[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
October 1, 2008
No. 07-15630 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-01334 MD-FAM
DMD DONALD ROBBINS,
Plaintiff-Appellant,
versus
AETNA US HEALTHCARE,
PRUDENTIAL INSURANCE COMPANY
OF AMERICA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 1, 2008)
Before EDMONDSON, Chief Judge, and ANDERSON, Circuit Judge, and
COHILL,* District Judge.
PER CURIAM:
____________________
*Honorable Maurice B. Cohill, Jr., United States District Judge for the Western District of
Pennsylvania, sitting by designation.
After this appeal was scheduled for oral argument, Appellant moved that the
case be taken off the oral argument calendar and decided on the briefs. We initially
denied the motion, but appellant moved for reconsideration reiterating the request
that the appeal be decided on the briefs without oral argument. We grant the
motion for reconsideration, and decide the case on the basis of the briefs.
Appellant makes several arguments for the first time on appeal. Pursuant to
well-established case law in this circuit, we decline to entertain such arguments.
Thus, we decline to entertain Appellant’s argument that the district court’s
September 14, 2006, dismissal order was void.1 Similarly, we decline to entertain
Appellant’s argument for the first time on appeal that the dismissal order was
entered on the wrong docket, thus rendering Appellant’s October 16, 2007, motion
to vacate timely.
The only argument presented to the district court in support of Appellant’s
motion to vacate the September 14, 2006, order was that Appellant “has no record
of receiving the Court’s Order and as such failed to respond.” See Appellant’s
October 16, 2007 “Motion by Plaintiff Donald Robbins, DMD, to Vacate Court’s
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Moreover, we readily conclude in the alternative that the district court’s September 14,
2006, dismissal order is not void. The notice to members of the February 8, 2005, Service List
(which included Appellant’s counsel) was reasonably calculated to give notice to Appellant, and
is presumed to have been received. The record in this case does not establish non-receipt.
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September 13, 2006, Order” and its attached “Memorandum of Law in Support of
Plaintiff’s Motion to Vacate Court’s September 13, 2006, Order.” We construe
Appellant’s motion to be pursuant to Fed.R.Civ.P. 60(b)(1) seeking relief from
judgment on account of mistake, inadvertence or excusable neglect. We agree with
the district court that the motion was untimely, having been filed more than one
year after entry of the September 14, 2006, dismissal order. Moreover, we note
that Appellant has failed to establish excusable neglect. Appellant’s
representation to the district court that he has “no record of receiving” the May 16,
2006, order does not establish non-receipt. The order provided for service upon the
“February 8, 2005, Service List,” a list which included Appellant’s counsel.
Furthermore, numerous responses to that same order were noticed to the February
8, 2005, Service List, which should have alerted Appellant, even if Appellant did
not for some reason receive notice of the May 16, 2006, order itself.
Having carefully considered the briefs and relevant parts of the record in this
case, we readily conclude that the judgment of the district court is due to be
affirmed.
AFFIRMED.
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