*1 JOLLY, Before WIENER DENNIS, Judges. *2 WIENER, Judge: awaiting Texas being execution after con-' victed and sentenced to death a state 4(a)(1) “Rule of the Federal Rules of jury Texas. Presumably having provides Appellate party Procedure that a exhausted his direct appeals and collateral judgment who wants to or order law, under state sought Wilkens habeas in a civil case must file a entered relief in federal district court. On June appeal with the clerk of the district court 18, 1999, the district court entered days entry within 30 after the date of denying petition. ment Wilkens’s Al- or order from which 4(a)(5) though entry in the district court’s appeal will be taken. Rules docket sheet for this provide may, upon that the district court case reflects that the motion, reopen] copies clerk mailed Judgment [or extend the time for of the Final 4(a)(5) (the appeal. a notice of and Denial of Motions “judgment”) to party available to a who shows excusable attorneys of record that day,2 same neglect or good failing cause to file counsel for Wilkens avers that he never 4(a)(6) days provided; within the 30 until, received a at request may applied be where the court finds that attorney court, staff for the a copy district moving party did not receive notice of him by Sep- was “faxed” to the court on entry a judgment or order ‘from the 7,1999.3 tember any party days [district court] or A subsequent entry, docket this one dat- entry’ party of its and that no other would 7, 1999, ed October confirms Wilkens prejudiced by allowing be filing of filed a Motion for Leave to File Late No- 4(a)(6) appeal. late notice of Relief under Appeal tice of on October 1999. Docket only ‘upon is available motion filed within entries dated October 1999 reflect entry or order 1999:(1) filings three on October The notice, or within 7 days of such ” district court’s order granting Wilkens’s whichever is earlier.’ motion, October Wilkens’s notice question “This case raises the whether (“NOA”), and Wilkens’s motion seven-day filing window of Rule (“IFP”) proceed pauperis forma opened when receives no- [fax] November, appeal. granted the court tice of the of a or order proceed Wilkens’s motion to IFP on appeal [the court].”1 For the rea- and issued a appealability certificate of forth, hereafter sons set we answer that (“COA”). question in the affirmative and dismiss this II.
I. ANALYSIS AND FACTS PROCEEDINGS A Petitioner-Appellant Joseph question James threshold implicit Wilkens, currently every Jr. is on death row in ease comes before us is whether Prisons, attorney attorney’s Benavides Bureau 79 F.3d or his at the last (D.C.Cir.1996). provides known address. Rule 5 also complete upon mailing." mail is "[s]ervice 2. A June 1999 docket in the district added). (Emphasis Judg- court record of this case states: “Final petition ment this for writ of habeas deputy 3.This docket indicates that the corpus is DENIED. All motions either “(tm)” (ini- entry, clerk who made the docket previously hereby ruled on are DE- McEwen), "[f|axed Toya tials of Memoran- Brown) (Signed by Judge NIED. Paul cc: Judgment Breding dum Order and Final to M. (baf).“ Attys. di- 6/18/99 now, per request atty.” of staff Then as coun- rects the clerk "serve notice of the judgment] by sel record for Wilkens was Mark W. Bred- provided [of mail in the manner 5,” specifies mailing ing, Esq., Tyler, for in Rule which to the Texas. the district court Respon- jurisdiction. appellate 1999; case was entered on June this questioned has not Johnson dent-Appellee until was not filed NOA contrary, he has on the jurisdiction; our 12, 1999, speci- more than the considerably to Petitioner’s “Non-Opposition filed maximum of 30 fied “in the in- Appeal” declining, Out-of-Time *3 jurisdiction to are without judgment.9 We appellate oppose to re- justice,” terest then, unless his appeal, hear Wilkens’s judgment. court’s of the district view by pro- is somehow rescued late-filed NOA by litigant, a how- challenge a absent Even 4(a)’s pro- comply with Rule ceedings that of our ever, examine