Alaska Employment Law

If your office staff receives notice of entry of judgment but you miss the 30- or 60-day deadline to appeal a District Court judgment, can your client get relief under either Appellate Rule 4 or Civil Rule 60(b)?  Judge Sedwick says, No.

The District Court granted the defendant’s unopposed motion to dismiss.  The Clerk then sent out electronic notice of entry of judgment, which the plaintiff’s attorney’s office acknowledged receiving.  The attorney, however, affied that he personally was unaware of the judgment until well after the expiration of the (here) 60-day appeal period.  Plaintiff moved for an additional 14 days to appeal under either Appellate Rule 4 or Civil Rule 60(b)(excusable neglect).

Sedwick has now held that Appellate Rule 4 is unavailable, because the plaintiff acknowledged he couldn’t satisfy the first prong of Rule 4(a)(6)(”the moving party did not receive notice . . . of the entry of the judgment . . . within 21 days after entry”).

Sedwick then  held that the plaintiff could not succeed under Civil Rule 60(b), because Appellate Rule 4 ousts Civil Rule 60(b) of any role with regard to missed appeal deadlines.  Sedwick, thus, found it unnecessary to reach the issue of excusable neglect.

This court reads [In re Stein, 197 F.3d 421 (9th Cir. 1999)] to say that Rule 4 now occupies the field with respect to extending the time for filing a notice of appeal.  Rule 60(b) is no longer available as an alternative.  That being so, it makes no difference that plaintiff filed his motion less than 180 days from the judgment[,] thereby meeting the requirement of Rule 4(a)(6)(B), because having received actual notice, plaintiff cannot meet the requirement of Rule 4(a)(6)(A).

Mitchell v. Geren, 2008 WL 1994943 (D.Alaska May 6, 2008)(Order and Opinion)

Joe Josephson represented the plaintiff.  Richard Pomeroy, Anchorage AUSA, represented defendant Army.