Khor Chin Lim v. Courtcall Inc. , 683 F.3d 378 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1265
K HOR C HIN L IM ,
Plaintiff-Appellant,
v.
C OURTCALL INC., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-C-748—Rudolph T. Randa, Judge.
S UBMITTED M AY 18, 2012—D ECIDED JUNE 19, 2012
Before EASTERBROOK, Chief Judge, and BAUER and
W ILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. The complaint in this suit
alleged that Courtcall, which gives notices to litigants;
fellow tenants in the apartment building where plaintiff
lives in Madison, Wisconsin; a local police officer; the
Dane County District Attorney’s Office; the Governor of
Wisconsin; and a former Prime Minister of Singapore;
all have conspired to ruin plaintiff’s life. The district
2 No. 12-1265
court dismissed this suit as fantastical. 2011 U.S. Dist.
L EXIS 135733 (E.D. Wis. Nov. 17, 2011). Observing that
plaintiff had recently bombarded the court with
frivolous suits, the judge invoked the court’s power to
protect itself and the defendants from abuse of process.
Plaintiff had 30 days to appeal but took almost 90. On
February 3, 2012, he filed a motion under Fed. R. App.
P. 4(a)(6), which provides:
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 satisfied:
(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.
28 U.S.C. §2107(c) contains similar language; for sim-
plicity we refer to the rule without cross-referencing
the statute. Plaintiff told the judge that he was out of
the country between November 17, 2011, and January 27,
2012, and, until he opened the mail following his return,
No. 12-1265 3
did not realize that the court had dismissed this case.
Without discussing what it means to “receive notice,” the
court reopened the time for appeal.
We ordered a limited remand so that the judge could
consider both the meaning of “receive notice” and whether
plaintiff’s factual representation was honest—for in
another case plaintiff asserted that he had not learned of
the very same judgment until February 16, 2012. We
observed that “one of these representations must be
false. Perhaps both are false.” Khor Chin Lim v. Courtcall
Inc., No. 12-1265 (7th Cir. Apr. 24, 2012) (nonprecedential
order). The inconsistency had led the district judge to
deny plaintiff’s motion under Rule 4(a)(6) in the other
case, which we dismissed. Khor Chin Lim v. Staples Inc.,
No. 12-1405 (7th Cir. Apr. 24, 2012) (nonprecedential
disposition). The fate of this appeal remained to be de-
cided.
On remand, the judge concluded that plaintiff was
truthful in asserting that he was out of the country until
January 27, 2012, and learned about the adverse judg-
ment only after his return. But the judge revoked his
order under Rule 4(a)(6), concluding not only that it
does not matter when a litigant opens his mail, but also
that it does not matter whether the litigant receives a copy
of the judgment at all. Here is the reasoning: (1) Rule
4(a)(6)(A) conditions reopening on a judicial finding
that the litigant “did not receive notice under Federal
Rule of Civil Procedure 77(d) of the entry of the judg-
ment or order sought to be appealed within 21 days
after entry”; (2) Rule 77(d)(1) provides that, immediately
4 No. 12-1265
after entering a judgment, the clerk “must serve notice
of the entry, as provided in Rule 5(b), on each party who
is not in default”; (3) Rule 5(b)(2)(C) in turn provides
that service by mail is complete on mailing. It follows,
the judge thought, that a litigant “receives” notice of
judgment as soon as the clerk mails it.
We directed the parties to file memoranda discussing
how we should proceed in light of the district
court’s order. Four groups of appellees filed separate
memoranda; all four contend that the district judge’s
most recent order is correct and that we should dismiss
the appeal. Plaintiff did not follow our instruction to
file a memorandum. But he did file a motion to recuse
all three judges of the panel. He contends that the orders
we entered in this case and in Staples show that we are
biased against him. This contention is frivolous. Adverse
decisions do not establish bias or even hint at bias. See
Liteky v. United States, 510 U.S. 540 (1994). Plaintiff’s
motion is denied.
