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CIVIL PROCEEDURE - Motion to Reopen Time to File Appeal denied

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
________________________________________________________________
YAN ZHANG,
Plaintiff,
v. ORDER
Civil File No. 06-2265 (MJD/AJB)
EQUITY OFFICE PROPERTIES TRUST,
Defendant.
________________________________________________________________
Yan Zhang, pro se.
James R. Harries and David A. Orenstein, Parsinen Kaplan Rosberg & Gotlieb,
Counsel for Defendant.
________________________________________________________________
I. INTRODUCTION
This matter is before the Court on Plaintiff Yan Zhangs Motion for
Reopening the Time to File an Appeal Under Federal Rules of Appellate Procedure
Rule 4(a)(6). [Docket No. 83]
II. BACKGROUND
On January 3, 2007, this Court entered an Order [Docket No. 65] denying
Zhangs Motion for Partial Summary Judgment [Docket No. 7], granting
Defendant Equity Office Properties Trusts Motion for Summary Judgment or to
Dismiss [Docket No. 18], and granting Defendants Motion for Sanctions [Docket
2
No. 36]. Judgment was entered on January 4, 2007. [Docket No. 66] Zhang
then filed a letter request to file a motion for reconsideration [Docket No. 69].
On February 21, 2007, the Court denied his request. [Docket No. 74] On
February 27, 2007, the Court entered an Order awarding attorney fees and costs
to Defendant. [Docket No. 75] On March 13, 2007, Zhang filed a notice of
appeal to the Eighth Circuit. [Docket No. 76]
On April 10, 2007, Zhang filed a Motion Under Federal Rule of Civil
Procedure Rule 60(b) seeking relief from judgment. [Docket No. 79] On April
26, 2007, the Court denied Zhangs Motion. [Docket No. 82]
On May 24, 2007, Zhang filed the current Motion for Reopening the Time
to File an Appeal Under Federal Rules of Appellate Procedure Rule 4(a)(6).
[Docket No. 83] Zhang has filed an affidavit averring that the notice that he
received of the Courts April 26 Order was insufficient. The copy of the Notice of
Filing that Zhang has attached to his affidavit does correctly state that the Courts
Order of April 26, 2007 [Docket No. 82] denied Zhangs Motion that was labeled
Docket No. 79; however, the notice also refers to Docket No. 79 as a motion for
reconsideration, when, in fact, it was a Motion Under Federal Rule of Civil
Procedure 60(b).
In his Reply, Zhang states under penalty of perjury that he did receive a
copy of the April 26 Order on or before May 8, 2007, but that he did not receive a
correct Notice of Filing related to that Order. (Reply at 5, 5 n.7.) Zhang claims
3
that he was confused regarding when the April 26 Order was actually entered or
filed, so he did not know when to appeal.
Because the Courts Order denying Zhangs Rule 60(b) motion was entered
on April 26, 2007 and more than thirty days have passed but Zhang has not yet
filed his Notice of Appeal to the Eighth Circuit, the time for his appeal has
expired. Fed. R. App. P. 4(a)(1) (providing that notice of appeal . . . must be
filed with the district clerk within 30 days after the judgment or order appealed
from is entered). Zhang requests that the Court reopen the time for appeal and
grant him an additional 14 days to file his Notice of Appeal.
III. DISCUSSION
A. Standard
Under Federal Rule of Appellate Procedure 4(a)(6),
[t]he 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 7 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.
4
The court has discretion to reopen the time to file an appeal only if all
three conditions [of Federal Rule of Appellate Procedure 4(a)(6)] are satisfied.
Am. Boat Co., Inc. v. Unknown Sunken Barge, 418 F.3d 910, 913 (8th Cir. 2005)
(citation omitted).
B. Request to Reopen Time for Appeal of April 26, 2007 Order
Zhang asks that the Court reopen the time to appeal the Courts April 26,
2007 Order on the grounds that the April 26 Notice of Filing did not effectively
notify him of the filing of the Courts Order denying his Rule 60(b) Motion.
Defendant opposes Zhangs motion. It argues that the April 26 Notice
provided adequate notice to Zhang. First, the docket numbers on the April 26
Notice were higher than those on the February Notice of Filing Zhang received
regarding the Courts denial of Zhangs Motion for Reconsideration. Also, Zhang
had recently filed a Rule 60(b) Motion, and the April 26 Notice referenced the
correct docket number for that motion.
The Court concludes that it is without discretion to reopen the time for
appeal of the April 26, 2007 Order because Zhang received adequate notice of the
Order and did not file his motion to reopen within 7 days of receiving such notice.
Zhang admits that he received the Notice of Filing of the Courts Order
stating that the Court denied his motion docketed as Docket No. 79 on April 26,
2007. Although there could be some question regarding the adequacy of the
Notice of Filing on the grounds that it incorrectly recounts the title of the motion
5
that the Court denied, the Court finds that Zhang did, overall, receive adequate
notice because he also admits receiving a copy of the Courts actual April 26, 2007