the basis we must reopening11 the extending10 for or visions A cannot jurisdiction sua sponte4: A non- within which to file an NOA. time jurisdiction;5 appellate waive a defect civil in federal litigation federal to by mu- jurisdiction be created can neither to file an NOA court who fails timely parties.6 -of the tual consent 4(a)(l)’s 30-day period follow- within mandatory pre- is a filing of a valid NOA from ing entry of order juris- appellate to the exercise condition avail- appeal sought an is still has which deter- Consequently, we must diction.7 appeal rescuing for his able two lifelines is somehow Wilkens’s NOA mine whether appeal. One through late-filed notice mandatory prereq- satisfy this sufficient is the extension specified lifeline hearing 4(a)(5) (“section his case on (5)”), uisite to our the other is the filed until was not in Rule reopening though specified even his NOA lifeline (“section (6)”). months after almost four inquiry whether to this ment. Central makes clear Section 12, October 1999 order the district court’s empowered to time the district court is 4 motion for granting Wilkens’s putative lifeline to a the extension toss valid; out of time is to file his NOA leave seeking when a motion exten- appellant is not, is Wilkens’s NOA after if it is then neither no later than 30 sion filed days specified expiration original 30 subsequently grant- court’s or the district i.e., 4(a)(1)(A), than in Rule no later 60 ed COA. of the order or peti- Notwithstanding the reason for Only sought. which then custody here, his convic- being tioner’s — wheth- can the district court even consider punishable by death —a tion of a crime (5)’s two exclusive er either of section corpus filed in petition a writ of habeas for an granting such extension— grounds proceeding.8 a civil Thus federal court is neglect good excusable cause—has Rules of Civil Procedure the Federal file a As Wilkens did not demonstrated. (“Fed.R.Civ.P.”) proceed- habeas govern his for extension of time to file motion court, and the civil ings the district 18, days following the June NOA (5)’s Appel- Federal Rules of provisions of the judgment, section life- 1999 extending an (“Fed.R.App.P.”) govern filing the time for late Procedure line for available to Wilkens had ceased to be proceedings habeas NOA Fishery. Baker, 174, 181, (5th 27 S.Ct. Key, 8. 203 U.S. 4. 205 F.3d 774 United States Cir.2000); (1906). Cozby, Mosley 813 F.2d 660 L.Ed. 142 51 . (5th .1987) Cir 4(a)(1)(A). Fed.R.App.P. 9. Co., Operating 5. Vincent v. Consolidated 1994). (5th F.3d Cir. 4(a)(5). Fed.R.App.P. 10. Lines, Inc., 6. Beers v. North American Van (5th 1988). F.2d Cir. 4(a)(6). Fed.R.App.P. 11. Whitley,
7.
Dison v.
1994).
Cir.
(B)’s
long
subpart
to the district court
before Octo- meets
require-
threshold
ber,
for eligibility
ments
to seek reopening.
only subpart
This leaves
for us to
(6)’s
said, only
reopening
That
section
consider.
possibility
remains as a
for rescu-
lifeline
(A),
ing
subpart
late-filed NOA.12
Section
Under
such as
authority for
is the exclusive
the district Wilkens who meets the criteria
(B)
reopening
court to order the
of an other-
is eligible to file a section motion to
expired and no longer
reopen
wise
extendable
attempt
to demonstrate the
A
time for
NOA. district court has
prejudice
absence of
as required by sub-
(C).15
authority
part
to toss the
lifeline to a
moving
For the
party to be
putative appellant only after
eligible
a motion to
obtain
valid reopening order
by party
court,
is filed
who is eligible
however,
from the district
he must
*4
(6);
provisions
do so under the
of section
have filed his motion seeking
reopen by
to
(1)
the district court
reopen
cannot
sua
the earlier
days
of
after entry of
And,
(2)
sponte.13
eligibility
judgment
to file a
days
seven
after he “re-
reopen
governed exclusively
motion to
is
entry”
notice of
of judgment.
ceive[d]
Ab-
(6),
subparts
i.e.,
three
motion,
the
of section
timely filing
sent the
of such a
the
4(a)(6)(A)
(B) (“sub-
(A)”),
(“subpart
powerless
court
reopen
is
to
the time for
(Q
(B)”),
(C)”).
