United States Court of Appeals,
Fifth Circuit.
No. 92-4754
Summary Calendar.
James A. LATHAM, Plaintiff,
Marian E. Latham, Movant-Appellant,
v.
WELLS FARGO BANK, N.A., et al., Defendants-Appellees.
April 13, 1993.
Appeal from the United States District Court for the Western District of Louisiana.
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Movant-appellant Marian E. Latham (Latham) is a would-be intervenor in a suit instituted by
her husband against defendants-appellees. Because the suit had already been settled by the parties
and dismissed with prejudice, the district court rejected Latham's attempted intervention. Due
allegedly to the failure of her counsel to receive notice of the entry of the court's order, Latham failed
to make a timely appeal. She thus moved to have the district court set aside its order or to extend
the appeals period. It is from the denial of these two motions that Latham now appeals. We affirm.
Facts and Proceedings Below
The suit that underlies this appeal is a lender-liability action commenced in 1987 by appellant's
husband, James A. Latham (the debtor).1 Following a compromise and settlement agreement
executed between the debtor's trustee in bankruptcy and appellees Wells Fargo Bank, N.A. and First
Security Bank of Utah, N.A. (the banks),2 the district court on July 30, 1990, ordered the dismissal
1
The substance of the lender-liability action is not directly relevant to the disposition of this
appeal. For a detailed account of that suit, see Latham v. Wells Fargo Bank, N.A., 896 F.2d 979,
980-82 (5th Cir.1990).
2
On July 10, 1990, the banks purchased the debtor's claims against them at a judicial auction.
On July 19, 1990, the bankruptcy court approved the transaction. On July 25, 1990, the banks
and the debtor agreed to a joint stipulation of dismissal.
of the suit with prejudice.
On August 14, 1990, Latham, who was not a party to original litigation, filed two motions
in the district court, one seeking leave to intervene or be substituted as a party in the suit and another
couched as a "motion to set aside order of dismissal." The theory of both motions was that Latham's
intervention in the litigation was necessary because the cause of action asserted in the lender liability
suit, and dismissed in the court's July 30 order, was community property.3 Reasoning that Latham's
community property could properly be sold or compromised by the trustee with the bankruptcy
court's approval, and that Latham had expressly renounced her right to concur in the sale or
encumbrance of her community assets, the court denied her motion to set aside the July 30, 1990,
dismissal order. The court also denied Latham's motion to intervene on the ground it was too late
to intervene once judgment had been rendered. These motions were denied on December 20, 1991,
and the court's order was docketed on December 26, 1991.
Latham's counsel claims that the denial order was mailed to the wrong address and thus was
not received by him until January 24, 1992, just three days before the time for filing a notice of appeal
of that order would expire.4 In reaction, Latham, on February 21, 1992, filed two more motions: a
"motion to extend time for filing of appeal" and a second "motion to set aside order of dismissal."
The district court denied both motions on June 18, 1992, and Latham thereafter timely appealed that
order to this Court.
Discussion
At the outset, we emphasize that the only matters before this Court are Latham's two motions
of February 21 and the dist rict court's denial of them. Latham brought no timely appeal from the
December 26, 1991, denial of her August 14, 1990, motions.
3
A similar claim was advanced by the debtor in our earlier decision in this case, but we did not
reach it. See Latham, supra, 896 F.2d at 985 ("We need not consider Latham's argument that if
his personal claims were barred, his wife would still be able to press half of them because they are
community property under Louisiana law.").
4
Latham had thirty days to appeal the court's December 26, 1991, order. See Fed.R.App.P.
4(a)(1). Because January 25, 1992, was a Saturday, Latham had until Monday, January 27, 1992,
to file her notice of appeal with the clerk of the district court. See Fed.R.App.P. 26(a).
I. The Motion to Extend the Time for Filing an Appeal
Latham argues that, because her counsel did not receive notice of the district court's
December 26, 1991, order until just before the expiration of time to file notice of appeal therefrom,
it was error for the district court to deny her request, brought under Federal Rules of Appellate
Procedure 4(a), to extend the time for filing a notice of appeal. We disagree. It is true that the clerk
of the court is required to serve notice of the entry of an order or judgment by mail to the parties
immediately upon its entry. See Fed.R.Civ.P. 77(d). Nevertheless, Rule 77(d) also provides:
"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." Fed.R.Civ.P. 77(d).
