Cote v. Chase

• Court: District Court, D. New Hampshire
• Decided: January 26, 1996
• Docket: CV-90-152-M
• Status: Published

Opinion

Cote v . Chase CV-90-152-M 01/26/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alfred Cote, Plaintiff, v. Civil N o . 90-152-M

Gail Chase, Defendant. O R D E R

Introduction

Having reviewed the court's record in this case, and having

reconsidered plaintiff's motion for leave to file late appeal

(document n o . 111) in light of the affidavits filed by plaintiff

and Assistant Attorneys General Stephen J. Judge and Wynn E .

Arnold, as well as the pleadings filed, the court finds and rules

as follows.

By order dated May 9, 1994, the court granted summary

judgment in favor of the remaining defendant, Gail Chase. A copy

of that order was mailed on May 1 3 , 1994, to plaintiff at the

address provided by him. The court then entered judgment against

plaintiff and in favor of defendants Rockingham County, Brian

Graf, and Gail Chase on May 1 6 , 1994. A copy of that judgment was mailed to plaintiff on May 1 6 , 1994, again, at the address he provided to the court.1

Plaintiff nevertheless swears under oath that he did not

receive either a copy of the order on defendant Chase's motion

for summary judgment, or a copy of the subsequent judgment. See

Affidavit of Alfred Cote (document n o . 1 1 8 ) . Plaintiff

attributes this alleged failure to receive either document to

"some act or error of the clerk or postal service" and, as a

result, says he was precluded from filing a timely appeal. See

Motion for Leave to File Late Appeal (document n o . 1 1 1 ) . Neither

the order on defendant Chase's motion for summary judgment, nor

the copy of the judgment was returned to the court as undelivered

or undeliverable. (The court does not normally send notices,

orders, judgments, or other papers by certified mail, due to the

substantial cost of such a practice.)

1 The deputy clerk's initials ("jab" for Judy A . Barrett) and a check mark evidence that the court's May 9th order and the judgment thereon were sent to plaintiff and others named after "cc:" on the dates specified, in accordance with the clerk's regular business practices. The plaintiff has been party to some ten cases in this court (docket nos. C-87-378-L; C-89-526-S; C-90-150-M; C-90-151- D; C-92-157-JD; C-92-381-M; C-92-642; C-93-35-M; C-93-348-L; and C-95-31-JD) and in all but the earliest of those cases (C-87-378- L ) he has given his address as P.O. Box 3 2 4 , Nauvoo, IL 62354.

2 Thus, the record is in the following posture: plaintiff

apparently received other papers sent to him at the address he

gave, but swears he did not receive either a copy of the court's

order granting summary judgment in favor of defendant Chase, or a

copy of the subsequently entered judgment in this case. He

thereby raises a threshold question of fact that may or may not

have to be resolved. If it must be resolved, a full evidentiary

hearing will be required, because plaintiff's sworn statement

denying receipt of the judgment when first mailed to him is

itself sufficient to negate the usual presumption of receipt

arising from the document's having been placed in the regular

mail, properly addressed. See e.g., Nunley v . City of Los

Angeles, 52 F.3d 7 9 2 , 793 (9th Cir. 1995) (specific factual

denial of receipt of notice rebuts the presumption of receipt,

which is to be given no further weight).

Putting that initial factual issue aside for the moment,

however, and accepting for the sake of argument that plaintiff

did not receive a copy of the judgment shortly after it was

entered, different issues present themselves.

Background

3 In August of 1994, plaintiff filed a motion for leave to

file late appeal based on his failure to receive notice of the

entry of judgment in this case. That motion was denied by this

court on August 2 9 , 1994, on grounds that the court's file

indicated that a copy of the judgment was properly mailed to

plaintiff on the date shown. Plaintiff appealed that ruling to

the Court of Appeals for the First Circuit, which initially

dismissed his appeal, but later reversed itself, vacated that

dismissal, reinstated the appeal, and remanded the case to this

court for a determination as to whether plaintiff should be

afforded relief under Fed. R. App. P. 4(a)(6) (in the form of an

extended period of time in which to file an appeal). The Court

of Appeals also directed plaintiff to "state in more detail [on

remand] when and how he learned of the entry of the May 1 6 , 1994,

judgment and the date, if any, he received `notice from the clerk

or any party.'" (emphasis added).

Plaintiff filed an affidavit in an effort to "state in more

detail" when he received a copy of the judgment from the clerk.

But his affidavit is not adequate to establish plaintiff's

eligibility for, much less his entitlement to relief under Fed.