Appellate Rule 4(a)(6) does not mesh perfectly with
Civil Rules 5(b) and 77(d). Rule 4(a)(6) talks of “receipt”
of a document under Rule 77(d); but Rules 77(d) and 5(b)
concern “service” rather than receipt. The committee
notes to Rule 4(a)(6) show that it is designed to allow a
district judge to reopen the time for appeal if notice of
the judgment does not arrive—whether the fault lies
with the clerk or the Postal Service. The district court’s
most recent decision would prevent the rule from
serving that function.
The committee note to the 2005 amendment, which
added the phrase on which the district judge relied,
No. 12-1265 5
shows that reference to “notice under Federal Rule of
Civil Procedure 77(d)” tells us what kind of notice
Rule 4(a)(6) is talking about: the notice that the district
clerk must give under Rule 77(d). Until 2005 notice
from another litigant (written or oral) could prevent a
litigant from obtaining extra time, even if the clerk never
sent notice (or the mail went awry). The new language
means that only notice under Rule 77 suffices. By
saying that service is complete on mailing, Rule 5(b)(2)(C)
tells us that the clerk’s task is accomplished when the
mail is turned over to the Postal Service; the clerk need
not obtain a return receipt. This rule for what it means
to “serve” a document does not tell us that service
equals receipt; otherwise Rule 4(a)(6)(A) would have
said “the court finds that the clerk did not serve notice
under Federal Rule of Civil Procedure 77(d) of the entry
of the judgment” rather than “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”.
Other courts of appeals share our view that a docu-
ment is not “received” under Rule 4(a)(6) until it arrives
at the litigant’s address. See, e.g., Williams v. Washington
Convention Center Authority, 481 F.3d 856 (D.C. Cir. 2007);
Poole v. Family Court of New Castle County, 368 F.3d 263 (3d
Cir. 2004). As far as we can tell, no court of appeals
has accepted the district court’s conclusion that a docu-
ment is “received” for the purpose of Rule 4(a)(6) the
instant it is “served” under Rules 5(b) and 77(d).
But our conclusion that a document is “received” when
delivered to the proper address does not assist plaintiff.
6 No. 12-1265
When he came home on January 27, the judgment was
waiting for him. It had been both served by the clerk
and delivered by the Postal Service. Plaintiff does not
offer any reason to doubt that it arrived within 21 days
of the judgment’s entry. Instead he contends that a docu-
ment is not “received” until the envelope is opened and
the contents read. He does not furnish any support for
that proposition (recall that he failed to comply
with our order to file a memorandum of law), and we
could not find any. Delivery to the address on file (the
litigant’s, or the litigant’s lawyer’s if the litigant is repre-
sented by counsel) is the normal meaning of receipt in
law. No authority of which we are aware holds that a
litigant may defer “receipt” of a document by failing to
open the envelope containing it. Quite the contrary, this
circuit recently rejected just such a contention. See Ho
v. Donovan, 569 F.3d 677 (7th Cir. 2009). Neither the text
of Rule 4(a)(6), nor anything in the committee notes,
suggests that “receive” has an unusual meaning.
Plaintiff could have asked the Postal Service, or a
friend, to forward his mail. He could have furnished
the district court with an address where mail would
reach him while he was abroad, or the name and
address of an agent who would receive mail on his
behalf and relay it to him. He could have checked the
district court’s electronic docket, which is available from
anywhere in the world. (Plaintiff told the district court
that it was by checking the electronic docket, known as
PACER, that he discovered the judgment in Staples.)
Each of these options would have protected his oppor-
tunity to appeal, but he chose none of them.
No. 12-1265 7
The time to appeal is limited by statute, see 28 U.S.C.
§2107, and this limit is jurisdictional. See Bowles v.
Russell, 551 U.S. 205 (2007). The judiciary is not entitled
to add time just because a litigant fails to open or read
his mail—or for any other extra-statutory reason. The
district court therefore properly revoked the earlier
order that had reopened the time for appeal, and this
appeal is dismissed for want of jurisdiction.
6-19-12