part
(“subpart
and
filing an NOA. It
not disputed
is
Wilkens’s October
1999 motion
per-
for
(B)
Subpart
gatekeeper
is the
provision
mission to file an NOA out of time was
(6).
specifies
of section
It
only
(1)
filed
expiration
well
the
of the
before
(1)
party who
was entitled to
of
180-day period after the entry
of
(2)
entry
judgment,14
but
did not receive
(2)
18, 1999,
ment on June
but
well
(a)
after
notice from either
the district court or
expiration
the
of the seven-day period fol-
(b)
(3)
any party
days
within 21
after
lowing his
actual receipt
counsel’s
of the
judgment,
eligible
to file a motion to
copy
judgment
Septem-
facsimile
of the
on
reopen. None contest that Wilkens was
7,1999.
ber
entitled to notice of
of judgment
facts,
under Rule
or that he did
In light
undisputed
not actual-
of these
our
ly
law,
receive notice from the court or
question
final
not fact—is
—one
days
within
after entry,
copy
so he whether the
judgment
the court’s
4(a)(l)'s
12. Rule 4. APPEAL
Referring
30-day
AS OF RIGHT—
14.
period
to Rule
( n )
filing
party's
for
a notice of
and the
Appeal in a Civil Case
entitlement of mail service of notice ( n ) Reopening
Appeal.
judgment
the Time
to File an
from the clerk of the district
may reopen
77(d).
pursuant
The district court
the time to file
court
to Fed.R.Civ.P.
period
days
an
for a
of 14
after the
entered,
date when its order to
but
prejudice
only
15. Absence of
is the
substan-
following
if all the
conditions are satis-
requirement
tive
for the district court to have
fied:
authority
grant
reopening
to
order. Such an
days
the motion if filed within 180
after
order differs
extension order under
judgment
the
or order is entered
or within
(5),
requires
section
which
the movant
days
moving party
after the
receives notice of
good
demonstrate
cause
either
or excusable
earlier;
entry,
the
whichever is
neglect
clearly more onerous than
—standards
(B)
moving party
the court finds that the
prejudice
just
clearly inap-
absence of
and
was entitled to notice of the
of the
(6).
plicable to section
We assume that Wilk-
sought
appealed
or order
to be
but
(C)’s
prejudice
ens met
test. This
did not receive the notice from the district
alia,
assumption
strengthened by,
inter
any party
entry;
after
grant
district court’s
of Wilkens's motion and
and
Respondent's filing
of a Notice to Court of
(C)
the court
finds
no
would be
Non-Opposition to Petitioner's Out of Time
prejudiced.
6, 2000,
Appeal
response
on March
to our
13. Id.
January
show cause order of
notice,
delivery
about
by the district clerk’s office whatsoever
faxed
that was
particular
specification
and received
hand much less
of a
September
day,
(service
same
for Wilkens that
process,
counsel
delivery
or-
method
entry [of
“notice of the
qualified as
mail,
mail,
mail,
dinary
registered
certified
purpose
opening-
for
judgment]”
e-mail,
delivery,
hand delivery, facsimile
(A)’s
seven-day mo-
alternative
subsection
etc.);
who
nothing
and
about
other than
copy
If the faxed
did
tion
window.
moving party
is authorized
receive
(1)
180-day period
then
qualify,
(counsel
moving party, re-
the notice
for
(2)
lifeline remained
applied,
etc.).
office,
sponsible party in home or
available,
language
we read
plain
When
of sub-
motion,
order
court’s October
(A),
part
we can reach no conclusion but
motion, Wilkens’s Octo-
granting
that the fax
—sent
filed;
NOA,
timely
were all
ber 12
the clerk of the
court and received
jurisdiction
hear this
would
Wilkens,
record for
hand
counsel of
If, however,
the fax
21 days
more than
but less than 180
purposes
of sub-
qualify
did
sufficient to
—was
(A),
seven-day provision
part
then
(A)’s
open subpart
seven-day
window
trumped
180-day provi-
it
applied,
opportunity within which Wilkens could
being the earlier of those two
sion
motion
have and must have filed a
to re-
*5
alternatives,
motion,
and Wilkens’s
the
from
open
precluded
seeking
or forever be
order,
are ab-
and Wilkens’s NOA
court’s
reopen.