Thus, Rule 77(d) clearly states that a party must make a timely appeal whether or not he receives
notice of the entry of an order. Implicit in this rule is the notion that parties have a duty to inquire
periodically into the status of their litigation. See, e.g., Jones v. Estelle, 693 F.2d 547, 549 (5th
Cir.1982) (per curiam), cert. denied, 460 U.S. 1072, 103 S.Ct. 1528, 75 L.Ed.2d 950 (1983). As
the text of Federal Rules of Civil Procedure 77(d) indicates, the only exception to its rule is Federal
Rules of Appellate Procedure 4(a).
Two provisions of Federal Rules of Appellate Procedure 4(a) are potentially applicable in
circumstances such as these. The first, Federal Rules of Appellate Procedure 4(a)(6), as amended
effective December 1, 1991, was specifically designed to deal with cases of late notice. It provides:
"The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or
order did not receive such notice from the clerk or any party within 21 days of its entry and
(b) that no party would be prejudiced, may, 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, reopen the
time for appeal for a period of 14 days from the date of entry of the order reopening the time
for appeal."5 Fed.R.App.P. 4(a)(6).
Rule 4(a)(6) thus allows a court to extend the filing period for a party that receives notice of an order
more than three weeks (but less than six months) after its entry. Assuming that Latham, as she
5
The current versions of Federal Rules of Appellate Procedure 4(a)(6) and Federal Rules of
Civil Procedure 77(d) took effect on December 1, 1991, prior to the court's denial of Latham's
August 14 motions and prior to the date on which Latham's counsel claims to have received
notice of the order. We deem both rules to be binding in this case. See In re Jones, 970 F.2d 36,
38 (5th Cir.1992).
claims, did not receive notice of the court's order until January 24, 1992, she could have sought an
extension under Rule 4(a)(6) on that date. However, that Rule requires a party to seek an extension
"within 7 days of receipt of such notice." Latham did not seek any extension until February 21,
1992—almost a month after receiving notice. Therefore, Latham is not entitled to relief under
Federal Rules of Appellate Procedure 4(a)(6).
Latham's only other po tential avenue of relief under Rule 4(a) is Rule 4(a)(5), which
provides:
"The district court, upon a showing of excusable neglect or good cause, may extend the time
for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the
time prescribed by this Rule 4(a)." Fed.R.App.P. 4(a)(5).
We note initially that Latham's application for an extension was within the time permitted by Rule
4(a)(5). As noted, see supra note 4, the deadline for filing an appeal of the court's December 26,
1991, order was January 27, 1992. Thirty days from that time would be February 26, 1992.
Latham's motion was filed on February 21, 1992. Therefore, her application for an extension, while
not within the appeals period itself, was within thirty days after its expiration. It thus became
necessary for the district court to determine whether Latham had demonstrated that her failure to file
a timely appeal was due to excusable neglect.6 Latham, of course, offers as justification her failure
to receive prompt notice of entry of the court's order. The district court rejected this argument. We
have said both that the excusable neglect standard is a strict one and that a district court's decision
to grant or deny relief under Rule 4(a)(5) is reviewed only for abuse of discretion. See, e.g., Allied
Steel v. City of Abilene, 909 F.2d 139, 142-43 (5th Cir.1990) (per curiam).
We now hold that no such abuse was committed. There is some dispute over whose fault it
was that the notice was sent to the wrong address; however, we see no need to resolve it. A
sufficient reason for denying Latham's request was offered by the district court: her counsel received
the order within the time for filing an appeal yet waited almost a month before requesting an
6
Rule 4(a)(5)'s allowance for extensions in cases of "good cause" (as distinguished from its
"excusable neglect" standard) applies only to requests made before the expiration of the thirty-day
appeals period. See Allied Steel v. City of Abilene, 909 F.2d 139, 143 & n. 3 (5th Cir.1990) (per
curiam) (citing the Advisory Committee Notes to Rule 4(a)(5)).
extension. A related sufficient reason, we think, is that Latham failed to avail herself of Rule 4(a)(6).