R. App. P. 4(a)(6).

4 Defendants responded to plaintiff's affidavit through their

respective counsel, taking issue with plaintiff's claims and

advancing sworn assertions of their own. Unfortunately,

defendants' assertions, like those of plaintiff, are not

precisely on point nor are they dispositive. Accordingly, the

court has invested considerable time in analyzing the affidavits

and documents on file in an effort to determine whether the

matter can properly be resolved on the current record. Having

done s o , the court finds that even construing the undisputed

facts in the most favorable light possible in support of

plaintiff's position, his motion must be denied as a matter of

law.

Discussion

An analysis of whether plaintiff is entitled to the relief

he seeks begins with Fed. R. App. P. 4(a)(6), which provides as

follows:

The district court, if it finds (a) that a party entitled to notice of the entry of 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 the entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for

5 appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

In his affidavit, plaintiff claims that he never received a copy

of the judgment originally mailed to him on May 1 6 , 1994 (and

thus not within 21 days of its entry). He says he "had no knowledge of final judgment until I read about it in a decision

of the [F]irst [C]ircuit [in] Cote v . Vetter, in which I do not

know the date." He goes on to state, "I read the 1st circuit

decision [in Cote v . Vetter] on a Thursday night and called the

clerk of the district court on Friday and she mailed them [the

order and judgment] to m e , and I received them the following

Wed[ne]sday." Plaintiff's Affidavit, ¶4 (emphasis added) (As

discussed more fully below, plaintiff's sworn statement that he

received a copy of the judgment on a Wednesday is a critical

point relative to establishing the date on which he received

written notice that judgment had been entered). Finally,

plaintiff says, "I filed my motion [to extend time to file a late

appeal] (mailed it) on about the 10th day after receiving the

copy of the judgment. I do not know what the exact dates were

but this is the best I remember." Plaintiff's Affidavit, ¶ 6 .

In their response, defendants focus on plaintiff's statement

that he mailed his motion for late appeal "on about the 10th day

6 after receiving the copy of the judgment," and argue that since

he admittedly did not file his motion within the seven day period

allowed by Rule 4(a)(6) his motion was untimely and must be

denied. See Vahan v . Shalala, 30 F.3d 1 0 2 , 103 (9th Cir. 1994).

They also generally contest plaintiff's credibility as to whether

he received a copy of the judgment initially, i.e. within 21 days

of its entry. Defendant Graf seems to argue (without citation to

any authority) that the phrases "notice from the clerk" and "such

notice" as used in Rule 4(a)(6) refer to oral as well as written

notice, and suggests that Cote's Thursday reading of the First

Circuit's opinion in Vetter referencing the entry of judgment in

this case, and the Friday telephone call to the clerk of this

court, both qualified as notice under Rule 4(a)(6). Receipt of

written notice, however, appears to be required. Avolio v .

County of Suffolk, 29 F.3d 5 0 , 53 (2d Cir. 1994).

Nevertheless, starting with plaintiff's own assertions, he

unquestionably received written notice of the entry of judgment

prior to August 1 0 , 1994, because his motion for leave to file

late appeal is dated August 1 0 , 1994, 2 and he unequivocally

states that he mailed the motion "about the 10th day after

2 The notary's attestation on plaintiff's affidavit attached to the motion is dated the next day, August 1 1 , 1994. 7 receiving" written notice from the clerk. The envelope in which

the motion was mailed to this court is postmarked August 1 2 ,

1994. The clerk received the motion (as evidenced by date stamp)

on Tuesday, August 1 6 , 1994, which would seem consistent with an

August 12 mailing (i.e., four elapsed days).

Plaintiff is also unequivocal in stating that he received a

copy of the judgment on a "Wednesday" (Plaintiff's Affidavit, ¶

4 ) , following a call to "the clerk of the district court on [the previous] Friday."3 Id.

3 One clue from which the actual date of receipt - the "Wednesday" - might be determined is plaintiff's statement that he first learned about the judgment when he read the decision of the Court of Appeals in another of his cases, Cote v . Vetter, 30 F.3d 126 (1st Cir. 1994) (unpublished), which referenced the judgment in this case. Plaintiff says he read that opinion on a "Thursday." The First Circuit issued its opinion in Cote v . Vetter on Thursday, July 7 , 1994 (Westlaw carries the date as July 8 , 1994, a discrepancy that may be explained by the Circuit's subsequent issuance of an errata sheet). This court's docket in Cote v . Vetter reveals that the appellate opinion was received here on July 1 1 , 1994 (a Monday), and was docketed on July 1 2 , 1994, all of which is consistent with an inference that the Court of Appeals mailed the opinion on or about July 7 , its date of issue. The Court of Appeals presumably mails copies of its opinions to the lower courts and affected parties simultaneously, as a regular business practice. In any event, plaintiff could not have read the opinion prior to its date of issue and, given his affidavit, did not read it for the first time on Thursday August 11 (the date his affidavit supporting his motion for late filing was notarized).

