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Summary: United States Court of Appeals Fifth Circuit F I L E D April 18, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk No. 02-20850 Summary Calendar LORETTA HODGE, ET AL, Plaintiffs. LORETTA HODGE, Plaintiff-Appellant. versus HARRIS COUNTY HOSPITAL DISTRICT, Defendant-Appellee. - Appeal from the United States District Court for the Southern District of Texas (01-CV-H-98-0662) - Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Plaint
Summary: United States Court of Appeals Fifth Circuit F I L E D April 18, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk No. 02-20850 Summary Calendar LORETTA HODGE, ET AL, Plaintiffs. LORETTA HODGE, Plaintiff-Appellant. versus HARRIS COUNTY HOSPITAL DISTRICT, Defendant-Appellee. - Appeal from the United States District Court for the Southern District of Texas (01-CV-H-98-0662) - Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Plainti..
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United States Court of Appeals
Fifth Circuit
F I L E D
April 18, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-20850
Summary Calendar
LORETTA HODGE, ET AL, Plaintiffs.
LORETTA HODGE,
Plaintiff-Appellant.
versus
HARRIS COUNTY HOSPITAL DISTRICT,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(01-CV-H-98-0662)
--------------------
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Loretta R. Hodge appeals the district
court’s denial of her Rule 4(a)(6) Motion to Reopen Time for Appeal
Due to Unique Circumstances. For the reasons stated below, we
affirm the district court’s decision.
I. FACTS AND PROCEEDINGS
On June 14, 2000, Hodge filed a Rule 60(b) Motion for Relief
from Judgment and Memorandum of Law against Defendant-Appellee
*
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that this opinion should not be published and is not precedent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.
Harris County Hospital District (“Harris”). Harris filed its
response on June 30, 2000, and Hodge submitted a reply on July 3,
2000. On July 13, 2000, the district court entered its Memorandum
and Order denying Hodge’s Rule 60(b) motion; however, Joseph
Willie, the attorney who filed the Rule 60(b) motion on behalf of
Hodge, never received notice from the district court that it had
relied on the motion.
On March 12, 2001, 242 days after the district court entered
judgment, Hodge filed a Request for Oral Hearing on the Rule 60(b)
motion. On June 4, 2002, after more than a year had elapsed since
the request for an oral hearing, and almost two years had elapsed
since the district court had issued its decision, Willie wrote a
letter inquiring as to the status of the Rule 60(b) motion. On
June 6, 2002, a case manager for the district court judge
responsible for this case sent an e-mail to Willie informing him
that the memorandum and opinion on the Rule 60(b) motion had been
issued in July, 2000. She also stated that “[t]he docket sheet has
Glenn W. Patterson, Jr. [Hodge’s trial attorney] listed as the
attorney in charge for the plaintiffs. Your name and address is
not listed on the Docket Sheet.”
On June 10, 2002, Willie, on behalf of Hodge, filed a Rule
4(a)(6) Motion to Reopen Time for Appeal Due to Unique
Circumstances; and on June 19, 2002, the district court denied the
motion. Hodge timely filed a notice of appeal to contest this
denial.
2
II. ANALYSIS
A. Standard of Review
Rule 4(a)(6) grants the district court discretion to reopen
the time to file an appeal. We therefore review the court’s
decision for an abuse of that discretion.1
B. Re-opening Time to Appeal
Hodge asserts that the district court abused its discretion by
not granting her motion to reopen the time within which to file an
appeal. She contends that her counsel, Joseph Willie, became the
attorney of record when he submitted the Rule 60(b) motion, and
that the district court denied her due process by failing to
inform either her or her counsel that her Rule 60(b) motion had
been denied. As a result, she argues, we should apply the unique-
circumstances doctrine to her situation and relax the strict
jurisdictional requirements of Rule 4(a)(6) for filing an appeal.
Notwithstanding Hodge’s contention that the factual
circumstances of this case present an issue of first impression in
this court, we have addressed both Rule 4(a)(6) and the doctrine of
unique circumstances previously. Rule 4(a)(6) of the Federal Rules
of Appellate Procedure provides:
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 motion is filed within 180 days after
the judgment or order is entered or within 7
days after the moving party receives notice of
the entry, whichever is earlier;
1
Jones v. W.J. Serv., Inc.,
970 F.2d 36, 39 (5th Cir. 1992).
3
(B) the court finds that the moving party was
entitled to notice of the entry of the
judgment or order sought to be appealed but
did not receive the notice from the district
court or any party within 21 days after entry;
and
(c) the court finds that no party would be
prejudiced.2
We have found that a party who meets the criteria of subpart (B)
must then show that he has “filed his motion seeking to reopen by
the earlier of (1) 180 days after entry of judgment or (2) seven
days after he ‘receive[d] notice of entry’ of judgment.”3 Going
further, we concluded, “[a]bsent the timely filing of such a
motion, the court is powerless to reopen the time for filing an NOA
[notice of appeal].”4 Our prior interpretation of this rule
strongly suggests that Hodge’s argument must fail, simply because
her counsel did not file the Rule 4(a)(6) motion until almost two
years after the district court’s entry of judgment on the Rule
60(b) motion, well beyond the 180 day limit.
In addition, the structure of the federal rules, and our
interpretation of them, supports this conclusion. Rule 77(d) of
the Federal Rules of Civil Procedure “contemplate[s] that the clerk
will notify litigants of the entry of the district court’s
orders,”5 but states that “[l]ack of notice of the entry by the
2
Fed. R. App. P. 4(a)(6).