That rule was designed to handle cases just such as this one. Yet, as we have seen, Latham waited
too long to seek relief under that provision. This fact is fatal to her claim of excusable neglect under
Rule 4(a)(5). We cannot say that it was an abuse of discretion to deny Latham relief under the
general provisions of Rule 4(a)(5) where but for her own delay she could have sought an extension
under Rule 4(a)(6).
In sum, we are unable to conclude that the district court erred in denying Latham's motion to
extend the time for filing an appeal.
II. The Motion to Set Aside the Court's Order
We now consider Latham's other February 21, 1992, motion, which was styled as a "motion
to set aside order of dismissal." This February 21 motion, which attacked the court's denial of
Latham's August 14, 1990, motions, is obviously a Rule 60(b) motion for relief from an order
(indeed, Latham cited Rule 60(b) in support of that motion). See Harcon Barge Co. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 669 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93
L.Ed.2d 351 (1986).
We review the denial of Latham's February 21, 1992, Rule 60(b) motion only for abuse of
discretion. Although the grounds offered in support of that motion are rather murky, one can find
in the motion three arguments in favor of setting aside the district court's December 26, 1991, order
(which, again, denied Latham's August 14, 1990, motions). First, she reiterates the arguments that
she made in support of her August 14, 1990, attack on the dismissal of the lender-liability suit.
Second, she cites her failure to receive notice of the court's December 26 order. Third, she complains
that she failed to receive the banks' oppositions to her August 14 motions. We will address these
arguments seriatim.
A.
In large part, Latham's February 21, 1992, Rule 60(b) motion is an attempt to revive her
August 14, 1990, motion. Indeed, the first five paragraphs of the February 21 motion repeat verbatim
the five paragraphs that constituted the entirety of the August 14 motion. Latham's brief before this
Court also restates much of the argument made in support of her August 14 motions.
We begin our analysis with the principle, recognized time and again in our case law, that a
Rule 60(b) motion may not be used as a substitute for a timely appeal. See, e.g., Williams v. New
Orleans Public Service, Inc., 728 F.2d 730, 736 (5th Cir.1984); United States v. O'Neil, 709 F.2d
361, 372 (5th Cir.1983); Chick Kam Choo v. Exxon Corp., 699 F.2d 693, 695 (5th Cir.), cert.
denied, 464 U.S. 826, 104 S.Ct. 98, 78 L.Ed.2d 103 (1983); Silas v. Sears, Roebuck & Co., 586
F.2d 382, 386 (5th Cir.1978); Edwards v. Joyner, 566 F.2d 960, 961 (5th Cir.1978) (per curiam).
As we said on one occasion, "Rule 60(b) simply may not be used as an end run to effect an appeal
outside the specified time limits, otherwise those limits become essentially meaningless." Pryor v.
U.S. Postal Service, 769 F.2d 281, 288 (5th Cir.1985).7 Thus, we have frequently upheld district
court decisions denying Rule 60(b) motions where it appeared that Rule 60(b) was being used as a
substitute for a timely appeal. See, e.g., United States v. O'Neil, supra. This is particularly
appropriate in a case such as this one where a Rule 60(b) motion is itself an attack on the denial of
a prior post-judgment motion that asserted virtually identical grounds for relief, and where, as here,
it is filed after the time for giving notice of appeal from the order denying the earlier motion. See
Pryor, 769 F.2d at 288. Obviously, if on February 21, 1992, Latham had attempted to bring a direct
appeal from the December 26, 1991, denial of her August 14, 1990, motion, such an appeal clearly
would have been out of time, and this Court would now have no jurisdiction to consider the appeal.
In effect, by filing a Rule 60(b) motion following the prior denial of an earlier virtually identical
post-trial motion, Latham is using the second motion, which is under Rule 60(b), as an attempt to
resurrect the then expired period in which to appeal the denial of the first motion. This procedural
ploy cannot be allowed to succeed.