8 Plaintiff's motion was timely under Fed. R. App. P. 4(a)(6)

only if the Wednesday on which he received written notice of the

judgment was August 1 0 , 1994. Plaintiff had seven days from

receipt of written notice to file his motion. Counting seven

days from August 10 results in a filing deadline of August 17, 4

and the motion was filed on August 1 6 .

However, he could not have received the written notice on

August 1 0 , because that was the date on which he signed his

motion for leave to file a late appeal, and he emphatically

states that "after repeated calls to [attorney] Judge [seeking

his concurrence to my motion] for about 8 days, I filed my motion

(mailed it) on about the 10th day after receiving the copy of the

judgment." Plaintiff's Affidavit, ¶6 (emphasis added). As noted

above, plaintiff's motion was postmarked August 1 2 , 1994, only

two days after Wednesday, August 1 0 , 1994. Accordingly, based

upon plaintiff's sworn affidavit, he did not receive the copy of

the judgment on Wednesday, August 1 0 , 1994. The next latest

4 Fed. R. App. P. 26(a) provides: "When the period of time prescribed or allowed [by these rules or by any applicable statute] is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation." (emphasis added) Compare Fed. R. Civ. P. 6(a) which provides that when the period of time prescribed or allowed is "less than 11 days" intermediate weekends and holidays shall be excluded in the computation.

9 Wednesday on which plaintiff could have possibly received written

notice of the judgment was August 3 , 1994, which necessarily

means his motion was untimely, since seven days later, on August

1 0 , 1994, the filing deadline would have expired and the motion

was not filed until August 1 6 .

Therefore, taking plaintiff's affidavit as true, he

necessarily received written notice of the judgment from the

clerk, at the latest, on Wednesday, August 3 , 1994, or "about 10

days" before he mailed his motion for leave to file a late appeal

on August 1 2 , 1994. His motion under Fed. R. App. P. 4(a)(6) was

therefore untimely when filed on August 1 6 , 1994.

Plaintiff does not claim to have been confined in a penal

institution when he mailed his motion. Accordingly, he is not

entitled to the benefit of the so-called "prisoner mail rule."5

His motion was filed when the clerk received it on August 1 6 ,

thirteen days after the latest possible date on which he could

have (consistently with his affidavit) received written notice of

the judgment. See e.g. McIntosh v . Antonino, 71 F.3d 2 9 , 35 (1st

5 Fed. R. App. P. 4(c) provides that a notice of appeal is timely filed by a prisoner if deposited in the institution's internal mail system on or before the last day for filing. See Houston v . Lack, 487 U.S. 266, 275, 108 S.Ct. 2379, 2384, 101 L.Ed.2d 245 (1988); Oliver v . Commissioner, 30 F.3d 2 7 0 , 272 (1st Cir. 1994); Reid v . State of N.H., 56 F.3d 3 3 2 , 340 n.16 (1st Cir. 1995).

10 Cir. 1995) ("filing" a pleading or document with a district court

"means delivery into the actual custody of the proper officer")

(quoting Casalduc v . Diaz, 117 F.2d 915, 916 (1st Cir.) cert.

denied, 314 U.S. 639 (1941)); see also Fed. R. Civ. P. 77(a).

The foregoing analysis ends the matter, since failure to

file a timely motion under Fed. R. App. P. 4(a)(6) or 28 U.S.C.

2107(c) is jurisdictional, even as applied to pro se litigants.

Martinez v . Hoke, 38 F.3d 655, 656 (2nd Cir. 1994) ("[E]ven where

a party did not receive notice of entry of the judgment within 21

days of entry, the district court lacks jurisdiction under Rule

4(a)(6) to reopen the time for appeal if the motion for such a

reopening is made more than seven days after the movant received

notice of entry [of the judgment]."); Marcangelo v . Boardwalk

Regency, 47 F.3d 8 8 , 91 (3rd Cir. 1995) ("The time limits

provided by Fed. R. App. P. 4(a)(6) and 28 U.S.C. § 2107 are

mandatory and jurisdictional, and the courts are required to

dismiss untimely appeals sua sponte." (citations omitted)).

Therefore, plaintiff's motion for leave to file late appeal

(document n o . 1 1 1 ) , having been fully reconsidered, is hereby

again denied as untimely, for the reasons discussed herein.

Judgment shall be entered accordingly.

11 SO ORDERED.

Steven J. McAuliffe United States District Judge January 2 6 , 1996 cc: Alfred F. Cote Stephen J. Judge, Esq. Carleton Eldredge, Esq.