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United States Code (Last Updated: May 24, 2014) |
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AppendixAA 28a. JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS |
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CourtRules FEDERAL RULES OF CIVIL PROCEDURE |
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Title X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS |
CourtRule 77. Conducting Business; Clerk’s Authority; Notice of an Order or Judgment
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(a) When Court Is Open. Every district court is considered always open for filing any paper, issuing and returning process, making a motion, or entering an order. (b) Place for Trial and Other Proceedings. Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom. Any other act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district. But no hearing—other than one ex parte—may be conducted outside the district unless all the affected parties consent. (c) Clerk’s Office Hours; Clerk’s Orders. (1) Hours. The clerk’s office—with a clerk or deputy on duty—must be open during business hours every day except Saturdays, Sundays, and legal holidays. But a court may, by local rule or order, require that the office be open for specified hours on Saturday or a particular legal holiday other than one listed in Rule 6(a)(4)(A). (2) Orders. Subject to the court’s power to suspend, alter, or rescind the clerk’s action for good cause, the clerk may: (A) issue process; (B) enter a default; (C) enter a default judgment under Rule 55(b)(1); and (D) act on any other matter that does not require the court’s action. (d) Serving Notice of an Order or Judgment. (1) Service. Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear. The clerk must record the service on the docket. A party also may serve notice of the entry as provided in Rule 5(b). (2) Time to Appeal Not Affected by Lack of Notice. Lack 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).
Miscellaneous
This rule states the substance of U.S.C., Title 28, § 13 [now 452] (Courts open as courts of admiralty and equity). Compare [former] Equity Rules 1 (District Court Always Open For Certain Purposes—Orders at Chambers), 2 (Clerk’s Office Always Open, Except, Etc.), 4 (Notice of Orders), and 5 (Motions Grantable of Course by Clerk).
Rule 77(d) has been amended to avoid such situations as the one arising in Hill v. Hawes (1944) 320 U.S. 520. In that case, an action instituted in the District Court for the District of Columbia, the clerk failed to give notice of the entry of a judgment for defendant as required by Rule 77(d). The time for taking an appeal then was 20 days under Rule 10 of the Court of Appeals (later enlarged by amendment to thirty days), and due to lack of notice of the entry of judgment the plaintiff failed to file his notice of appeal within the prescribed time. On this basis the trial court vacated the original judgment and then reentered it, whereupon notice of appeal was filed. The Court of Appeals dismissed the appeal as taken too late. The Supreme Court, however, held that although Rule 77(d) did not purport to attach any consequence to the clerk’s failure to give notice as specified, the terms of the rule were such that the appellant was entitled to rely on it, and the trial court in such a case, in the exercise of a sound discretion, could vacate the former judgment and enter a new one, so that the appeal would be within the allowed time.
Because of Rule 6(c), which abolished the old rule that the expiration of the term ends a court’s power over its judgment, the effect of the decision in Hill v. Hawes is to give the district court power, in its discretion and without time limit, and long after the term may have expired, to vacate a judgment and reenter it for the purpose of reviving the right of appeal. This seriously affects the finality of judgments. See also proposed Rule 6(c) and Note; proposed Rule 60(b) and Note; and proposed Rule 73(a) and Note.
Rule 77(d) as amended makes it clear that notification by the clerk of the entry of a judgment has nothing to do with the starting of the time for appeal; that time starts to run from the date of entry of judgment and not from the date of notice of the entry. Notification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal; but in considering an application for extension of time for appeal as provided in Rule 73(a), the court may take into account, as one of the factors affecting its decision, whether the clerk failed to give notice as provided in Rule 77(d) or the party failed to receive the clerk’s notice. It need not, however, extend the time for appeal merely because the clerk’s notice was not sent or received. It would, therefore, be entirely unsafe for a party to rely on absence of notice from the clerk of the entry of a judgment, or to rely on the adverse party’s failure to serve notice of the entry of a judgment. Any party may, of course, serve timely notice of the entry of a judgment upon the adverse party and thus preclude a successful application, under Rule 73(a), for the extension of the time for appeal.
Subdivision (c). The amendment authorizes closing of the clerk’s office on Saturday as far as civil business is concerned. However, a district court may require its clerk’s office to remain open for specified hours on Saturdays or “legal holidays” other than those enumerated. (“Legal holiday” is defined in Rule 6(a), as amended.) The clerk’s offices of many district courts have customarily remained open on some of the days appointed as holidays by State law. This practice could be continued by local rule or order.
Subdivision (d). This amendment conforms to the amendment of Rule 5(a). See the Advisory Committee’s Note to that amendment.
The provisions of Rule 73(a) are incorporated in Rule 4(a) of the Federal Rules of Appellate Procedure.
The amendment adds Columbus Day to the list of legal holidays. See the Note accompanying the amendment of Rule 6(a).
The amendments are technical. No substantive change is intended. The Birthday of Martin Luther King, Jr. is added to the list of national holidays in Rule 77.
This revision is a companion to the concurrent amendment to Rule 4 of the Federal Rules of Appellate Procedure. The purpose of the revisions is to permit district courts to ease strict sanctions now imposed on appellants whose notices of appeal are filed late because of their failure to receive notice of entry of a judgment. See, e.g. Tucker v. Commonwealth Land Title Ins. Co., 800 F.2d 1054 (11th Cir. 1986); Ashby Enterprises, Ltd. v. Weitzman, Dym & Associates, 780 F.2d 1043 (D.C. Cir. 1986); In re OPM Leasing Services, Inc., 769 F.2d 911 (2d Cir. 1985); Spika v. Village of Lombard, Ill., 763 F.2d 282 (7th Cir. 1985); Hall v. Community Mental Health Center of Beaver County, 772 F.2d 42 (3d Cir. 1985); Wilson v. Atwood v. Stark, 725 F.2d 255 (5th Cir. en banc), cert dismissed, 105 S.Ct. 17 (1984); Case v. BASF Wyandotte, 727 F.2d 1034 (Fed. Cir. 1984), cert. denied, 105 S.Ct. 386 (1984); Hensley v. Chesapeake & Ohio R.R.Co., 651 F.2d 226 (4th Cir. 1981); Buckeye Cellulose Corp. v. Electric Construction Co., 569 F.2d 1036 (8th Cir. 1978).
Failure to receive notice may have increased in frequency with the growth in the caseload in the clerks’ offices. The present strict rule imposes a duty on counsel to maintain contact with the court while a case is under submission. Such contact is more difficult to maintain if counsel is outside the district, as is increasingly common, and can be a burden to the court as well as counsel.
The effect of the revisions is to place a burden on prevailing parties who desire certainty that the time for appeal is running. Such parties can take the initiative to assure that their adversaries receive effective notice. An appropriate procedure for such notice is provided in Rule 5.
The revised rule lightens the responsibility but not the workload of the clerks’ offices, for the duty of that office to give notice of entry of judgment must be maintained.
Rule 77(d) is amended to reflect changes in Rule 5(b). A few courts have experimented with serving Rule 77(d) notices by electronic means on parties who consent to this procedure. The success of these experiments warrants express authorization. Because service is made in the manner provided in Rule 5(b), party consent is required for service by electronic or other means described in Rule 5(b)(2)(D). The same provision is made for a party who wishes to ensure actual communication of the Rule 77(d) notice by also serving notice.
Changes Made After Publication and Comments Rule 77(d) was amended to correct an oversight in the published version. The clerk is to note “service,” not “mailing,” on the docket.
The language of Rule 77 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
References In Text
The Federal Rules of Appellate Procedure, referred to in subd. (d)(2), are set out in this Appendix.