Two-Way Media LLC v. AT & T, Inc. ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
TWO-WAY MEDIA LLC,
Plaintiff-Appellee
v.
AT&T, INC., AT&T CORP.,
Defendants
AT&T OPERATIONS, INC., AT&T SERVICES, INC.,
SBC INTERNET SERVICES, INC.,
SOUTHWESTERN BELL TELEPHONE COMPANY,
Defendants-Appellants
______________________
2014-1302
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 5:09-cv-00476-OLG,
Judge Orlando L. Garcia.
______________________
Decided: March 19, 2015
______________________
LESLIE V. PAYNE, Heim, Payne & Chorush, LLP, Hou-
ston, TX, argued for plaintiff-appellee. Also represented
by MICHAEL F. HEIM, MICAH JOHN HOWE, NATHAN J.
DAVIS; MAX LALON TRIBBLE, JR., Susman Godfrey L.L.P.,
Houston, TX, RACHEL S. BLACK, IAN B. CROSBY, PARKER
C. FOLSE, III, Seattle, WA.
2 TWO-WAY MEDIA LLC v. AT&T, INC.
CARTER GLASGOW PHILLIPS, Sidley Austin LLP, Wash-
ington, DC, argued for defendants-appellants. Also
represented by CONSTANTINE L. TRELA, JR., RICHARD ALAN
CEDEROTH, ROBERT N. HOCHMAN, NATHANIEL C. LOVE,
Chicago, IL.
______________________
Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Dissenting opinion filed by Circuit Judge DYK.
O’MALLEY, Circuit Judge.
Two-Way Media LLC (“TWM”) brought this patent in-
fringement suit against AT&T, Inc.; AT&T Corp.; AT&T
Operations, Inc.; AT&T Services, Inc.; SBC Internet
Services, Inc.; and Southwestern Bell Telephone Co.
(collectively, “AT&T”). The case proceeded to a jury trial
in the United States District Court for the Western Dis-
trict of Texas, where the jury found that AT&T infringed
the asserted claims of the patents at issue and awarded
damages. The district court entered final judgment
consistent with the jury’s verdict on October 7, 2013. The
district court thereafter denied all of AT&T’s post-trial
motions for judgment as a matter of law (“JMOL”). Upon
docketing those rulings, the time for AT&T to file an
appeal began to run. AT&T, however, failed to file a
timely notice of appeal. Because we conclude that the
district court did not abuse its discretion or clearly err in
refusing to extend or reopen the appeal period, we affirm.
I. BACKGROUND
TWM filed suit in the United States District Court for
the Southern District of Texas on April 11, 2008, alleging,
inter alia, infringement of certain claims of U.S. Patent
Nos. 5,778,187 and 5,983,005. In June 2009, the South-
ern District of Texas transferred the case to the United
TWO-WAY MEDIA LLC v. AT&T, INC. 3
States District Court for the Western District of Texas.
The case proceeded to a jury trial, resulting in a verdict of
infringement and a damages award to TWM. Final
judgment reflecting the jury’s verdict was entered on
October 7, 2013.
On October 4, 2013, AT&T timely filed four motions
for renewed JMOL or a new trial, regarding non-
infringement, invalidity, and damages. These filings
stayed the running of the time within which AT&T was
required to file any notice of appeal from the final judg-
ment. Because three of the four JMOL motions were
confidential, AT&T moved to file those under seal. On
November 22, 2013, the court denied all of AT&T’s JMOL
motions and granted TWM’s request for costs, entering
judgment against AT&T on all pending claims. When the
court initially docketed the denials of AT&T’s motions, it
labeled the three orders addressing the confidential
motions as orders granting the motions to seal, not indi-
cating that the same orders denied the relief sought in the
underlying motions. The parties (through counsel) re-
ceived notice of electronic filings (“NEFs”) for each of
those orders labeled “ORDER GRANTING [] Motion For
Leave to File Sealed Document.” Joint Appendix (“J.A.”)
13804. The underlying orders, which could be accessed by
clicking on the hyperlink in the NEFs, clearly denied the
merits of AT&T’s JMOL motions, however. At the same
time, the court docketed its order denying the fourth, non-
confidential JMOL. And, the court docketed its order on
TWM’s Bill of Costs. Both of these were included and
properly identified in the November 22 NEFs to the
parties. On November 25, the court updated the descrip-
tion of the orders on the docket, but did not send new
NEFs to the parties.
On January 15, 2014, after the appeal period had ex-
pired, AT&T asserts that it first discovered that the
November orders actually denied all of its post-trial
motions. The next day, AT&T filed a motion to extend or
4 TWO-WAY MEDIA LLC v. AT&T, INC.
reopen the appeal period pursuant to Federal Rules of
Appellate Procedure 4(a)(5) and (6). On February 6, 2014,
the district court denied AT&T’s motion.
A denial of a motion under Rule 4(a) is a final appeal-
able order. See 28 U.S.C. § 1291; see also Eltayib v.
United States, 294 F.3d 397, 399 (2d Cir. 2002). Because
this is a patent infringement case, we have jurisdiction
under 28 U.S.C. § 1295(a)(1).