Order denying his Motion Under Rule 60(b) upon his return to his home from a
trip to China on May 8, 2007. The Court concludes that receipt of the Courts full
Order denying Zhangs Rule 60(b) motion, in combination with the Notice of
Filing citing the correct date of the Order and the correct docket number of the
denied motion, was sufficient notice to Zhang. Because Zhang received notice of
the Courts April 26, 2007 Order within 21 days after it was entered, the Court is
without discretion to reopen the time for appeal.
Additionally, Zhang received a copy of the Courts signed Order denying his
Motion Under Rule 60(b) by, at the latest, May 9, 2007, but he did not file his
motion to reopen his time for appeal until May 24, 2007, which is more than 7
business days later. Thus, for this independent reason, the Court is without
discretion to reopen the time for appeal.
C. January 3, 2007 Order
Defendant also argues that the Court should not reopen the time for appeal
of the Courts January 3, 2007 Order. Zhang has not requested any relief with
regard to the January 3 Order in the motion or filings currently before the Court.
There are multiple independent reasons that the Court will not reopen the time
for appeal with regard to its January 3 Order.
6
Defendant asserts that Zhang did raise this issue in an unsworn letter to the
Court dated April 26, 2007. The Court has not received a letter from Zhang
bearing that date. The Court did receive an April 20, 2007 letter from Zhang
related to Zhangs Rule 60(b) Motion that mentions his assertion that he did not
receive notice of the Courts entry of judgment in that matter, but does admit that
he received a copy of the January 3 Order. The April 20 letter has not been filed
in this matter, is not a sworn affidavit, and only addresses Zhangs desire for oral
argument on his Rule 60(b) motion, not the motion currently before the Court.
Zhang has now submitted an affidavit averring that he did not receive
written Notice of Filing of the January 3 Order until May 24, 2007. The Notice of
Filing attached to the January 3 Order is correct and clear. The CM/ECF docket
states that Notice will be delivered by other means to: Zhangs mailing address
as provided on the docket. Zhangs affidavit is insufficient evidence to prove that
he did not receive a timely Notice of Filing of the Courts January 3 Order. See
Arnold v. Wood, 238 F.3d 992, 995-96 (8th Cir. 2001) (In the absence of reliable
evidence to the contrary, we presume the accuracy of the district court clerks
docket entries. See MacNeil v. State Realty Co. of Boston, Inc., 229 F.2d 358, 359
(1st Cir. 1956) (It may perhaps be that an erroneous entry . . . was made by the
clerk of the court below. But we do not consider the affidavit of the appellant
standing alone sufficient to outweigh the respect to be accorded in this court to
the docket entries certified for appeal by the clerk of the District Court.); cf. Ark.
7
Motor Coaches, Ltd., Inc. v. Commr of Internal Revenue, 198 F.2d 189, 191 (8th
Cir. 1952) (explaining that the presumption of accuracy in favor of docket entries
may be rebutted only by a stronger presumption such as the mailbox rule).)
Significantly, Zhang does not aver that he did not receive timely Notice of
Filing of the January 4, 2007 Judgment, or the January 4 Judgment itself, which
included the Courts holding in the January 3 Order, as well as a letter explaining
that Federal Rule of Appellate Procedure 4(a) requires that an appeal be filed
within 30 days after entry of the judgment or thirty days after entry of an order
granting or denying a motion for reconsideration. It was the entry of Judgment
that triggered the 30-day time period for Zhang to appeal, and there is no
admissible evidence that he did not receive notice of that Judgment. This
provides a separate basis for the Courts decision to not reopen the time to appeal
the January 3 Order.
Furthermore, the Court addressed Zhangs motion for reconsideration on
the merits; Zhang has not averred that he did not receive complete notice of the
Courts February 21, 2007 Order on that motion; and Zhangs time to appeal ran
from entry of that Order.
In any case, Zhang has not requested relief related to the January 3 Order
in the motion currently before the Court, and [a]n appeal from the denial of a
Rule 60(b) motion does not raise the underlying judgment for [appellate] review
but only the question of whether the district court abused its discretion in ruling
8
on the Rule 60(b) motion. Noah v. Bond Cold Storage, 408 F.3d 1043, 1045
(8th Cir. 2005).
For all these reasons, the Court will not reopen the time for appeal of the
January 3, 2007 Order and January 4, 2007 Judgment
Accordingly, based upon the records, proceedings, and files herein, IT IS
HEREBY ORDERED that:
Plaintiff Yan Zhangs Motion for Reopening the Time to File an Appeal
Under Federal Rules of Appellate Procedure Rule 4(a)(6) [Docket No. 83]
is DENIED.
Dated: August 22, 2007 s / Michael J. Davis
Judge Michael J. Davis
United States District Court
 

 
 
 

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