to
juris-
and we
have no
nullities
would
solute
It’s
to consider this
diction
sum,
plain
In
irrespective of whether the
that.
simple as
(A)
subpart
in a
words of
are read
vacuum
pari
plain
in
with the
of
or
materia
words
(B)
subpart
Unlike
4(a)
entirety,
in
the message
its
(A)
(6‘),nothing
subpart
in
section
(A)
subpart
pellucid: Any
is
written16 no-
particu
purports
to ascribe
section
potential
ap-
tice of
received
the
lar
to the
qualities or formalities
words
(or
pellant
conceivably by
or his counsel
There’s nothing
“receive” or “notice”:
person),
regardless
some other
or
how
physical
of the notice
about the
attributes
sent,
open
subpart
whom
to
(oral
electrostatic, carbon,
is sufficient
written;
or
(A)’s seven-day
This
etc.);
window.17
conclusion
copy,
nothing about
certified
who
(the court,
jurispru-
is also consistent with relevant
the
furnish
notice
the
must
circuits,
clerk,
opposite,
dence from other
which we now
the
an interested
etc.);
briefly.18
party,
nothing
disinterested third
examine
court,
Dep’t Agric.,
distinguish-
16.
v. U.S.
the
this case is
See Bass
Cir.2000)
(D.C.
Benavides,
(holding that oral
able from
20. 32 F.3d Cir. But cf. Bass, (5th Cir.2000). supra n. 26. 211 F.3d if we inclined to copies judgments follow- But even were do so receipt of Ryan, and requests because, alia, Bass ing their inter is in custody Wilkens hand, of the writ- and the the one execution, awaiting we could not take the judgment by ten facsimile that is Al- suggested action counsel. counsel, on other hand. All though, general proposition, as a Rule aspect this circuits that addressed suspend authorizes us Federal receipt of rule have concluded that Appellate for “good Rules of Procedure potential written notice counsel for the case, particular in a Rule is cause” not appellant seven-day clock of sub- starts unconditional, quix- warrant for us roving (A) though part receipt, on the even justice.” otically to “do We cannot ignore by mail from the district court not served express phrase, caveat of Rule 2’s final compliance in strict “except provided [Fed. otherwise 5(b). Any and such contention 26(b).” And, R.App.P.] though even emanate the court or notice must 26(b) authorizes us to “extend the time it party, or that must be served mail prescribed by “permit or to these Rules” 5(b), pursuant to Rule counter to runs prescribed an act to be after the time done 4(a) plain wording of and section expired,” rule expressly has this same for- plain general, counter to the word- (A) prescribed bids us to do so when the subpart ing teachings and the our expired time in question in Bass27 and cases from other time for opinion 26(b) particular. argument Indeed, circuits Counsel’s an NOA!29 states receipt of that his from the unequivocally “may not we extend the “proper clerk of the court was time to file:” notice,” implying or “formal notice” “(1) (except a notice autho- specifies sort of some formal ” 4).... in Rule rized widely the mark. requirements, misses It foundation in has no the words the Today’s ap- entire of oür self-examination applicable rules or case law. jurisdiction pellate turns on the extension 4(a). reopening provisions of Rule Finally, sug for Wilkens counsel And, together, Rules bring us gests, alternative, “pursuant in the 4(a), right precisely back to Rule we where [Fed.R.App.P.] [this should sus court] pend were when to consider requirements detoured Wilk- of Rule *7 (6) justice may justice ... so that be done.”28 alternative do ens’s invitation to judgment, days 27. Id. or 10 date after the on which granting the order the motion for extension is entered, undisput- whichever is later. As it is purports 28. Counsel for not to know Wilkens ed that no was filed within the + 30 motion proceeded the district whether period days, of 60 there could have been no (5) (6) 4(a) subsection or subsection of Rule granting order extend the motion to time for but, despite the fact that neither his motion filing appeal, only a notice of one nor court's order identifies the source So, despite the time. the absence of an iden- rule, we must assume that the court was order, tifying label in or the either the motion shown, reopening the time to we have file. As counsel for Wilkens to know has extending the time to under subsection “reopening” court's order was a under Rule long option had since a viable ceased to be 4(a)(6) anything it if were at all. time, by the on October Wilkens filed his motion for leave his NOA out to file of time, time, Advisory