II. DISCUSSION
Since a ruling on a motion for relief under Rule 4(a) is
an issue not unique to patent law, we apply the law of the
regional circuit—here, the Fifth Circuit. See Amgen Inc.
v. Hoechst Marion Roussel, Inc., 25 F. App’x 923, 924
(Fed. Cir. 2001). 1 Under Fifth Circuit law, we review the
district court’s ruling on a motion for relief under Rule
4(a)(5) and (6) for abuse of discretion. Stotter v. Univ. of
Tex., 508 F.3d 812, 820 (5th Cir. 2007) (reviewing a mo-
tion for relief under Rule 4(a)(5) for abuse of discretion);
In re Jones, 970 F.2d 36, 39 (5th Cir. 1992) (reviewing a
motion for relief under Rule 4(a)(6) for abuse of discre-
tion).
Rule 4(a) states in relevant part:
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a
notice of appeal if:
1 Although the dissent argues that we apply our
own law when determining our jurisdiction, there is no
dispute over our jurisdiction in this case. We have juris-
diction to review the district court’s denial of AT&T’s Rule
4(a) motion. Indeed, the dissent does not discuss this
court’s jurisdiction, and instead addresses the merits of
AT&T’s motion.
TWO-WAY MEDIA LLC v. AT&T, INC. 5
(i) a party so moves no later than 30 days after the
time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before
or during the 30 days after the time prescribed by
this Rule 4(a) expires, that party shows excusable
neglect or good cause.
....
(6) Reopening the Time to File an Appeal. The
district court may reopen the time to file an ap-
peal for a period of 14 days after the date when its
order to reopen is entered, but only if all the fol-
lowing conditions are satisfied:
(A) the court finds that the moving party did not
receive notice under Federal Rule of Civil Proce-
dure 77(d) of the entry of 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 af-
ter the moving party receives notice under Feder-
al Rule of Civil Procedure 77(d) of the entry,
whichever is earlier; and
(C) the court finds that no party would be preju-
diced.
Fed. R. App. P. 4(a).
In sum, to qualify for an extension of the appeal peri-
od, the moving party must show “excusable neglect or
good cause.” Fed. R. App. P. 4(a)(5). A court may reopen
the appeal period, on the other hand, if, inter alia, “the
court finds that the moving part did not receive notice” of
the entry of the judgment or order at issue. Fed. R. App.
P. 4(a)(6) (emphasis added). Both decisions are commit-
ted to the trial court’s discretion. The question, accord-
ingly, is not whether any panel member—or even all of
them—would have granted AT&T’s motion under either
6 TWO-WAY MEDIA LLC v. AT&T, INC.
Rule 4(a)(5) or (6) if acting as district court judges, but
whether, under the circumstances, this district court
abused its discretion when it chose not to do so.
a. Extension of the Appeal Period Pursuant to
Rule 4(a)(5)
In considering AT&T’s motion under Rule 4(a)(5), the
court found that the AT&T had failed to show good cause
or excusable neglect. Although the NEFs communicated
an arguably incomplete description of the orders, the
district court noted that even a total lack of notice would
not be enough, standing alone, to justify extending the
time for filing an appeal. The court concluded that it is
the responsibility of every attorney to read the substance
of each order received from the court and that it is not
sufficient to rely on the email notifications received from
the electronic filing system. The court explained that the
NEFs were sent to 18 attorneys at the two firms repre-
senting AT&T. The court further noted that assistants at
those firms actually downloaded copies of all of the orders
onto the firms’ internal systems. Finally, the court point-
ed to the fact that, on that same day, the court also issued
orders denying the unsealed JMOL motion and entering a
bill of costs—both of which produced accurately labeled
NEFs. The district court therefore refused to extend the
appeal period under Rule 4(a)(5).
AT&T argues that its delay should be excused because
it received incomplete NEFs and the district court did not
reissue new NEFs when it corrected the docket entries.
In other words, AT&T argues that, because the initial
NEF did not fully describe what the order entailed, the
court should have found that the “excusable neglect or
good cause” required under Rule 4(a)(5)(A)(ii) had been
established. We disagree.
As the district court correctly noted, even a complete
lack of notice would not qualify as excusable neglect
under Rule 4(a)(5), without some additional showing. To
TWO-WAY MEDIA LLC v. AT&T, INC. 7
allow Rule 4(a)(5) to be triggered so easily would render
Federal Rule of Civil Procedure 77(d)(2) a nullity.
Rule 77(d)(2) expressly provides 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).” (emphasis added).
Because AT&T would not be entitled to relief even if it
had received no NEFs notifying it of the court’s order, the
district court was correct to require some additional
evidence of excusable neglect or good cause. See Wilson v.
Atwood Grp., 725 F.2d 255, 257 (5th Cir. 1984) (en banc)
(“The rule is strict, but its meaning and purpose are plain.
We have consistently held that the simple failure of the
clerk to mail notice of entry of judgment, without more,
does not permit relief to a party who has failed to appeal
within the prescribed time.”); see also Avolio v. Cnty. of
Suffolk, 29 F.3d 50, 52 (2d Cir. 1994) (“Plaintiffs could not
qualify for this kind of extension [under Rule 4(a)(5)]
because the mere failure to discover that the judgment
had been entered, even when the clerk had failed to mail
a notice of judgment as directed by Fed. R. Civ. P. 77(d),
does not constitute excusable neglect.”); Case v. BASF
Wyandotte, 737 F.2d 1034, 1035 (Fed. Cir. 1984) (“The
fact that the appellant did not receive the opinion and
order upon issuance did not excuse his failure to file a
timely notice of appeal.”); Rodgers v. Watt, 722 F.2d 456,
458 (9th Cir. 1983) (“Generally a finding of excusable
neglect requires lack of notice plus additional equitable
factors such as attempts to learn the anticipated date of
the decision.”).