When confronted with an analogous situation in Burnside v. Eastern Airlines, Inc., 519 F.2d
1127 (5th Cir.1975) (per curiam), this Court stated:
"The time for notice of appeal on plaintiff's initial Rule 60(b) motion having run, the filing of
another such motion alleging substantially similar grounds for relief does not provide plaintiff
7
We have recognized that this rule may yield "in truly extraordinary cases," O'Neil, 709 F.2d at
373, but this is not such a case.
with a second opportunity for appellate review." Id. at 1128 (citation omitted).
See also Ellis v. Richardson, 471 F.2d 720 (5th Cir.1973) (successive Rule 59 motions); Ratcliff v.
State of Texas, 714 F.2d 24 (5th Cir.1983) (Rule 60(b) motion to attack denial of earlier post-trial
motion). See also Eleby v. American Medical Systems, 795 F.2d 411 (5th Cir.1986). Cf. Hines v.
Seaboard Air Line R.R. Co., 341 F.2d 229, 231 (2d Cir.1965) ("If plaintiff's [second Rule 60(b)
motion] contained only arguments which were made or could have been made on the prior motion,
an appeal from the denial of such a motion would not lie, as the second motion would then truly be
classified as a reargument.").
This is not to say that a party may never mount a Rule 60(b) attack upon the denial of a
previous post-trial motion. However, at least absent truly extraordinary circumstances, not present
here, the basis for the second motion must be something other than that offered in the first.8
B.
The second argument advanced by Latham in support of her Rule 60(b) motion is the same
one offered in support of her motion to extend the filing period, namely, her failure to receive notice
of the entry of the court's order. The law is clear, however, that Rule 60(b) affords no relief under
such circumstances. In Wilson v. Atwood Group, 725 F.2d 255 (5th Cir.) (en banc), cert. dismissed,
468 U.S. 1222, 105 S.Ct. 17, 82 L.Ed.2d 912 (1984), this Court refused to grant Rule 60(b) relief
to a party that had failed to receive notice of the entry of a judgment in time to file an appeal. Relying
heavily on Federal Rules of Civil Procedure 77(d)'s instruction that lack of notice does not halt the
8
The district court stated that Latham's August 14, 1990, motion to set aside was too late to be
considered a Rule 59 motion, and hence had to be considered as one under Rule 60(b), although
the court denied it on grounds equally applicable to both rules. Latham does not challenge the
district court's determination that her referenced August 14, 1990, motion was filed beyond the
ten-day period permitted for Rule 59 motions. The district court's July 30, 1990, order was filed
on that date; the docket sheet does not clearly indicate when it was docketed, although notice of
entry was not mailed until July 31, 1990. If the order was not entered on the docket until July 31,
then the August 14 motion was timely for purposes of Rule 59. Even if that were the case,
however, Latham would still be trying to challenge, by her February 21, 1992, Rule 60(b) motion,
the denial of her earlier post-judgment motion, raising the same grounds in both motions instead
of timely appealing the denial of the first. This is using Rule 60(b) for what an appeal should do;
and it is doing so after time for notice of appeal has run and without adequate excuse. Moreover,
a Rule 60(b) motion does not extend the time for filing a notice of appeal. Cf. Eleby (Rule 59
motion directed to denial of Rule 60(b) relief does delay time for appealing the denial of Rule
60(b) motion).
running of the filing period, we held that "to be relieved from the effect of judgment, a party must
show more than mere reliance on the clerk to give notice of a judgment." Id. at 258. The clear
purpose of Wilson was to cease the practice of "extending the time for appeal by vacating and
re-entering judgments in order to accommodate a party that has not received act ual notice of the
entry of judgment." Pryor, supra, 769 F.2d at 287. Despite the fact that Wilson arose amidst what
the Court described as "unique circumstances," 725 F.2d at 258, subsequent cases have read Wilson
as establishing a clear rule: "failure to receive notice does not justify granting of 60(b) relief to extend
[the] time for appeal." In re Air Crash at Dallas/Fort Worth Airport, 852 F.2d 842, 844 (5th
Cir.1988) (per curiam).9 Even the dissenters in Wilson agreed with the proposition that "Rule 77(d)
makes one exception to Rule 60(b)(6)'s grant of equitable power—the reason cannot be the clerk's
failure to notify." Wilson, 725 F.2d at 258 (Clark, C.J., dissenting). Following Wilson, we have
consistently rejected the use of Rule 60(b) to provide relief for parties complaining of lack of notice.
