Opinion
Civil Action No. 99-3283-KHV.
April 24, 2001.
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff's motion for an extension of time to appeal (Doc. #22) filed April 12, 2001. Plaintiff previously was incarcerated at Hutchison Correctional Facility ("HCF") in Hutchison, Kansas. On March 3, 2000, based on a detainer action filed in Colorado, plaintiff was extradited to Boulder, Colorado. From March 3, 2000 until March 18, 2001, plaintiff was incarcerated in Boulder, Colorado. During that period, on July 20, 2000, the Court sustained Defendant's Motion For Summary Judgment (Doc. #16) filed April 10, 2000. See Memorandum And Order (Doc. #20). Plaintiff apparently claims that the Kansas Department of Corrections did not forward his mail to Colorado, and that he did not receive a copy of defendants' motion for summary judgment or the Court's Memorandum and Order until he returned to HCF on March 18, 2001. Plaintiff claims that he notified the clerk of the court of his address change. For reasons set forth below, the Court overrules plaintiff's motion.
A party's lack of notice of a final order or judgment normally does not alter the time period to appeal the order. See Fed.R.Civ.P. 77(d). Moreover, except as permitted by Rule 4 of the Federal Rules of Appellate Procedure, district courts are not authorized to relieve a party for failure to timely file an appeal. See id. Rule 4(a)(5), Fed.R.App.P., authorizes a district court, upon a showing of excusable neglect or good cause, to extend the time for filing a notice of appeal if a motion for extension of time is filed within 30 days of the expiration of the time for appeal. In 1991, Congress added Rule 4(a)(6), Fed.R.App.P., which permits a district court to reopen the time for appeal for 14 days, if the court finds that a party entitled to notice of a judgment or order did not receive such notice within 21 days of its entry, no party would be prejudiced, and a party files a motion requesting the extension of time within 180 days of entry of the judgment or order, or within 7 days of receipt of such notice, whichever is earlier. Rules 4(a)(5) and (6) clearly do not apply in this case because plaintiff filed his motion more than 180 days after the entry of judgment.
Plaintiff asks for relief under Rule 58(g)(3), which is found in the Federal Rules of Criminal Procedure and applies to the release of a criminal defendant pending appeal of a conviction or sentence. Rule 58(g)(3) obviously does not apply here.
Before Rule 4(a)(6) was enacted in 1991, district courts often vacated their orders pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, then reissued them to permit a party who had not received notice to file a timely notice of appeal. See, e.g., Harnish v. Manatee County, Fla., 783 F.2d 1535, 1538 (11th Cir. 1986); Wallace v. McManus, 776 F.2d 915, 917 (10th Cir. 1985); Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983); Buckeye Cellulose Corp. v. Braggs Elec. Constr. Co., 569 F.2d 1036, 1038 (8th Cir. 1978); Fidelity Deposit Co. v. USAFORM Hail Pool, Inc., 523 F.2d 744, 750-51 (5th Cir. 1975), cert. denied, 425 U.S. 950 (1976); Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 810 (D.C. Cir. 1974); Cavalliotis v. Salomon, 357 F.2d 157, 159 (2d Cir. 1966). At least two courts employed this procedure after the addition of Rule 4(a)(6). See Lewis v. Alexander, 987 F.2d 392, 396-97 (6th Cir. 1993); United States v. Brown, 179 F.R.D. 323 (D.Kan. 1998). Recently, however, the Tenth Circuit rejected this procedure. See Clark v. Lavallie, 204 F.3d 1038, 1040-41 (10th Cir. 2000).
In Clark, the Tenth Circuit stated:
[W]e are not inclined to follow or approve United States v. Brown, 179 F.R.D. 323 (D.Kan. 1998), relied upon by appointed counsel. In that case, Brown filed a § 2255 motion which the court denied. Because the clerk of the court failed to send Brown a notice of the denial for more than a year, Brown moved for relief under Rule 60(b). Noting that under Fed.R.Civ.P. 77(d) a party's lack of notice does not alter the time period to appeal an order, the court looked to both Fed.R.App.P 4(a)(5) and (6), for direction. Ultimately, although noting Rule 4(a)(6) post-dated Wallace, the court nonetheless interpreted Wallace to view 4(a)(5) and (6) as safety valves, and not as exclusive remedies or exclusive means for extending the time to appeal a district court order. "If relief under Federal Rule of Appellate Procedure 4(a)(5) and (6) is unavailable, then rule 60(b) is available to prevent manifest injustice," id. at 327, precluding a clerical error from penalizing a pro se incarcerated plaintiff. The court further observed a need to distinguish between counseled and uncounseled cases in applying Rule 4(a)(6).
Unlike the Brown court, we see no latitude on the clear and restrictive language of Rule 4(a)(6). Like the Eighth Circuit, we agree the addition of that rule "was designed to respond to the circumstances that had prompted courts to use Fed.R.Civ.P. 60(b)(6) to circumvent the deadlines specified by Fed.R.App.P. 4(a)(5)." Zimmer, 32 F.3d at 360 (citing supporting cases and authority). We also agree the specificity of Rules 4(a)(6) and 77(d) "precludes the use of Fed.R.Civ.P. 60(b)(6) to cure problems of lack of notice." Id. at 361; see also Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000).
The essence of Rule 4(a)(6) is finality of judgment. While application of that concept infrequently may work misfortune, it is an overriding principle which demands enforcement without distinction between counseled and uncounseled cases.
Clark, 204 F.3d at 1040-41 (emphasis added). The Tenth Circuit concluded that Rule 4(a)(6), Fed.R.App.P., trumps Rule 60(b), Fed.R.Civ.P. See id. at 1039. For this reason, the Court is not authorized to vacate its prior order under Rule 60(b) and reenter it so that defendant may file a timely appeal.
Defendant asserts that on some unknown date within the past 12 months, he sent notice to the clerk of this Court that his address had changed. The record does not reflect that the clerk received such a letter. In any event, the Court cannot extend plaintiff's time for appeal at this time. As a result of the rule announced in Clark v. Lavallie, pro se prisoners, as well as all parties, are well advised to frequently check with the clerk's office on the status of their cases, and follow up on any pending inquiries. Although the above rule may seem harsh in some circumstances, the parties, the courts and the public must rely on the finality of judgments.
IT IS THEREFORE ORDERED that plaintiff's motion for an extension of time to file an appeal (Doc. #22) filed April 12, 2001, be and hereby is OVERRULED. The clerk is directed to forward a copy of this Memorandum and Order to plaintiff and counsel for defendants.