Opinion
No. 00-1245, Section: E/5
April 18, 2001
ORDER AND REASONS
Plaintiffs Percy Bryan, Mildred Etienne, Regina Mitchell, Olen Parker, Delveccio Gordon, and Gwen Nash-Hawkins have filed a motion in the instant action to re-open the time to appeal the judgment. Defendant SecurityLink from Ameritech, Inc. ("SecurityLink") opposes the motion.
This is an employment discrimination action originally filed by the plaintiffs in state court on February 29, 2000 and removed by the defendant to this Court on April 25, 2000. The plaintiffs were represented by Hollis Shepherd, designated as Lead Counsel, and Linward J. Martin, III, and Jeffery Anthony Favors, all with offices located at 410 S. Rampart St., New Orleans, LA 70112. Defendant SecurityLink filed an answer and pre-trial and trial dates, and discovery cutoff and motion dates were scheduled.
After defendant attempted to conduct discovery and was unsuccessful in obtaining a response, it filed a motion to compel discovery and alternatively, a motion to dismiss. The Magistrate Judge initially deferred ruling on the motion to dismiss, but granted the motion to compel. Plaintiff's counsel faxed a response to the Magistrate Judge indicated that he was willing to provide answers to the discovery. Ultimately, however, plaintiff's counsel Shepherd never responded to the discovery and indeed failed to appear at the motion to dismiss.
By Report and Recommendation entered October 16, 2000, the Magistrate Judge recommended that the action be dismissed for failure to comply with a discovery order. (Rec. Doc. No. 9). No objections were filed to the Magistrate Judge's Report and Recommendation, and this Court entered Judgment on November 14, 2000, approving and adopting the Report and Recommendation, and entering judgment dismissing plaintiff's complaint with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Rec. Doc. No. 11). The record indicates that copies of all orders and the judgment were mailed to Hollis Shepherd as lead counsel of record for plaintiff. No notice of appeal was filed.
Plaintiffs have engaged new counsel, Lisa Solomon, who has filed on their behalf the instant motion to re-open the time to appeal. In the motion, plaintiffs' new counsel admits that notice of entry of judgment was mailed to plaintiffs' former counsel of record, but he never notified the plaintiff of the judgment. In the motion to re-open the time to appeal, plaintiffs state that they made repeated attempts to contact their attorneys to check on the status of the case, but found the office "ransacked" and the attorneys absent from the office. The Court's staff has attempted to call the former plaintiffs' attorneys by telephone, but was unable to reach plaintiffs' attorneys and a recording at their telephone number stated that the number was disconnected or no longer in service.
Interestingly, a suit by these same plaintiffs against SecurityLink was filed in Civil District Court for the Parish of Orleans, State of Louisiana, on February 26, 2001 by attorney Hollis Shepherd at the same address and telephone number listed above. It was removed to this court on March 30, 2001, assigned civil action number 01-850, and transferred to the undersigned as a related case to this one on April 10, 2001. Plaintiffs state in their motion to reopen the instant case that on March 14, 2001, approximately three weeks after the new suit was filed in state court, they went to Mr. Shepherd's office because they had not been able to reach him and found the office vacant.
Under Rule 4 of the Federal Rules of Appellate Procedure, the notice of appeal in a civil action must be filed with the district clerk within 30 days after the judgment or order appealed from is entered. Rule 4(a)(5) and (6) concerns extending the time and reopening the time to file a notice of appeal, providing as follows:
(5) Motion for Extension of Time
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.
(6) 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 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;
(B) the court finds that moving party was entitled to notice of the entry of 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.
Plaintiffs did not file a motion for an extension of time to file a notice of appeal under F.R.App.P. 4(a)(5) because such a motion would have to be filed not later than 30 days after the normal time for filing a notice of appeal in a civil case expires, or 60 days after entry of judgment. The instant motion was filed approximately 90 days after entry of judgment and thus the time had expired for filing a motion to extend the time to file a notice of appeal.
Instead, plaintiffs base their motion on F.R.App.P. 4(a)(6), acknowledging that all three conditions must be satisfied before the district court may reopen the time for appeal. Plaintiffs suggest that they have established the three prerequisites, i.e., the motion to reopen was filed within 180 days after the judgment, the moving parties, the plaintiffs themselves, were entitled to notice of judgment but did not receive it, and only the plaintiff would be prejudiced by a denial of the motion due to the "incompetence" of former counsel. Plaintiff's Motion to Re-open Time for Appeal, unnumbered pg. 2.