3
Wilkens v. Johnson, 238 F.3d 328, 331 (5th Cir. 2001)
(emphasis in original).
4
Id.
5
Prudential-Bache Sec., Inc. v. Fitch,
966 F.2d 981, 985
(5th Cir. 1992).
4
clerk does not affect the time to appeal or relieve or authorize
the court to relieve a party for failure to appeal within the time
allowed, except as permitted in Rule 4(a) of the Federal Rules of
Appellate Procedure.”6 In 1991, both Rule 77(d) and Rule 4(a) were
revised to “permit district courts to ease strict sanctions []
imposed on appellants whose notices of appeal are filed late
because of their failure to receive notice of entry of a
judgment.”7 Part of the relaxation was the addition of Rule
4(a)(6) which established “an outer time limit of 180 days for a
party who fails to receive timely notice of entry of a judgment to
seek additional time to appeal....”8 Thus, the heretofore strict
rules on appeal time limits were eased, but only slightly, to
provide “an outer limit of 180 days.” Furthermore, despite such
revisions, we have since reiterated our position that “[p]arties
6
Fed. R. Civ. P. 77(d) (2003). In full, it provides:
Immediately upon the entry of an order or
judgment the clerk shall serve a notice of
the entry in the manner provided for in Rule
5(b) upon each party who is not in default
for failure to appear, and shall make note in
the docket of the service. Any party may in
addition service a notice of such entry in
the manner provided in Rule 5(b) for the
service of papers. Lack of notice of the
entry by the clerk does not affect the time
to appeal or relieve or authorize the court
to relieve a party for failure to appeal
within the time allowed, except as permitted
in Rule 4(a) of the Federal Rules of
Appellate Procedure. Id.
7
Fed. R. Civ. P. 77(d), Advisory Committee Notes, 1991
Amendment.
8
Fed. R. App. P. 4(a)(6), Advisory Committee Notes, 1991
Amendment.
5
may not rely on the clerk to send them notice and absence of notice
is no excuse for not filing a timely notice of appeal.”9 And, to
the extent the 1991 amendments force us to relax our strict, no-
excuse stance, these amendments would only provide a potential
reprieve for untimely appeals for up to 180 days after entry of
judgment.
Hodge argues, nonetheless, that her case presents “unique
circumstances” that merit the court’s relief for time in which to
file a notice of appeal. We have recognized that “[t]he unique
circumstances remedy applies where counsel fails to file a notice
of appeal within the prescribed time based on its good faith
reliance on a mistaken assurance or statement of the district
court.”10 Thus, we have concluded that “the rule applies only where
the district court makes an ‘affirmative representation’ or
‘specific assurance’ that a party’s notice of appeal was proper.”11
Hodge relies on, and urges use to adopt the reasoning of, Hollins
v. Department of Corrections, a recent decision by another
circuit.12 In Hollins, the Eleventh Circuit held that a district
court’s failure to enter a final order on its electronic docket
sheet, in conjunction with court encouragement to rely on this
system, was enough to establish the aggrieved litigant’s reasonable
9
Prudential-Bache Sec., Inc., 966 F.2d at 985 (citing Wilson
v. Atwood Group,
725 F.2d 255, 258 (5th Cir. 1984) (en banc).
10
Id. (citation and internal quotation marks omitted).
11
Id.
12
191 F.3d 1324 (11th Cir. 1999).
6
reliance on the specific assurance of the court that a final order
had not been issued.13
To resolve the case before us, however, we need not attempt to
divine the outer bounds of the type of conduct that amounts to an
affirmative representation or specific assurance in this circuit,
because in this case, there was no word, written or oral, from the
district court, on which Hodge could have relied. And, unlike
Hollins, there is no evidence before us that the Southern District
of Texas had a policy that could have lulled Hodge into inaction.
Neither was Hodge’s reliance on the court’s silence reasonable,
because, as we have indicated, absence of notice is no excuse for
failure timely to appeal.
Other facts surrounding Hodge’s Rule 4(a)(6) motion further
convince us that these circumstances are not so extreme as to
warrant our granting relief. Although Hodge’s Rule 60(b) motion
was filed by Willie with his name on the pleading, he nonetheless
waited 242 days even to contact the court in reference to this
case; and, when he did so, he only requested an oral hearing. It
was not until almost two years after he had submitted his last
brief on the Rule 60(b) motion that Willie actually requested a
status update on the case. Even if we assume arguendo that the
district court mistakenly failed to record Willie’s name and
address as the new attorney in charge, he is not completely
relieved of all responsibility for his case. Indeed, by making 180
days from entry of judgment the outer limit for filing a motion to
13
Id. at 1328.
7
reopen the time in which to appeal, Rule 4(a)(6) sends a message
that the lawyer has the minimal duty to check on the status of a
pending case at least once within six months of submission of the
briefs.14 Thus, waiting almost three-quarters of a year to check
in on a case is simply not reasonable behavior.
We are satisfied that the district court did not abuse its
discretion in denying Hodge’s Rule 4(a)(6) motion.
AFFIRMED.
14
See Latham v. Wells Fargo Bank, 987 F.2d 1199, 1201 (5th
Cir. 1993) (finding “the notion that parties have a duty to
inquire periodically into the status of their litigation”
implicit in Rule 77(d)’s requirement of timely appeal regardless
of whether notice of judgment entry was received).
8
