United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
September 28, 2018, this Court entered an Opinion and Order
(the “Order”) granting Defendant's motion for
summary judgment and dismissing all of pro se
Plaintiff's claims. (DE 193). A Judgment in a Civil
Action (the “Judgment”) in favor of Defendant was
entered that same day. (DE 194). Accordingly, any notice of
appeal of that Order and Judgment needed to be filed with the
district clerk on or before October 28, 2018. See
Fed. R. App. P. 4(a)(1)(A).
before the Court is a one-page document entitled
“Belated Appeal” filed by Plaintiff on February
1, 2019. (DE 195). In the document, Plaintiff states that he
never received a copy of the Order or the Judgment and that
he learned “from a person on the street” that his
case had been terminated. (DE 195 at 1). Plaintiff asks that
his case be reopened so that he can file an appeal of the
Order and the Judgment. Defendant has not filed a response to
Plaintiff's “Belated Appeal, ” and its time
to do so has now passed. See N.D. Ind. L.R.
Rule of Civil Procedure 77(d)(1) states, in relevant part:
“Immediately after entering an order or judgment, the
clerk must serve notice of the entry, as provided in Rule
5(b), on each party who is not in default for failing to
appear. The clerk must record the service on the
docket.” Here, the Clerk's docket entries for the
Order and the Judgment on September 28, 2018, lack an express
notation that Plaintiff was mailed a copy of these documents;
other prior Orders entered by the Clerk, however, have that
notation. (Compare DE 193 and DE 194,
with, e.g., DE 187 and DE 192).
This omission lends credence to Plaintiff's assertions
that he never received a copy of the Order or the Judgment.
The Court further notes that, for the most part, Plaintiff
has diligently prosecuted this case since its inception on
September 8, 2015.
a lack of notice does not automatically reopen the time for
filing an appeal. Rather, Rule 77(d)(2) states that
“[l]ack of notice of the entry does not affect the time
for appeal or relieve-or authorize the court to relieve-a
party for failing to appeal within the time allowed, except
as allowed by Federal Rule of Appellate Procedure
4(a).” Appellate Rule 4(a)(6), in turn, states:
The district court may reopen the time to file an appeal for
a period of 14 days after the date when its order to reopen
is entered, but only if all the following conditions are
(A) the court finds that the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment or order sought to be appealed within
21 days after entry;
(B) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party
receives notice under Federal Rule of Civil Procedure 77(d)
of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6).
the Clerk's docket entries dated September 28, 2018, lack
a notation that service of the Order and the Judgment were
made on Plaintiff. (DE 193; DE 194). Nor is there is any
evidence that Defendant served notice of the entry of the
Order and the Judgment on Plaintiff. See Fed. R.
Civ. P. 77(d)(1). As such, the Court finds that Plaintiff did
not receive notice for purposes of Federal Rule 77(d) within
21 days of entry of the Order and the Judgment, satisfying
subsection (A) of Appellate Rule 4(a)(6).
on to subsection (B) of Appellate Rule 4(a)(6), there is no
evidence that Plaintiff has been sent a copy of the Order and
the Judgment to date, and Plaintiff filed the motion within
180 days after the Order and Judgment were entered. Thus,
subsection (B) is also satisfied here. Finally, as to
subsection (C), Defendant declined to file a response to
Plaintiff's “Belated Appeal, ” and thus,
there is no showing of prejudice on this record. See,
e.g., Chapman v. Clark, No. 98 C 5495, 2002 WL
31045386, at *2 (N.D. Ill. Sept. 9, 2002) (“By
‘prejudice' the Committee means some adverse
consequence other than the cost of having to oppose the
appeal and encounter the risk of reversal, consequences that
are present in every appeal.” (quoting Fed. R. App. P.
4(a)(6)(C) advisory committee's note)).
on this record, the Court finds that notice of the Order and
the Judgment were not sent by the Clerk in accordance with
Rule 77(d), and that Plaintiff has satisfied the requirements
of Appellate Rule 4(a)(6). Accordingly, Plaintiff's
motion to reopen the time to appeal (DE 195) is GRANTED.
Plaintiff shall have 14 days from the date of this
Opinion and Order to file an appeal of the Order and the
Judgment with the district court. The Clerk is
DIRECTED to send a copy of this Opinion and Order, together
with a copy of the Order (DE 193) and a copy of the Judgment
(DE 194) dated September 28, 2018, to Plaintiff via certified
mail, recording such mailing on the docket. ...