R.App. well as Fed. 29.See P. Committee Notes, ("This granted Adoption the court rule motion and Wilk- contains a 4(a)(5) only general ens filed his NOA. courts to Not does authorization to the relieve say nothing receipt litigants consequences about a of of default where (5)(C) entry judgment, specifies injustice subparl otherwise manifest would result. mandatory prohibits appeals may terms that no extension a court of from days extending taking appeal seeking prescribed 30-day exceed 30 after the time i.e., added). ”)(emphasis appeal, days time for after review. (mis)applying lawyer Rule 2. On this alternative Wilkens’s file a motion in the dis- entreaty, NOA, our are tied. trict hands court for leave to file a late 4(a)(6) which we as a construe mo-
III. reopen. tion to About one week after that, the granted district court CONCLUSION motion and counsel filed Wilkens’s late recap, To the district court’s place NOA. all This took well before denying habeas relief this ease was en- (A)’s expiration subpart 180-day period tered on June 1999. The clerk of the following entry judgment, but well after appears district court to have served no- (A)’s expiration' seven day by tice of the period following receipt of notice of entry, mail party, compli- to counsel for each the earlier of the times within which Wilk- 5(b).30 ance with ens had reopen. to file his motion to That neither Wilkens nor his counsel ever 4(a)(6) Subpart speaks of Rule notice, however, received this is not con- says of notice: It nothing at all tested. notice; about who must send the nothing Also uncontested is the fact that sent, at all about how the notice must be first notice of entry ever re- delivered, received; at all nothing about oral, ceived counsel for Wilkens was via physical qualities of the just notice— telephone, from staff counsel for the dis- plain, “receives unadulterated notice of the 7, 1999; trict court on September neither Here, entry.” a written is it contested that the oral notice was ment was sent the court via fax immediately by followed faxing the court’s (3) to counsel’s law office it where was judgment, of a or that the fax printed out his office machine and was received counsel for Wilkens at his there received hand counsel of day. law office later that Counsel never record. Yet Wilkens’s counsel filed no received notice of of judgment within motion to the time for days entry, after un- so extension NOA, pleading other for that mat- der Rule was unavailable to Wilk- ter, during ensuing period of seven ens. (A). by subpart allowed Thus the file, finally motion he did several weeks Additional undisputed facts demonstrate after receiving written notice via fax— that, though even Wilkens was entitled to and the that the signed order district court service of the judgment, notice of that, eight days entered another after and even though appears to have purporting grant that motion—were served, neither Wilkens nor his attor- any legal without effect whatsoever. ney received notice of any party from the court or Moreover, if, alternative, even in the entry. Wilkens thus cleared the first were inclined to rescue Wilkens’s other- *8 hurdle to entitlement to under by wise void 2 invoking NOA Rule “to 4(a)(6): (B)’s Subpart days provi- Rule 21 prevent injustice,” manifest we could not. impediment sion was not an filing to his a recognized by Advisory As the Committee reopening, motion for and he did in fact 26(b) Notes, expressly proscribes Rule us- file such a motion within the 180-day outer ing Rule to extend the time for filing limit for doing so. NOA.31
Not until almost a month after receiving Because Wilkens’s motion of October copy the fax of the judgment from the is an nullity, absolute the court’s or- 7, 1999, however, September court on reopen did der of 12 purporting to the 5(b)("Service by 30. See supra Fed.R.Civ.P. mail is 31. See n. 26. complete upon mailing”). 77(d). provides, in Rule nullity, an absolute turn Fed.R.Civ.P.
time for attorney upon party or upon “Service the a an ab- October NOA making Wilkens’s delivering shall be a by made to the timely Wilkens nullity. As never solute attorney party by mailing or it to the or juris- we appeal, of have no filed a notice attorney attorney’s at the party par- or complaint his that the dis- diction to hear or, last if no ty’s known address address is denying in relief. court erred habeas trict known, leaving it with the clerk of the APPEAL DISMISSED. 5(b)(in pertinent court.” Fed.R.Civ.P. part).