Plaintiffs plainly fail to meet all of the requirements of F.R.App.P. 4(a)(6). While plaintiffs can meet the requirements of subdivision (A), as the motion to reopen the time to file an appeal was filed within 180 days after the judgment was entered, plaintiffs do not meet the criteria established in (B) or (C). Rule 4(a)(6)(B) mandates that the court find that the moving party was entitled to notice of entry of judgment but did not receive it from the court or any party within 21 days. While plaintiffs themselves may not have received notice, the record demonstrates that plaintiffs' former counsel, who was representing plaintiff at the time, obviously did. The docketing sheet attached to the Order and Judgment indicates that copies of it were mailed to Hollis Shepherd, plaintiffs' counsel, and faxed to defense counsel on November 14, 2001. The Order and Judgment mailed to Mr. Shepherd was not returned to the court by the U.S. Postal Service as undeliverable. Further evidencing the fact that plaintiffs' former counsel received the Order and Judgment, he filed the virtually identical lawsuit on February 26, 2001 in state court. He would have had no reason to file the suit again if he did not have knowledge that the action had been dismissed.
Rule 5 of the Federal Rules of Civil Procedure provides that "[w]henever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or by mailing it to the attorney's or party's last known address or, if no address is known, by leaving it with the clerk of the court. . . Service by mail is complete upon mailing." (Italics added). Thus, not only is the Clerk of Court permitted to serve notice of entry of judgment on plaintiffs' counsel, the Clerk is required to serve such notice on plaintiffs' counsel if plaintiffs are represented as they were here. See Avolio v. County of Suffolk, 29 F.3d 50, 53 (2d Cir. 1994) ("Since plaintiffs were then represented by counsel, the notice of entry had to be received by counsel, not the party. See Fed.R.Civ.P. 5(b).")
Every party to a civil action "is deemed bound by the acts of his lawyer-agent and is considered to have "notice of all facts, notice of which can be charged upon the attorney.'" Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386 (1962). Where plaintiffs' counsel has received written notice of the entry of judgment, the motion to reopen time to appeal must be filed within 7 days after receipt of entry of judgment under F.R.App.P. 4(a)(6), as plaintiffs cannot satisfy the requirements of subsection (B) of Rule 4(a)(6). Ryan v. First Unum Life Ins. Co., 174 F.3d 302, 305 (2d Cir. 1999). Receipt of notice of entry of judgment by a party's counsel constitutes notice to the party and precludes the application of F.R.App.P. 4(a)(6). Benevento v. United States, 2000 WL 890381 (S.D.N.Y. 2000)
Based upon the evidence in the record, the Court concludes that former plaintiffs' counsel, Hollis Shepherd, received notice of entry of judgment which was mailed to him by the Clerk. Plaintiffs have therefore not shown that they are entitled to reopening of the time for filing a notice of appeal pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure.
In light of the court's ruling, it is unnecessary to address subsection (C) of Rule 4(a)(6). The Court would merely note, however, that it disagrees with the statement by plaintiffs' counsel that no party would be prejudiced by reopening the time to appeal. Defendant moved for and secured a dismissal with prejudice some months ago and requiring it to defend this action again would prejudice its interest in having secured a final adjudication of the matter. While the plaintiffs may well have been harmed by their former counsel's actions, a finding left to another court, the observations of the Supreme Court in Link, 370 U.S. 626, 634 n. 10, 82 S.Ct. 1386, 1390, n. 10, are particularly appropriate: "Clients have been held to be bound by their counsels' inaction in cases in which the inferences of conscious acquiescence have been less supportable than they are here, and when the consequences have been more serious. [citations omitted]. Surely if a criminal defendant may be convicted because he did not have the presence of mind to repudiate his attorney's conduct in the course of a trial, a civil plaintiff may be deprived of his claim if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney's conduct falls substantially below that is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice. But keeping this suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be visiting the sins of the plaintiff's lawyer upon the defendant."
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of plaintiffs to re-open the time to appeal be and is hereby DENIED.