Comsat Corporation v. IDB Mobile Commun

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COMSAT CORPORATION,
Plaintiff-Appellant,
v.
IDB MOBILE COMMUNICATIONS,
No. 99-2271
INCORPORATED; TELEGLOBE,
INCORPORATED; WORLDCOM,
INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-98-281-AW)
Submitted: March 28, 2000
Decided: May 2, 2000
Before WIDENER, WILKINS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Mark D. Wegener, Mark I. Levy, HOWREY & SIMON, Washington,
D.C., for Appellant. Alfred M. Mamlet, Maury D. Shenk, Omer C.
Eyal, STEPTOE & JOHNSON, L.L.P., Washington, D.C., for Appel-
lees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
COMSAT Corporation appeals from the district court's order deny-
ing its motion filed under Fed. R. Civ. P. 60(a), (b). We affirm.
COMSAT's motion requested that the district court: (1) correct the
record to show that its original motion for reconsideration was filed
on May 13, 1998, rather than May 18, 1998, making it fall within the
ten-day period specified in Fed. R. Civ. P. 59(e) for tolling the run-
ning of the appeal period; and (2) vacate its orders of July 6, 1998,
and October 1, 1998, and enter a new order from which COMSAT
could file a timely notice of appeal.
Addressing the second of these issues first, by seeking to have the
district court vacate its prior orders and enter a new one, COMSAT
is, as the district court recognized, essentially seeking an extension of
the mandatory time limits set forth in Fed. R. Civ. P. 4(a). This is
impermissible. Federal Rule of Civil Procedure 77(d) clearly provides
that "[l]ack of notice of the entry by the clerk does not affect the time
to appeal or relieve or authorize the court to relieve a party for failure
to appeal within the time allowed except as permitted in Rule 4(a) of
the Federal Rules of Appellate Procedure." Fed. R. Civ. P. 77(d).
Moreover, this Court has explicitly held "that 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."
Hensley v. Chesapeake & O. Ry., 651 F.2d 226, 228 (4th Cir. 1981).1
Accordingly, we find that the district court properly denied this
motion.
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1 Although exceptions to this rule might exist for cases involving
"unique circumstances," such cases "``have required more than the mere
failure to notify the parties that judgment has been entered.'" Hensley,
987 F.2d at 230 (quoting Mizell v. Attorney General of New York, 586
F.2d 942, 944-45 n.2 (2d Cir. 1978)).
2
This determination makes resolution of the first issue unnecessary
aside from COMSAT's desire to appeal the October 1, 1998, order
denying its prior motion for reconsideration. Even assuming that the
October 1, 1998, order was not merely a reentry of the July 6, 1998
order, but instead constituted a new order from which COMSAT
could appeal, because COMSAT raised no arguments concerning this
order in its prior appeal before this court, we find that it has waived
its opportunity to do so now.
Finally, COMSAT requests that this court exercise its authority
under 28 U.S.C. § 2106 (1994) to direct entry of a fresh order from
which it may note a timely appeal. Given the clear statements of Hen-
sley above, along with the admonition that "counsel have a duty to
inquire about the status of their cases, and the mere failure to receive
notice of an entry of an order is, by itself, insufficient to extend the
time for appeal," Maksymchuk v. Frank, 987 F.2d 1072, 1075-76 (4th
Cir. 1993) (citing Hensley, 651 F.2d at 230-31), we decline COM-
SAT's request to exercise the authority provided in§ 2106.
Accordingly, we affirm the district court's denial of COMSAT's
motion. We deny Appellees' motion for attorney's fees and costs, but
grant their motion to submit the case on briefs because the facts and
legal contentions are adequately presented in the material before the
court and argument would not aid the decisional process.
AFFIRMED
3