AT&T first responds by arguing that this is not just a
lack of notice case; it is a case involving an affirmatively
misleading notice. And, it argues that, because the dis-
trict court’s NEFs violated Federal Rule of Civil Proce-
dure 79, the notice it received violated the legal
requirements governing the same. Turning to AT&T’s
8 TWO-WAY MEDIA LLC v. AT&T, INC.
second argument first, AT&T is wrong when it contends
that the court or its clerk violated Rule 79. Rule 79
applies to the civil docket, not to electronic email notices.
See Fed. R. Civ. P. 79(a)(1)–(3). Rule 79 provides that
each docket entry is to briefly state “the substance and
date of entry of each order and judgment.” Although the
court did not send updated NEFs, the district court
promptly corrected the docket entries to state that the
orders denied the underlying JMOL motions. The civil
docket, therefore, had a complete description of those
orders had AT&T bothered to check the docket, as it
should have done. Latham v. Wells Fargo Bank, N.A., 987
F.2d 1199, 1201 (5th Cir. 1993) (“Rule 77(d) clearly states
that a party must make a timely appeal whether or not he
receives notice of the entry of an order. Implicit in this
rule is the notion that parties have a duty to inquire
periodically into the status of their litigation.”); In re
Morrow, 502 F.2d 520, 522 (5th Cir. 1974) (“Notification
by the clerk is merely for the convenience of the liti-
gants.”). AT&T’s resort to Rule 79 is, thus, unhelpful to
its appeal under Rule 4(a)(5).
AT&T’s claim that its failure to read the court’s order
was excusable because it was misled into doing so by the
court itself does not fare much better on these facts. We
recognize that excusable neglect “is not limited strictly to
omissions caused by circumstances beyond the control of
the movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd., 507 U.S. 380, 392 (1993). It is true, moreover, that a
court’s own conduct—including misleading entries or
statements to counsel—is relevant to whether neglect not
predicated only on a failure to receive notice of an entry of
judgment can, or should, be deemed excusable. See
Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir.
1979) (affirming trial court’s finding of excusable neglect
because an extension of time was not “unwarranted”
when counsel was misled by good faith reliance on state-
ments by the district court, some of which occurred after
TWO-WAY MEDIA LLC v. AT&T, INC. 9
counsel sought clarification of the court’s orders). The
fact that the incomplete NEFs are relevant to the court’s
inquiry does not mean they are determinative of it, how-
ever.
The district court not only may, but should, consider
“‘all relevant circumstances’” in determining whether a
party’s failure to file a timely appeal was excusable. See
Stotter v. Univ. of Tex., 508 F.3d 812, 820 (5th Cir. 2007)
(quoting Pioneer Inv., 507 U.S. at 395). At bottom, Rule
4(a)(5) assumes some neglect on behalf of the non-filer
and directs the district court to exercise its equitable
discretion to determine whether that neglect should be
excused. The trial court examined the circumstances
surrounding the admitted neglect by AT&T’s counsel and
concluded it should not be forgiven. The trial court found
that it was not excusable for AT&T’s attorneys to rely on
the email notifications and neglect to read the orders in
light of the circumstances surrounding the November 22,
2013 NEFs. As the trial court noted, AT&T received an
order denying its unsealed JMOL motion and an order
assigning costs—both of which triggered properly labeled
NEFs—at the same time it received the allegedly mislead-
ing NEFs. Pointedly, costs are only to be awarded to a
prevailing party. See Fed. R. Civ. P. 54(d)(1) (“[C]osts—
other than attorney’s fees—should be allowed to the
prevailing party.” (emphasis added)). An order assessing
costs was a clear indication that all matters relevant to
the question of whether TWM was a prevailing party had
been resolved. The district court noted, moreover, that
the orders and NEFs had been sent to 18 different counsel
and legal assistants representing AT&T and that at least
some of those recipients downloaded the full text of the
orders. Given these circumstances, the district court
concluded that it was inexcusable for AT&T’s multiple
counsel to fail to read all of the underlying orders they
received, or—at minimum—to monitor the docket for any
corrections or additional rulings, which might explain
10 TWO-WAY MEDIA LLC v. AT&T, INC.
why costs had been awarded to TWM. Again, the ques-
tion is not whether we, if acting as trial court judges,
might have excused counsel’s neglect in these circum-
stances, but whether the trial court abused its discretion
when it refused to do so. We see no such abuse of discre-
tion. 2
We conclude that the district court did not abuse its
discretion when it found that AT&T did not satisfy its
burden to show excusable neglect for its failure to read
the underlying orders and check the docket for more than
a month after the court issued the final orders.
b. Reopening the Appeal Period Pursuant Rule 4(a)(6)
After concluding that AT&T’s neglect was not excusa-
ble, the court turned to AT&T’s request for relief under
Rule 4(a)(6). As noted, Rule 4(a)(6) requires, as a predi-
cate, findings by the trial court that: (1) the movant did
not receive notice of the entry of judgment; (2) the movant
filed the motion in a timely fashion; and (3) no party
would be prejudiced by a reopening of the time to appeal.