DENNIS, Judge, dissenting: *9 allowed, 2000), appeal except within the time as necessarily relied this court on an in 4(a) 4(a)(6) permitted in Rule of the Federal of Rule pari reading materia 77(d).1 Appellate Rule quote, Rules of Procedure. To See, Nunley City Appellate e.g., Angeles, er. Los Other courts have also read Rule ("[Rule 4(a)(6) 1995) 4(a)(6)] 77(d) togeth- and Civil Procedure Rule Cir. First, Appellate Rule party may Civil Under Rule a serve notice 77(d) pari Rule read in materia. must be only by by mail or 77(d) requires Rule the clerk to serve delivery. Delivery “handing means: it to the notice of of an order or the attorney party; or to the or leaving it “by ment mail.” Because a mailed no- attorney’s at the party’s office with a notice, necessarily tice is a written it is thereof; clerk person or other in charge logical to conclude that when reference- or, if there is no one in charge, leaving it in 77(d) later in to “lack made therein; or, conspicuous place if the of- entry,” relieving par- notice of the fice person is closed or the to be served ty “from failure to within the office, has no leaving person’s it at the except permitted time allowed as in Rule dwelling place house or usual of abode 4(a),” 77(d)(emphasis Fed.R.Civ.P. add- person with some age suitable and dis- ed), contemplates that reference lack of cretion then residing therein.” Fed. written notice. 5(b). R.Civ.P. Electronic transmission attorney’s notice to an fax num- 77(d) Thus, we must look to Rules ber does “delivery” not constitute 5(b) in order to determine what constitutes obviously definition. The fax was not 4(a)(6)(A). receipt of notice under Rule ... attorney,” “handled] to the nor was it The alternative method of service left “at attorney’s office with 77(d) contemplated by expressly a clerk or other in charge” because by limited to service of the Also, delivery. there was no hand delivery may provided who do so “in the manner method, was not accomplished by the third papers.” Rule 5 for the service of Fed. “leaving conspicuous place.” it in a 77(d). requires by R.Civ.P. Rule 5 service by mail or one of the enumerated methods 5(b) telling What is most about Rule Thus, delivery. pari the two rules in not what it says, but what it does not: provide materia that either the clerk must nowhere in Rule is there mention of serve notice of the of judgment any fax or other electronic transmissions. mail, or a must serve such notice However, (e), in section Rule 5 was specifi- by delivery prescribed either mail or cally amended to include filing fax. 5(b). by Rule Wright, MilleR, 16A See & (“A 5(e) Fed.R.Civ.P. may by local CoopeR, Federal And Practice Proceduee: filed, permit papers rule signed, to be (3d 1999) (“A § 3D 3950.6 ed. Jurisdiction verified electronic means that are con- winning party certainty who desires standards, sistent with technical if any, time is running and who cannot that the Judicial Conference of the United know whether other side has received establishes.”). States Advisory The Com- notice from the clerk can themselves serve mittee Notes for the 1991 amendment entry.”). notice of the state: “The revision also accommodates matter, development the instant Wilkens’s attor- of the use of facsimile ney was not served notice of the filing.” transmission for The
338 Cir.1996) (“Service 1424, integri- 85 F.3d 1429 proper maintenance and to assure 5(b)”). provide appropriate satisfy and to record does not ty Nota- Galiczynski, retrieval mechanisms.” See 44 access and also United States however, (b), (E.D.Pa.1999) (“The 707, bly, F.Supp.2d has never section 713 here, include electronic transmis- result that the Federal amended reached sions. Rules of do not authorize Civil Procedure fax, service with unani- is consistent opinion Salley v. The well-reasoned mous rendered that decisions courts Governors, Univ. North Car Board (citing, the issue.” inter considered Hill, 417, olina, Chapel 136 F.R.D. 420 alia, Sullivan, 3793, No. Switzer v. 95 C (M.D.N.C.1991), succinctly rejected the (N.D.Ill. 52911, 5, 1996); *1 Feb. 1996 WL that a plaintiffs arguments fax constituted Monterey