Opinion
No. 06-4972.
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6 March 1, 2007.
Filed: March 20, 2007.
On Appeal from the United States District Court for the District of New Jersey, (D.C. Civ. No. 06-CV-01028), District Judge: Hon. Dickinson R. Debevoise.
Jeromi Bazuaye, Uniontown, AL, pro se.
Neil R. Gallagher, Office of United States Attorney, Newark, NJ, for Appellees.
OPINION
Jeromi Bazuaye appeals from an order of the United States District Court for the District of New Jersey, denying his motion to reopen the time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). Rule 4(a)(6) allows a district court to reopen the time for appeal when a party entitled to notice of entry of a judgment or order did not receive such notice from the court or any party within 21 days of its entry: (1) upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier; and (2) upon finding that no party would be prejudiced. Here, Bazuaye conceded in his motion that his attorney gave him a copy of the order dismissing his habeas petition on or about May 4, 2006. Coincidentally, the order was entered on that same date.
Bazuaye argues that he did not receive notice that the order was docketed (entered) until he received a letter from this Court on September 16, 2006, indicating that his appeal would be considered for possible dismissal because it was untimely. Assuming that neither Bazuaye nor his attorney received notice of the "entry" of the judgment, it is possible that Bazuaye technically met the requirements for filing a Rule 4(a)(6) motion. However, a district court retains discretion to deny a Rule 4(a)(6) motion even if the requirements are met. See Arai v. American Bryce Ranches Inc., 316 F.3d 1066, 1069 (9th Cir. 2003). As the District Court noted here, pursuant to Federal Rules of Civil Procedure Rule 77(d), "[l]ack 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." "Implicit in this rule is the notion that parties have a duty to inquire periodically into the status of their litigation." Nguyen v. Southwest Leasing and Rental Inc., 282 F.3d 1061, 1066 (9th Cir. 2002) (citations omitted). Bazuaye had actual written notice that the District Court had signed an order dismissing his petition on April 28, 2006. Common sense dictates that the order would soon thereafter be entered on the docket, and it was. The District Court did not abuse its discretion in denying Bazuaye's motion to reopen, which was filed more than four months after he had written notice of the order. The District Court's order will be affirmed.
Bazuaye is proceeding pro se on appeal, but he was represented by counsel when the order dismissing his habeas petition was entered. We note that notice of entry to the attorney would have constituted notice to Bazuaye as well. Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995).