Even when all of these predicates are satisfied, moreover,
2 Cases which have found excusable neglect based
on misleading information from the court are readily
distinguishable. See, e.g., Mennen Co. v. Gillette Co., 719
F.2d 568, 570–71 (2d Cir. 1983) (finding excusable neglect
where the clerk entered judgment contrary to the judge’s
express instructions telling counsel to submit proposed
entries and the trial court did not clarify that it intended
earlier judgment entry to be a final entry until two days
before the time to appeal expired); Rodgers, 722 F.2d at
461 (affirming a finding of excusable neglect where the
clerk failed to send any notice and did not enter the
judgment as the most recent docket entry, making re-
peated docket checks by counsel ineffective).
TWO-WAY MEDIA LLC v. AT&T, INC. 11
the court retains the discretion to either grant or deny the
motion.
Here, the district court found that AT&T did receive
notice of the entry of judgment when it received and
downloaded those judgments from the electronic docket
and that TWM would be prejudiced by the reopening of
the appeal period, rendering Rule 4(a)(6) inapplicable.
After making these factual findings, moreover, the court
rejected AT&T’s claim that, even if it admittedly received
the actual text of the judgments and of the other orders
entered at the same time, the court should reopen the
appeal because AT&T never received email notifications
that the docket was corrected shortly after the initial
entries to more accurately reflect the substance of the
orders entered. On this point, the trial court expressly
declined “to give ‘an interpretation of Rule 4(a)(6) that
allows parties to ignore entirely the electronic information
at their fingertips,’ as it would ‘severely undermine the
benefits for both courts and litigants fostered by the
CM/ECF system, including the ease and speed of access to
all the filings in a case.’” Two-Way Media LLC v. AT&T
Operations Inc., No. 5:09-cv-476, slip op. at 8 (W.D. Tex.
Feb. 6, 2014), ECF No. 663 (quoting Kuhn v. Sulzer
Orthopedics, Inc., 498 F.3d 365, 371 (6th Cir. 2007)).
We see no clear error in the trial court’s factual find-
ing that AT&T failed to establish that it did not receive
the notice contemplated in Rule 4(a)(6)(A) and no abuse of
discretion in the trial court’s refusal to grant AT&T’s
motion solely because AT&T did not receive an NEF of
the corrected docket entry. 3
3 Given these conclusions, we do not address the
district court’s conclusion that TWM would be prejudiced
by a reopening of the appeal period.
12 TWO-WAY MEDIA LLC v. AT&T, INC.
Like the district court before us, we decline to hold
that the actual receipt of the text of a judgment or order,
which a party knows the court directed to be entered on
the docket, does not constitute notice of the entry of that
judgment within the meaning of Rule 4(a)(6)(A).
Rule 4(a)(6) does not apply when a party simply shows it
did not read a court order—justifiably or not. It only
applies when a party received no notice of that order. For
example, Rule 4(a)(6) does not apply when an attorney
receives the notice in the mail, but does not open it. See
Khor Chin Lim v. Courtcall Inc., 683 F.3d 378, 381 (7th
Cir. 2012) (“The judiciary is not entitled to add time just
because a litigant fails to open or read his mail—or any
other extra-statutory reason.”). AT&T’s argument that it
never read the underlying orders because it was confused
by the NEFs it received, is, therefore, irrelevant; the only
question for purposes of Rule 4(a)(6) is whether it received
notice of the order. When an attorney admittedly receives
any order from the court, as here, and he is expressly
informed that the order was to be entered on the docket
(see, e.g., J.A. 13804, which states “[t]he following trans-
action was entered on 11/25/2013 . . .”), the district court
does not clearly err by finding that he also has received
notice of the entry of that order under Rule 77(d), whether
or not he examines its contents. Where an order is actual-
ly received, but ignored, Rule 4(a)(5) is the procedural
vehicle counsel must pursue to seek relief from its failure
to read or digest the order.
AT&T’s argument that it never received the type of
notice contemplated by Rule 4(a)(6)(A) because it never
received an NEF that described the type of docket entry
required by Rule 79 (i.e., one setting forth a short descrip-
tion of the order or judgment) is unpersuasive. While the
NEF was admittedly inaccurate, AT&T was notified both
that the orders had been entered on the docket and that
the order contained final judgments. See Sanofi-Aventis
Deutschland GmbH v. Glenmark Pharm. Inc., 748 F.3d
TWO-WAY MEDIA LLC v. AT&T, INC. 13
1354, 1358 (Fed. Cir. 2014) (“No ‘magic words’ are needed
to confer final judgment.”). We decline to hold, as a
matter of law, that those circumstances always constitute
an absence of notice for purposes of Rule 4(a)(6)(A).
While AT&T neither cites nor relies upon them, the
dissent contends that a series of cases decided in the
1950s requires us to find an absence of notice under
Rule 4(a)(6)(A). In those cases, the question presented
was whether a docket entry which failed to unambiguous-
ly set forth a final judgment within the meaning of Feder-
al Rule of Civil Procedure 58 was sufficient to trigger the
running of the time for appeal or whether a later docket
entry was the triggering entry. In those cases, the ques-
tion was not whether the first entry accurately described
the underlying order, but whether the underlying order
summarized in the entry unequivocally evidenced the
intent to enter a final judgment. Thus, in United States v.
