Nunley v. City of Los Angeles

• Citation: 52 F.3d 792
• Decision Date: 06 April 1995
• Docket Number: 93-56166,Nos. 93-56110,s. 93-56110
• Parties: Michelle La Nette NUNLEY, Plaintiff-Appellant, v. CITY OF LOS ANGELES, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 792

52 F.3d 792

31 Fed.R.Serv.3d 1029

Michelle La Nette NUNLEY, Plaintiff-Appellant, v. CITY OF LOS ANGELES, et al., Defendants-Appellees.

Nos. 93-56110, 93-56166.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1995.

Decided April 6, 1995.

Robert Mann and Donald W. Cook, Los Angeles, CA, for plaintiff-appellant.

James K. Hahn, City Atty., Thomas C. Hokinson, Sr. Asst. City Atty., and Katherine J. Hamilton, Deputy City Atty., Los Angeles, CA, for defendants-appellees.

Appeals from the United States District Court for the Central District of California.

Before: BEEZER and NOONAN, Circuit Judges, and EZRA, District Judge. ^*

DAVID ALAN EZRA, District Judge:

This appeal from a district judge's denial of an extension of time to file notice of appeal raises questions of first impression concerning the interpretation of Federal Rule of Appellate Procedure 4(a)(6). Rule 4(a)(6) provides for an extension of time upon a showing that the would-be appellant did not receive notice of the entry of judgment and that no other party would be prejudiced by the extension. We hold that a specific factual denial of receipt of notice rebuts the presumption of receipt, which is to be given no further weight. We also hold that Rule 4(a)(6) motions may not be denied based upon the concept of "excusable neglect." Therefore, we vacate the decision of the district judge and remand for a determination of receipt of notice.

I. Background

On February 19, 1993, the district court entered judgment against Michelle La Nette Nunley ("Nunley") after a jury returned a verdict in favor of the City of Los Angeles and individual defendants (collectively "City"). At trial, Nunley had claimed damages for injuries suffered as the result of an attack by a police dog. On March 5, 1993, Nunley timely served a motion for judgment notwithstanding the verdict or for new trial pursuant to Fed.R.Civ.P. 50(b), 59(e), and 60(b). ¹ On April 9, 1993, the district court entered an order denying Nunley's motion. The face of the entered order bears a stamp stating: "I certify that this document was served by first class mail, postage prepaid, to all counsel (or parties) at their respective, most recent, address of record, in this action, on this date." The date "4/9/93" and the signature of the deputy clerk appear in blanks below the stamp. Boxes at the bottom of the document labelled "Docketed," "Mld Copy Ptys," and "Mld Notice Ptys" are checked. Regarding the April 9, 1993 entry of the order, the civil docket continuation sheet bears the notation "mld cpys & notc."

Nunley's counsel had received the proposed order drafted by the City on April 2, 1993. Counsel appeared in court at least once prior to May 10, 1993, on April 26, 1993, in response to a motion to retax costs.

On May 10, 1993, Nunley's counsel went to the district court clerk's office and asked to view the docket. Having been told that the docket could not be found, counsel examined the file, which did not contain any indication that an order had been signed. A paralegal conducted a similarly unproductive search for Nunley on May 17, 1993. Finally, on May 20, 1993, the docket became available for inspection and Nunley's counsel observed the April 9, 1993 entry of the order denying her motion for judgment notwithstanding the verdict or for new trial. The file still did not contain the signed order. Opposing counsel had not independently served the judgment on Nunley as permitted by Fed.R.Civ.P. 77(d).

Nunley filed an ex parte application for extension of time to file an appeal on May 26, 1993, citing only Fed.R.App.P. 4(a)(5). ² On June 14, 1993, the district judge denied Nunley's application. On July 13, 1993, Nunley appealed the district judge's decision. Appeal no. 93-56110. On June 9, 1993, Nunley filed a motion for an extension of time to file an appeal under Fed.R.App.P. 4(a)(5) and (6). On July 22, 1993, the district judge denied this motion. On August 3, 1993, Nunley also appealed the district judge's July 22, 1993 decision. Appeal No. 93-56166. On September 8, 1993, we dismissed Nunley's appeal no. 93-56110 on the ground that it duplicated appeal no. 93-56166. ³

Nunley appeals the district judge's denial of her motions under Fed.R.App.P. 4(a)(5) and 4(a)(6) to enlarge time to file a notice of appeal. We vacate the decision of the district judge and remand for further proceedings.

