UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-31151
Summary Calendar
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CLIFTON O. BINGHAM, JR., individually as sole
heirs at law and claimants of the estate of
Clifton O. Bingham, Sr., Deceased; MERRILYN B. SMITH,
individually as sole heirs at law and claimants of the
estate of Clifton O. Bingham, Sr.; MARSHA B. CARTER,
individually as sole heirs at law and claimants of the
estate of Clifton O. Bingham, Sr.; ELFA F. BINGHAM,
spouse in community of Clifton O. Bingham, Sr.;
CAROLYN B. SANDERS, individually as sole heirs at law and
claimants of the estate of Clifton O. Bingham, Sr.,
Plaintiffs-Appellants,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Louisiana
(90-CV-25)
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July 16, 1998
Before KING, HIGGINBOTHAM,and DAVIS, Circuit Judges.
PER CURIAM:*
Appellants appeal from an order of the district court denying
*
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this opinion should not be published and is not precedent except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.
their motion to reopen this case. On appeal, appellants raise
three arguments for reopening this case which they did not present
to the district court. We have held that, absent plain error that
affects substantial rights, we will not consider on appeal matters
not first presented to the district court. See Craddock Int’l Inc.
v. W.K.P. Wilson & Son, Inc., 116 F.3d 1095, 1105 (5th Cir. 1997).
Moreover, even where the district court has committed plain error,
we will correct the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id.
The first argument appellants raise is that the district
court’s August 11, 1993 order dismissing this case without
prejudice to the right of any party, upon good cause shown, to
reopen the case within 150 days if a settlement were not concluded
is void for lack of due process because appellants allegedly did
not receive a copy of the order from the clerk’s office. The
district court issued this order upon being advised by the parties
of a tentative settlement.
Under Rule 77(d) of the Federal Rules of Civil Procedure, the
clerk’s office was required to send a copy of the district court’s
order to appellants. We have recognized, however, that Rule 77(d)
implicitly imposes a duty on parties to inquire periodically into
the status of their litigation. See Latham v. Wells Fargo Bank,
N.A., 987 F.2d 1199, 1201 (5th Cir. 1993).
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Appellants claim that they did not receive notice of the
district court’s order until late 1996. During the more than three
years that elapsed between the issuance of the order and the date
on which appellants allegedly received notice of it, appellants
apparently failed to make a single inquiry to the clerk’s office as
to the status of the case. Appellants failed to do so despite the
fact that the district court had previously issued an order
dismissing the case without prejudice to the right of any party to
reopen the case within 90 days if a settlement were not concluded
upon being advised once before by the parties that a tentative
settlement had been reached. Moreover, appellants did not file
their motion to reopen until March 26, 1997, several months after
they allegedly received notice of the order. Under these
circumstances, the district court’s alleged error was not one which
“seriously affects the fairness, integrity, or public reputation of
judicial proceedings.”
The second argument appellants make for the first time on
appeal is that the district court erred in rendering a judgment
against a deceased person, Elfa F. Bingham, an original party
plaintiff who died approximately seven months after appellants
filed suit. Mrs. Bingham, however, was not a party to appellants’
motion to reopen. The notice of appeal filed in this case
specified “Clifton O. Bingham, Jr., et al.” as the parties taking
the appeal. Although Rule 3(c) of the Federal Rules of Appellate
Procedure permits the use of the notation “et al.,” the Advisory
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Committee Notes make clear that the use of “et al.” is sufficient
to identify a party to an appeal only where it is objectively clear
that the party intended to appeal. Fed. R. App. P. 3(c) Adv. Comm.
Notes (1993 Amendment). In light of Mrs. Bingham’s failure to join
in the motion to reopen, it is not “objectively clear” that she
intended to appeal. As appellants do not assert any basis for
standing to raise claims on Mrs. Bingham’s behalf, we conclude that
we lack jurisdiction over such claims.
Appellants’ final argument raised for the first time on appeal
is that the district court’s judgment should be set aside under
Rule 60(b)(6). Although appellants concede that relief under Rule
60(b)(6) is justified only in “extraordinary” cases where none of
the other grounds set forth under Rule 60(b) provide relief, they
fail to allege any extraordinary circumstances justifying relief.
Accordingly, we conclude that the district court did not commit
plain error in failing to grant appellants’ motion to reopen this
case.
For the reasons stated above, the judgment of the district
court is AFFIRMED. For the same reasons, appellants’ motions to
supplement the record on appeal and to stay or remand these
proceedings are moot and hereby DENIED. Appellee’s motion to
strike Exhibit A of appellants’ reply brief is also moot and hereby
DENIED.
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