F. & M. Schaefer Brewing Co., 356 U.S. 227 (1958)—the
primary authority on which the dissent relies, Dissenting
Op. 6—the Supreme Court found the earlier docket entry
inadequate to trigger an appeal because the underlying
order it described failed to contain the type of findings
necessary to constitute a final judgment. 4 356 U.S. at 234
(“[R]espondent argues . . . that inasmuch as the clerk’s
4 The dissent’s reliance on O’Brien v. Harrington,
233 F.2d 17, 18–20 (D.C. Cir. 1956) is also misplaced. In
O’Brien, the district court entered judgment addressing
only one of the two pending claims and did not expressly
direct entry of judgment as to fewer than all pending
claims under Rule 54(b). As such, the appellate court
concluded that the entry of judgment of one claim did not
terminate the action and the whole case was still before
the district court. Id. In this case, on the other hand,
there is no dispute that the district court’s orders ad-
dressed all pending claims.
14 TWO-WAY MEDIA LLC v. AT&T, INC.
entry incorporated the opinion by reference, it, too, ade-
quately stated the amount of the judgment. This conten-
tion might well be accepted were it not for the fact that the
action also sought recovery of interest on the amount paid
. . . .” (emphasis added)). The other cases cited by the
dissent are to the same effect. See Cedar Creek Oil & Gas
Co. v. Fidelity Gas Co., 238 F.2d 298, 301 (9th Cir. 1956)
(finding that neither the court’s order of June 12 nor the
docket entry describing that order “evince[d] clearly an
intent to make a judgment on those days”); Healy v. Pa.
R.R. Co., 181 F.2d 934 (3d Cir. 1950) (finding the trial
court order at issue insufficient to trigger the time for
appeal because motions for a new trial and judgment
notwithstanding the verdict remained pending and unre-
solved for six months thereafter). Because the docket
entries at issue addressed themselves to underlying
orders which were not sufficient to constitute final judg-
ments, the courts refused to treat them as the docket
entries which triggered the time for an appeal. The facts
at issue in those cases are not relevant to the question we
address here.
Pointedly, neither Rule 4(a)(6) nor the meaning of no-
tice thereunder were at issue in the cases to which the
dissent points us. AT&T does not dispute that the under-
lying order it received evinced an unequivocal intention to
enter final judgment and award costs consistent there-
with. Nor is there any debate over which docket entry—
the initial one or the corrected one—triggered AT&T’s
time for appeal. In either case, AT&T’s appeal was un-
timely by a large margin. 5 The only question here is
5 The dissent mischaracterizes our holding. We do
not hold that the order was entered for purposes of trig-
gering AT&T’s time to appeal on November 22, 2013.
That question is neither in dispute, nor presented to us.
Under the various authorities on which the dissent relies,
TWO-WAY MEDIA LLC v. AT&T, INC. 15
whether AT&T was entitled to an NEF of the corrected
docket entry before it can be said to have received notice of
the entry of the admittedly complete and unequivocal
judgments. While we respect the dissent’s contrary view,
we find no legal error in the trial court’s conclusion that it
was not. Again, whatever its faults, the NEFs AT&T did
receive stated clearly that all the cited orders were “en-
tered” on the docket and links to all the orders were
provided. See, e.g., J.A. 13804.
Even if AT&T and the dissent were correct that a sec-
ond NEF from the court was required before it can be said
to have received “notice of the entry of judgment” against
it, moreover, we would still find no abuse of discretion in
the trial court’s refusal to reopen the appeal under Rule
4(a)(6). The district court refused to trigger the relief
contemplated in Rule 4(a)(6) in circumstances where a
party actually has received a final judgment (regardless of
whether the entry of that judgment is accurately de-
scribed), but fails to monitor the electronic docket for a
compliant entry of the judgment. In this era of electronic
filing—post-dating by some 60 years the era in which the
cases cited by the dissent were issued—we find no abuse
of discretion in a district court’s decision to impose an
obligation to monitor an electronic docket for entry of an
order which a party and its counsel already have in their
possession and know that the clerk at least attempted to
enter. 6 Thus, putting aside the question of whether the
prerequisites to application of Rule 4(a)(6) were satisfied,
it is clear that AT&T’s time to appeal was triggered no
later than correction of the docket entry. The only ques-
tion we address is what constitutes adequate notice under
Rule 4(a)(6).
6 Again, the question before us is not which docket
entry triggered the running of the time for appeal.
16 TWO-WAY MEDIA LLC v. AT&T, INC.
we find no abuse of discretion in the denial of AT&T’s
motion under that Rule.
III. CONCLUSION
For the foregoing reasons, we affirm the denial of re-
lief under both Rules 4(a)(5) and (6).
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
TWO-WAY MEDIA LLC,
Plaintiff-Appellee
v.
AT&T, INC., AT&T CORP.,
Defendants
AT&T OPERATIONS, INC., AT&T SERVICES, INC.,
SBC INTERNET SERVICES, INC.,
SOUTHWESTERN BELL TELEPHONE COMPANY,
Defendants-Appellants
______________________
2014-1302
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 5:09-cv-00476-OLG,
Judge Orlando L. Garcia.
______________________
DYK, Circuit Judge, dissenting.
I respectfully dissent from the majority’s holding that
the district court did not have discretion to reopen the
appeal period under Federal Rule of Appellate Procedure
(“FRAP”) 4(a)(6).
Federal Rule of Civil Procedure (“FRCP”) 77(d) pro-
vides that “[i]mmediately after entering an order or
judgment, the clerk must serve notice of the entry, as
2 TWO-WAY MEDIA LLC v. AT&T, INC.
provided in Rule 5(b).” Fed. R. Civ. P. 77(d)(1). FRAP
4(a)(6) provides that a district court may reopen the time
to file an appeal where “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.” Fed. R.
