Wilson v. Thompson , 138 F. App'x 556 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1999
ELLEN M. WILSON,
Plaintiff - Appellant,
versus
TOMMY G. THOMPSON, Secretary, United States
Department of Health and Human Services,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
03-234-CCB)
Submitted: March 11, 2005 Decided: July 11, 2005
Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alvin T. Prestwood, PRESTWOOD & ASSOCIATES, P.C., Montgomery,
Alabama, for Appellant. Allen F. Loucks, United States Attorney,
Neil R. White, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ellen M. Wilson appeals the district court’s order
denying her Fed. R. Civ. P. 60(b)(1) motion. The motion was filed
in a case decided by final order entered by the district court on
November 12, 2003, dismissing various claims relating to
allegations of employment discrimination. Wilson’s time to appeal
that order had expired, and her Rule 60(b)(1) motion sought to
reopen proceedings to allow Wilson to timely appeal the final
order. The district court denied Wilson’s Rule 60(b)(1) motion for
lack of mistake or excusable neglect.
Rule 60(b)(1) provides for relief from a judgment based
on mistake, surprise, inadvertence, or excusable neglect. The
extraordinary remedy of Rule 60(b) is only to be granted in
exceptional circumstances. See Compton v. Alton S.S. Co., 608 F.2d
96, 102 (4th Cir. 1979). To obtain relief under the Rule based on
excusable neglect, the movant “must demonstrate inter alia that
[she] was not at fault and that the nonmoving party will not be
prejudiced by the relief from judgment.” Home Port Rentals,
Inc. v. Ruben, 957 F.2d 126, 132 (4th Cir. 1992). We review the
denial of a Rule 60(b) motion for abuse of discretion. See Nat’l
Org. for Women v. Operation Rescue, 47 F.3d 667, 669 (4th Cir.
1995).
Wilson’s only basis for the Rule 60(b)(1) motion was that
Wilson’s counsel did not receive the November 12, 2003 order. The
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final order was sent electronically to counsel at the electronic
mail address submitted by counsel to the court when counsel
registered to receive court documents electronically.
Wilson’s claim of not receiving notice does not satisfy
Rule 60(b)(1). Rule 77(d), Fed. R. Civ. P., “‘plainly charges the
prospective appellant with the duty of following the progress of
the action and advising himself when the court makes the order he
wishes to protest.’” Hensley v. Chesapeake & O. Ry., 651 F.2d 226,
231 (4th Cir. 1981) (quoting Long v. Emery, 383 F.2d 392, 394 (10th
Cir. 1967)). Wilson’s counsel failed in this duty, and “Rule 77(d)
bars Rule 60(b) relief when the sole reason asserted for that
relief is the failure of a litigant to receive notice of the entry
of an order or judgment.” Id. at 229. Wilson failed to prove
mistake, inadvertence, surprise, or excusable neglect, and the
district court accordingly did not abuse its discretion in denying
Wilson’s Rule 60(b)(1) motion.
We affirm the district court’s order. We deny Wilson’s
motion to consolidate this case with In re Wilson, No. 04-1980 (4th
Cir. Sept. 23, 2004), in which a final order has been entered and
rehearing has been denied. We dispense with oral argument because
the facts and legal contentions are fully presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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