II. Standard of Review

We review for abuse of discretion a district judge's denial of a motion brought under Fed.R.App.P. 4(a)(5) or (6) for an extension of time to file notice of appeal. National Indus., Inc. v. Republic Nat'l Life Ins. Co., 677 F.2d 1258, 1264 (9th Cir.1982) (Fed.R.App.P. 4(a)(5)).

III. Discussion

A. Federal Rule of Appellate Procedure 4(a)(6)

Nunley claims to have received actual notice of the district court's April 9, 1993 order on May 20, 1993. Because Nunley admits that she received actual notice on May 20, 1993, the district judge only had authority under Rule 4(a)(6) to consider Nunley's May 26, 1993 ex parte application, ⁴ which was filed within 7 days of actual notice, and not her June 9, 1993 motion citing Rule 4(a)(6), which was untimely under that rule. See Fed.R.App.P. 4(a)(6); Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir.1994) (per curiam) (district court has no authority to consider a motion which is not filed within Rule 4(a)(6)'s time constraints).

1. Ex Parte Application

Rule 4(a)(6) provides that a district judge may reopen time for appeal "upon motion" and upon a finding "that no party would be prejudiced." Rule 5(a), Fed.R.Civ.P., requires every written motion to be served, except a motion which may be heard ex parte. While Fed.R.App.P. 4(a)(5) expressly allows an ex parte motion to extend time to file a notice of appeal if the motion is filed within the 30-day time period allowed for filing the notice of appeal, Rule 4(a)(5) also states that notice of any motions for extensions of time filed after this period "shall be given to the other parties in accordance with local rules." The requirement in Rule 4(a)(6) of a motion, not an informal application, and the lack of provision for ex parte filing, weigh in favor of requiring noticed motions.

The potential prejudice to the other parties addressed by Rule 4(a)(6) also favors requiring notice. Rule 4(a)(6) mandates an inquiry into the prejudice to other parties caused by any extension of time. The Advisory Committee Note defines prejudice as "some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal ... for example, if the appellee had taken some action in reliance on the expiration of the normal time period...." A response from the appellee provides the most informed method for a district judge to assess the possible prejudice. For these reasons, we hold that notice in accordance with the local rules is required under Rule 4(a)(6), just as it is for motions to extend time filed outside the thirty-day period under Rule 4(a)(5).

However, a district judge has broad discretion to depart from local rules, including the service requirements, "where it makes sense to do so and substantial rights are not at stake." Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1353 (9th Cir.1994). Here, the City did not object to Nunley's filing of the ex parte application, and the district judge did not address the violation. Moreover, because Nunley's counsel did inform counsel for the City of the filing of the ex parte application and because the City did respond to the application, the ex parte nature of the application resulted in no prejudice to the City. For these reasons, we hold that under these circumstances the district judge would not have abused his discretion in departing from the service requirements of the local rules, and therefore Nunley's failure to file a noticed motion under Rule 4(a)(6) should not constitute an independent ground for barring her claim here.

2. Showing Necessary to Satisfy Rule 4(a)(6)

Rule 4(a)(6) provides "a limited opportunity" for relief under specific circumstances. See Fed.R.App.P. 4(a)(6), advisory committee's note. Where a party entitled to receive notice of the entry of judgment or an order has not received notice within twenty-one days of its entry, and where no party would be prejudiced, a district judge may order an extension of time to file a notice of appeal. Fed.R.App.P. 4(a)(6). Rule 4(a)(6) was adopted to reduce the risk that the right to appeal will be lost through a failure to receive notice. It is to be read in conjunction with Fed.R.Civ.P. 77(d). Rule 77(d) allows, and the advisory committee note to Rule 4(a)(6) encourages, prevailing parties "to send their own notice [of the entry of final judgment to the opposition] in order to lessen the chance that a [district] judge will accept a claim of non-receipt in the face of evidence that notices were sent by both the clerk and the winning party." Fed.R.App.P. 4(a)(6) advisory committee's note. The City concedes this was not done here.

While Rule 4(a)(6) puts the burden on the moving party to demonstrate non-receipt, the rule does not mandate a strong presumption of receipt. This is clear from its purpose, which is to provide relief from the risk of non-receipt, and from its relationship to Rule 77(d), whereby a prevailing party can ensure receipt. This conclusion also springs from the language of the comment, which refers to a judge "accept[ing] a claim of non-receipt in the face of evidence that notices were sent by both the clerk and the winning party," and from the protection given by the rule to prejudiced parties. Fed.R.App.P. 4(a)(6) advisory committee's note.

Non-receipt is difficult to prove conclusively. All that a party seeking to demonstrate non-receipt can normally do is to submit affidavits regarding the usual practice of opening mail and actions consistent with non-receipt and an intent to file an...