App. P. 4(a)(6). Contrary to the majority, I think that the
substantive orders were not entered on the docket at the
time that AT&T arguably received notice of the orders,
and the required notice of the entry was not provided.
Under the circumstances, FRAP 4(a)(6) applies.
I
The majority incorrectly holds that the interpretation
of FRAP 4(a)(6) is governed by the regional circuit’s law.
The interpretation of FRAP 4(a)(6) is governed by Federal
Circuit law since the issue is jurisdictional. State Con-
tracting & Eng’g Corp. v. Florida, 258 F.3d 1329, 1334
(Fed. Cir. 2001) (“We have established that in matters of
our own jurisdiction, regional circuit law is not binding,
and we are obligated to make an independent determina-
tion of our jurisdiction.”); see Bowles v. Russell, 551 U.S.
205, 215 (2007) (“[T]he timely filing of a notice of appeal
in a civil case is a jurisdictional requirement.”). However,
in relevant respects, regional circuit law and Federal
Circuit law are the same.
II
Under FRAP 4(a), the 30-day time limit for appeal
runs from the “entry of the order disposing of the last”
judgment as a matter of law (“JMOL”) and/or new trial
motion. See Fed. R. App. P. 4(a)(1)(A), 4(a)(4)(A). Here,
two JMOL motions and one new trial motion (the “sub-
stantive motions”) were filed with the district court as
attachments to motions for leave to file under seal (the
TWO-WAY MEDIA LLC v. AT&T, INC. 3
“sealing motions”). 1 The sealing motions were listed on
the docket as numbers 594, 595, and 596. On November
22, 2013, the district court judge signed orders which 1)
granted the sealing motions and 2) denied the substantive
motions. On November 25, the district court clerk for the
first time entered the substantive motions on the docket
as entries 617, 620, and 623. 2 The clerk then made entries
613, 615, and 616 on the docket, which stated that the
sealing motions had been granted. For example, docket
number 613 included the following docket text:
ORDER GRANTING [594] Motion for Leave to
File Sealed Document; GRANTING [599] Motion
for Leave to File Sealed Document; GRANTING
[605] Motion for Leave to File Sealed Document;
GRANTING [608] Motion for Leave to File Sealed
Document Signed by Judge Orlando L. Garcia.
(rf).
J.A. 13804. I refer to these entries as the “sealing order
docket entries” or “sealing entries.” A notice of electronic
filing was generated for each of the sealing order docket
entries, notifying the parties that the sealing motions had
been granted.
Later that day, the clerk modified docket entries 613,
615, and 616 to state that the substantive JMOL and/or
new trial motions had been denied. For example, docket
number 613 was amended to add:
1 AT&T also filed one motion for JMOL or, in the
alternative, new trial that was not under seal. That
motion and its subsequent denial did not form the basis of
AT&T’s FRAP 4(a) motion.
2 Until November 25, the substantive motions did
not have docket numbers assigned because they were
submitted as attachments to motions for leave to file
under seal.
4 TWO-WAY MEDIA LLC v. AT&T, INC.
DENYING 617 SEALED MOTION Signed by
Judge Orlando L. Garcia. (rf) Modified on
11/25/2013, to link to doc #617 (rf). (En-
tered:11/25/2013).
J.A. 74. I refer to these entries as the “substantive order
docket entries.” Notice of the substantive order docket
entries was not provided to the parties.
The district court and the panel majority conclude
that the parties received notice of the entry of the sub-
stantive orders when, at the earlier time when they
received the notices of the sealing order docket entries,
they downloaded the substantive orders. The majority
holds that the substantive orders were entered on the
docket as of the time of the sealing entries and not when
the substantive order docket entries for the first time
stated that the substantive motions had been denied.
With respect, that is simply not correct.
III
FRAP 4(a)(7) establishes that, in these circumstances,
an order or judgment is not “entered” (does not become
effective) until it “is entered in the civil docket under
Federal Rule of Civil Procedure 79(a).” Fed. R. App. P.
4(a)(7)(i). The mere fact that an order is issued does not
start the time for appeal; a docket entry is required.
Wheat v. Pfizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994)
(“[F]or purposes of determining whether a notice of appeal
was timely, the relevant date is the date the post-trial
motion was entered on the docket, not the date it was
filed.”); United States v. Ronne, 414 F.2d 1340, 1342 n.1
(9th Cir. 1969) (“While [the] judgment was filed on No-
vember 22, 1968, it was not entered in the criminal docket
until November 25, 1968. The notice of appeal was filed
within ten days of that date and is therefore timely.”); see
Wimberly v. Rogers, 557 F.2d 671, 673 (9th Cir. 1977)
(“An appeal as of right in a civil suit must be filed within
30 days of the date of entry on the civil docket of the
TWO-WAY MEDIA LLC v. AT&T, INC. 5
judgment or order appealed from.”); Cedar Creek Oil &
Gas Co. v. Fidelity Gas Co., 238 F.2d 298, 300 (9th Cir.