Assocs. v. Mush Mushroom 5(b) else, personal delivery under Rule rooms, Inc., BAC, No. C-91-1092 1992 conspicuous it in delivery “leaving a (N.D.Cal. 21, 1992))); 442898, Aug. WL *4 as place.” Recognizing including fax Erbacci, Cerone, Moriarty, & Ltd. v. Unit 5(b) delivery specified a method of in Rule (S.D.N.Y. States, ed 166 F.R.D. 303 a collegial process left to “the better 1996) (attempting to serve motion to re committee,” the court an rules then set out 5(b)). consider violated facsimile Rule explanation of faxes should why excellent delivery not a method of under qualify as majority sup Cases cited not do 5(b). Rule 4(a)(6) port that Rule the contention personally a document is deliv- When 77(d). conjunction read in Rule Nun ered, person certify can verify and ley v. City Angeles, Los F.3d at complete copy that an intact and was concept did seem to embrace the of actual attorney’s left in the office. With a fax 7-day time triggering period transmission, person sending however, 4(a)(6), dicta; Rule the court’s only certify she document can that he or simply actual holding pre was to, did, attempted apparently and trans- sumption by mailing established electronically mit the document over could be rebuttable and overcome That telephone lines to the other office. non-receipt contradictory at evidence of person certify copy was cannot that the First hearing remand. The Circuit Also, in that in fact received office. River, City Fall Scott-Harris v. operate can since fax machines hours (1st Cir.1997), F.3d rev’d on 434-35 during holidays when the grounds, other 520 U.S. 117 S.Ct. closed, lawyer’s presents office is this (1997), L.Ed.2d 192 held that a problem determining ser- the time of by opposing demand letter written counsel Therefore, .... vice should faxed docu- 4(a)(6); however, trigger sufficed to Rule ments be deemed served from the time presumably this letter was mailed and Or, if trans- they transmission? are qualified under as service hours, regular mitted outside office 77(d). contemplated by Finally, only should service be to have deemed Co., Ryan Ins. v. First Unum Life office opened? occurred when the is next (2nd Cir.1999), the Second ques- For these reasons unresolved rejected Ryan’s contention that tions, finds the Court that fax transmis- “notice entry” con delivery sion are not a form of as that templates mail. Although 5(b). term in Rule is used Ryan’s problematic, rationale is its result at F.R.D. a reading is consistent with of Rules 4(a)(6), 5(b), Salley decision is in accord with ser authorize upon attorney by delivery fax is vice holding numerous other cases Ryan’s attorney Rule well as mail. received delivery insufficient form of 5(b). indi- Yesteryear, marked to Magnuson See Video *11 entry in-hand from the cate the date of CASTILLO; Lopez; than mail. Id. at Jose Raul Francisco
clerk of court rather Eloy Sanchez; Ashcraft; rejected Ryan’s E. 305. The Second Circuit Jon Alan Almaguer, Plaintiffs-Appel argument that such notice must have been Gustavo lees, sent at the mailed and must par-
prompting of the clerk the adverse Thus, ty. Ryan readily distinguish- Id. COUNTY, TEXAS, CAMERON case, present personal able from the as a Party Defendant-Third delivery party’s attorney markedly to a Plaintiff-Appellee, from a fax to an different transmission phone number. attorney’s fax Texas; George Bush, State of W. Gover Additionally, it although is not relevant Texas; Polunsky, nor of Allan B. case, analysis I my disagree of this Depart Member of the Board Texas majority’s characterization facts Justice; ment of Criminal Carole S. majority repeatedly em- this case. Young, Member of Board Texas phasizes that Wilkens’s counsel received Department Justice; of Criminal John “in-hand” the faxed Franz, David Member of the Board However, on the of its transmission. Department Texas of Criminal Jus record, as I read the there is no conclusive tice; Day, Patricia A. Member of the same-day, evidence of such in-hand re- Department Board Texas of Criminal ceipt. Wilkens’s counsel avers in his affi- Justice; Moody, William “Hank” “Toya davit McEwen of the Dis- Depart Member of