See, e.g., Prior Products, Inc. v. Southwest Wheel-NCL Co., 805 F.2d 543, 545 (5th Cir.1986) (per
curiam); Alamo Chem. Transp. Co. v. M/V Overseas Valdes, 726 F.2d 1073, 1074 (5th Cir.1984);
Cf. United States v. Awalt, 728 F.2d 704, 705 (5t h Cir.1984) (per curiam) (applying Wilson to a
Federal Rules of Criminal Procedure 35 motion to correct a sentence).
To be sure, Wilson did state that its rule would not reach a party whose counsel "had not
relied on the clerk to give notice of the entry of judgment but had been diligent in attempting either
to delay its entry or to inquire about the status of the case." Wilson, 725 F.2d at 258. Thus, we did
9
Citing the 1991 amendments to Federal Rules of Civil Procedure 77(d) and Federal Rules of
Appellate Procedure 4(a)(6), this Court in In re Jones, 970 F.2d 36, 39 (5th Cir.1992), stated that
"[t]he continuing viability of Wilson ... is now subject to question." It is unclear to us what is
meant by that statement. Perhaps it was intended to be read in context with the statement that
amended Fed.R.App.P. 4(a)(6) does not require the district court to grant relief even if its
requirements are met, id. at 39, and to suggest that though relief was not always required in such
instances we would normally expect it to be granted. Or perhaps Jones meant that there will be
less room for Wilson to operate with the 1991 amendments to Rule 77 and 4(a)(6). We will not
construe Jones to do what it could not, and did not purport to do, namely overrule the en banc
Wilson decision. The final sentence of Rule 77(d), which states that lack of notice does not
excuse an untimely appeal, was unchanged by the 1991 amendment. The advent of Rule 4(a)(6),
if anything, cuts against the idea that Wilson is no longer good law in areas where new Rule (4)(6)
does not give relief because that new Rule now provides a safety valve for whatever harshness
inheres in Wilson's strict interpretation of Rule 77(d).
not apply Wilson in Tubbs v. Campbell, 731 F.2d 1214, 1215-16 (5th Cir.1984) (per curiam), where
the clerk's office misled appellant into thinking that no judgment had been entered, or Prudential-
Bache Securities, Inc. v. Fitch, 966 F.2d 981, 985-86 (5th Cir.1992), where the clerk's office misled
appellants into thinking that an order had been entered (and thus caused them to fi le a premature
appeal). But there is nothing in the record to indicate that Latham's counsel made any effort to
inquire into the status of her August 14, 1990, motion, even though that motion had been filed
seventeen months prior to the time that Latham learned of its denial. Because Latham has failed to
"show more than mere reliance on the clerk to give notice," Wilson, 725 F.2d at 258, her motion must
be denied.
C.
Latham's final argument in support of her February 21, 1992, Rule 60(b) motion is that the
banks mailed their oppositions to her August 14, 1990, m otions to the wrong address. Latham's
counsel had supplied his correct address in the August 14 motions. The banks, however, mailed their
oppositions to the address listed for Latham's counsel in the Louisiana Legal Directory, which touts
itself as the official directory of the Louisiana State Bar Association. Latham argues that, if she had
received the banks' oppositions, as Federal Rules of Civil Procedure 5(a) requires, she would have
been able to file a reply brief. Nevertheless, we cannot agree with Latham that this error warrants
the vacation of the district court's December 26 order. The court reasoned that, notwithstanding
Latham's failure to file a reply brief, its order "was, in all respects, correct as to fact and law." We
need not investigate the merits of that claim to conclude that it was within the court's discretion to
deny Latham's motion. Latham does not explain, either in her memorandum in support of her Rule
60(b) motion or in her brief before this Court, what she could have said in a reply brief to state her
case more convincingly than did her original motion and supporting memoranda.
Conclusion
The district court's denial of Latham's February 21, 1992, motions is
AFFIRMED.