1956) (“It is settled that there is no judgment until the
clerk makes his docket entry.”); O’Brien v. Harrington,
233 F.2d 17, 18–19 (D.C. Cir. 1956) (“Rule 58 provides
that . . . notation in the civil docket constitutes entry of
the judgment; and the judgment is not effective before
such entry. Until the order or judgment is entered in the
civil docket, the case is still in the District Court, there is
no finality, and there can be no appeal.”). 3 Our own court
has frequently applied a similar rule holding that the
time for a rehearing petition under Rule 40 does not begin
to run until the judgment is entered in the docket, even
though the opinion was publicly released days or even
weeks earlier. Thus, even if an order or judgment has
been publicly released and a party is aware of the order or
judgment, if it has not been entered on the docket, the
time for appeal does not begin to run until the clerk
makes a docket entry.
IV
Contrary to the majority, it is equally clear that the
three docket entries concerning the sealing orders here
did not constitute the required “entry” with respect to the
substantive motion orders. FRAP 4(a)(7) states that a
judgment or order is entered “when the judgment or order
is entered in the civil docket under Federal Rule of Civil
Procedure 79(a).” Fed. R. App. P. 4(a)(7)(A)(i).
FRCP 79(a) provides that “[t]he clerk must keep a
record known as the ‘civil docket.’” Fed. R. Civ. P. 79(a)(1).
“Each entry must briefly show the nature of the paper
3 Some of these cases relate to FRCP 58 rather than
to FRAP 4(a). But FRCP 58 has the same rule that judg-
ment is entered only when it is entered on the docket
pursuant to FRCP 79(a). Fed. R. Civ. P. 58(c)(1).
6 TWO-WAY MEDIA LLC v. AT&T, INC.
filed or writ issued, the substance of each proof of service
or other return, and the substance and date of entry of
each order and judgment.” Fed. R. Civ. P. 79(a)(3). Here,
the sealing entries did not show “the substance . . . of [the
substantive] order[s],” Fed. R. Civ. P. 79(a)(2), since they
merely stated that the sealing orders had been granted
and did not mention that the substantive orders were
denied. As shown by United States v. F. & M. Schaefer
Brewing Co., 356 U.S. 227 (1958), and numerous Court of
Appeals cases, a docket entry that does not comply with
FRCP 79(a) does not trigger the time for appeal. 4
4 See Danzig v. Virgin Isle Hotel, Inc., 278 F.2d 580,
582 (3d Cir. 1960) (docket entries of jury verdict along
with amount of verdict were insufficient to start time for
appeal because “the entry of judgment . . . should be
unambiguous on its face so that counsel or a party con-
sulting the docket will have no reasonable basis for doubt
as to the nature and effect of what has been done or as to
the timeliness of further proceedings”); Cedar Creek, 238
F.2d at 300–01 (noting that “[i]t is settled that there is no
judgment until the clerk makes his docket entry,” and
holding that judgment and docket entry did not “evince
clearly an intent to make a judgment” and therefore time
for appeal did not run from those entries); Reynolds v.
Wade, 241 F.2d 208, 210 (9th Cir. 1957) (docket entry that
judgment filed and entered was insufficient to show
substance of entry under FRCP 79(a)); O’Brien, 233 F.2d
at 19–20 (holding that “the court’s judgment with respect
to [one claim] ha[d] never been entered and ha[d] never
become effective” where the docket entry was directly
contrary to the district court’s opinion); Healy v. Pa. R.R.
Co., 181 F.2d 934, 935–37 (3d Cir. 1950) (holding that
appeal was not yet available where opinion and docket
entry were insufficient to constitute entry of order dispos-
ing of post-trial motions, and noting that an order must
TWO-WAY MEDIA LLC v. AT&T, INC. 7
The majority attempts to distinguish these cases be-
cause “[i]n those cases, the question was not whether the
first entry accurately described the underlying order, but
whether the underlying order summarized in the entry
unequivocally evidenced the intent to enter a final judg-
ment.” Maj. Op. at 13. Even if some of these cases in-
volved both insufficient orders and insufficient docket
entries, the cases make clear that a docket entry comply-
ing with FRCP 79(a) is required for an order to be en-
tered. Cases like O’Brien, 233 F.2d at 19–20, cannot be
distinguished on the ground that the underlying order
was insufficient. 5
both be “made and entered in the docket in due form” and
that both “an order and its entry in the docket” are re-
quired by the rules (emphases added)); see also Funk v.
Franklin Life Ins. Co., 392 F.2d 913, 914–15 (7th Cir.
1968) (docket entry that did not show monetary sum
awarded did not start time for appeal because it was
incomplete).
Although there were amendments to FRCP 79 in
1963, after some of these cases were decided, these
amendments were stylistic only. See Fed. R. Civ. P. 79
advisory committee’s note to 1963 amendment. Refer-
ences in some of these cases to FRCP 73(a) correspond to
current standards under FRAP 4(a), which was “derived
from FRCP 73(a) without any change of substance.” Fed.
R. App. P. 4 advisory committee’s note to 1967 adoption.
5 In O’Brien, an employee had sought a declaration
(1) that he was improperly removed from his position and
(2) an order directing the commissioner to reinstate him.
233 F.2d at 18. The district court judge issued an opinion
finding that (1) the employee had been wrongfully termi-
nated but holding that (2) the court could not order rein-
statement and later signed an order to that effect. Id. On
the same day the order was signed, the clerk made the
8 TWO-WAY MEDIA LLC v. AT&T, INC.
Here, the three sealing entries clearly did not reflect
the “substance and date of entry of each order” with
respect to the substantive orders. Fed. R. Civ. P. 79(a)(3).