the Board Texas trict office sent me containing Clerk’s a fax Justice; ment of Criminal Alfred C. Order, the Court’s Memorandum and Final Moran, Member of the Board Texas Judgment.” Department Justice; Nan Criminal (1) I Accordingly, conclude that Wilkens cy Patton, Member of the Board Tex did not receive Justice; Department of Criminal A. required by ment as Federal Rules of Civil Stringfellow, M. “Mac” Member of Procedure so as to trigger Department the Board Texas of Crim 4(a)(6)(A)’s 7-day period; Wilk- Justice; Vance, inal Carol S. Member ens’s motion for leave file late notice of Department of the Board Texas (construed as motion to Justice, Criminal Defendants-Third appeal) timely
the time to file an was Party Defendants-Appellants. 4(a)(6)(A)’s 180-day period; under Rule No. 99-41217. timely Wilkens’s notice of was filed 14-day within the window under Rule Appeals, United States Court of 4(a)(6); and, appellate jurisdic- we have Fifth Circuit. tion of this 5, 2001. Jan. Notes Advisory Committee to these compel two the conclusion that Rule rules case is in this whether The issue 4(a)(6) contemplates receipt of notice (“fax”) transmission facsimile 77(d) 5(b). as authorized Rules to the fax number of judgment the court’s 4(a)(6)(A) “provides oppor- Rule limited by the office at Wilkens’s counsel clerk’s tunity for in relief circumstances where attorney a staff constitutes the behest of order, entry the notice of of a entry notice of the receipt of required mailed the clerk to be of the required Federal Rule of Wilkens as 77(d) pursuant to Rule 4(a)(6)(A). I Appellate Procedure Because Procedure, Federal Rules of Civil is either receipt fax transmission believe that party not received or is so received receipt of “notice of the fails suffice opportunity late as impair to file a 4(a)(6)(A), entry” timely appeal.” Fed.RApp.P. notice I respectfully dissent. (1991 advisory committee notes Amend- ment). provision ... “This enables 4(a)(6)(A) requires that an Since winning party 180-day peri- to shorten the a motion to appellant file the time (and establishing od sending proof of file an after of) notice of its own or “within 7 the mov- judgment, as authorized ing party entry,” receives notice 77(d).” Fed.RApp.P. advisory must look to Federal of Civil Proce- (1991 Amendment) (em- committee notes provides as it rule that dure added). phasis Rule 77 was also the clerk to serve notice. Rule directs companion amended “a to the concur- 77(d) states: rent to Rule 4 of the amendment Federal Immediately upon an order Rules Appellate Procedure.” Fed. judgment the clerk shall a no- (1991 serve advisory R.Civ.P. 77 committee notes by mail Amendment). in the manner tice The amendment maintained upon in provided provision for Rule each the clerk shall serve judgment, in notice of ap- who is not default for failure to but prevailing make a also invited the to serve pear, and shall note in the dock- “certainty order to ensure Any mailing. party may et of the the time running.” for Most Id. addition serve such important, Advisory Committee Notes provided the manner Rule 5 for the state, appropriate procedure “An for such papers. Lack of service of notice of provided notice is in Rule 5.” Id. entry by the clerk does affect the appeal or time to relieve or authorize Moreover, in Bass v. United States the court to relieve a failure to Dep’t Agric., F.3d 959 Cir.
Notes
Notes manner authorized the 1996 fil- amendment likewise authorize 5(b). either Rule or Rule Because ing by fax or other electronic means. attempted the clerk expressed service fax rather Committee concern about devel- than opposing mail and the attorney oping did standards: “Judicial Conference notice, try not even to serve I adoption believe that of technical standards should valid service of notice prove superior specification these rules,” was not made. and “standards must be established conjunction is lo be read in party's attorney anof order mailed 77(d)."); States, "necessarily Benevento United No. 96 the clerk constitutes such notice JSR, CIV. 7311 (S.D.N.Y. party” contemplated by 2000 WL *1 to the 5, 2000) 4(a)(6)). July (finding