the Rodgers decision
was rendered obsolete by the 1991 addition of Rule 4(a)(6). In Stein, the Ninth Circuit
examined a district court’s denial of Rule 60(b) relief where, over 180 days after entry of
judgment, appellants had filed a Rule 60(b)(1) motion, alleging that they did not receive
notice of the entry of orders denying certain motions. The court found that the 1991
changes, which added Rule 4(a)(6), were designed to respond to the circumstances
that had previously prompted courts to use Rule 60(b)(6) to circumvent deadlines in the
previous version of the rule. According to Stein, Rule 4(a) and Rule 77(d) “form a
tessellated scheme; they leave no gaps for Rule 60(b) to fill.”12
Plaintiff argues that Stein does not control the case at bar, because in Stein, the
parties seeking relief filed their motions more than 180 days after the entry of a final
Id. at 459.
Id. at 461.
197 F.3d 421 (9th Cir. 1999).
Id., 197 F.3d at 426.
order, which is inconsistent with Rule 4(a)(6)(B), while here the motion was made fewer
than180 days after entry of final judgment. That observation is correct, but it
misconstrues the significance and reach of Stein. This court reads that appellate
decision to say that Rule 4 now occupies the field with respect to extending the time for
filing a notice of appeal. Rule 60(b) is no longer available as an alternative. That being
so, it makes no difference that plaintiff filed his motion less than 180 days from the
judgment thereby meeting the requirement of Rule 4(a)(6)(B), because having received
actual notice, plaintiff cannot meet the requirement of Rule 4(a)(6)(A).
The court has considered the cases cited in plaintiff’s reply which stand for the
proposition that Rule 60(b) should be liberally construed. With that proposition, this
court does not find fault. However, Rule 60(b) has to be applicable before it becomes
appropriate to construe it. Here, Rule 4 in its current form, renders Rule 60(b)
For the reasons stated above, the motion at docket 42 is DENIED. The court
having ruled on the motion at docket 42, the motion requesting a ruling thereon at
docket 47 is DENIED as moot.
DATED at Anchorage, Alaska, this 6th day of May 2008.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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