Rather, they merely stated that the sealing motions had
been granted. Therefore, at the time the notices of elec-
tronic filing were sent to the parties, the substantive
orders had not even been entered. The orders were only
entered once the clerk made entries reflecting the sub-
stantive orders pursuant to FRCP 79(a)(3). The majority’s
holding to the contrary, that the orders were entered on
the docket at the time of the sealing entries on the docket,
is incorrect.
Notices of electronic filing were never sent concerning
the substantive order docket entries. Thus, the clerk
never served, “[i]mmediately after entering an order or
judgment, . . . notice of the entry” of the order. Fed. R.
Civ. P 77(d)(1). While defendants may have had notice of
the underlying order, as the majority holds, and of the
following entry on the docket: “March 26, 1954. Order
granting summary judgment in favor of Def[endant] . . . .”
Id. The D.C. Circuit held that the docket entry was not
effective to enter judgment because “the clerk did not
make a notation of the substance of the court’s judgment,
but distorted it by indicating a ruling directly contrary to
that which had actually been made on the claim for
declaratory relief [for improper removal].” Id. at 19.
“[W]hen [the clerk] fails accurately to note in the civil
docket the substance of a judgment which he has before
him, he is guilty of a clerical misprision.” Id. at 20. Be-
cause judgment had never been entered on the claim for
declaratory relief (due to the clerk’s “clerical misprision”),
judgment had only been entered on the reinstatement
claim. Id. “[T]he court’s judgment with respect to the
claim for declaratory relief [for improper removal] ha[d]
never been entered and ha[d] never become effective.” Id.
TWO-WAY MEDIA LLC v. AT&T, INC. 9
sealing orders, defendants never had notice of the entry of
the substantive orders on the docket. 6 In other words, the
only notice AT&T arguably received of a docket entry was
of the sealing docket entries. That cannot be notice of an
event (the entry on the docket of the denial of the sub-
stantive orders) that has not yet occurred. As a result,
AT&T “did not receive notice under Federal Rule of Civil
Procedure 77(d) of the entry of the judgment . . . within 21
days after entry.” Fed. R. App. P. 4(a)(6)(A). In my view,
since notice of entry of the orders was never provided—
the only event that triggers the time for appeal—both the
district court and the majority err in holding that the
requirements of FRAP 4(a)(6) were not satisfied.
V
The majority suggests that, even if the dissent is cor-
rect as to the scope of FRAP 4(a)(6), the district court
should be sustained because it had discretion to deny
relief under FRAP 4(a)(6). But the district court here did
not exercise discretion. Rather it held that it was without
authority “[b]ecause Defendants received notice of the
denial of their post-trial motions” and therefore would
“not reopen the time to file a notice of appeal under Rule
4(a)(6), which requires a lack of notice.” J.A. 7. The dis-
trict court’s holding was thus premised on an error of law
6 The majority relies on the Seventh Circuit’s deci-
sion in Lim v. Courtcall Inc., 683 F.3d 378, 381 (7th Cir.
2012) for the proposition that receipt of the underlying
judgment or order satisfies FRAP 4(a)(6), but that case
did not address whether receipt of the order without
receipt of the docket entry satisfies the rule, and the
plaintiff there may well have received notice of the docket
entry together with the order. In any event, as discussed
above, the rule is clear—there must be receipt of notice of
the entry of the order, not just the order itself. Only the
entry starts the time for appeal.
10 TWO-WAY MEDIA LLC v. AT&T, INC.
and not an exercise of discretion. “A district court by
definition abuses its discretion when it makes an error of
law.” Koon v. United States, 518 U.S. 81, 100 (1996); Am.
Signature, Inc. v. United States, 598 F.3d 816, 823 (Fed.
Cir. 2010) (“An abuse of discretion may be established
under Federal Circuit law by showing that the court made
a clear error of judgment in weighing the relevant factors
or exercised its discretion based on an error of law or
clearly erroneous fact finding.” (internal quotation marks
omitted)).
VI
I would find that FRAP 4(a)(6) applies here. 7 I re-
spectfully dissent from the majority’s contrary conclusion.
7 FRAP 4(a)(6) also requires that “the court find[]
that no party would be prejudiced.” Fed. R. App. P.
4(a)(6)(C). The district court found that “Plaintiff would
be prejudiced if Defendants are permitted to file its notice
of appeal after missing the deadline. This prejudice also
prevents the Court from granting Defendants an exten-
sion of time to file its notice of appeal under Rule 4(a)(6).”
J.A. 7. The majority correctly does not rely on this state-
ment by the district court. Plaintiff argued at the district
court that it was prejudiced because it paid a debt in cash
after the deadline had passed for AT&T to appeal. Plain-
tiff stated that “[b]y foregoing the alternative [non-cash]
option due to plaintiff’s reliance on the missed deadline,
plaintiff was prejudiced because it was prevented from
using those funds to pursue other opportunities separate
and apart from this litigation.” J.A. 13871. It is unclear
how this could establish that re-opening the time for
appeal would prejudice plaintiff. Furthermore, defendants
offered in response to reimburse plaintiff for costs it
incurred as a result of paying in cash. Prejudice requires
“some adverse consequence other than the cost of having
TWO-WAY MEDIA LLC v. AT&T, INC. 11
to oppose the appeal and encounter the risk of reversal,
consequences that are present in every appeal.” Fed. R.
App. P. 4 advisory committee’s note to 1991 amendment.