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Khor Chin Lim v. Courtcall Inc.

June 19, 2012

KHOR CHIN LIM, PLAINTIFF-APPELLANT,
v.
COURTCALL 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.

The opinion of the court was delivered by: Easterbrook, Chief Judge.

SUBMITTED MAY 18, 2012

Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

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 court dismissed this suit as fantastical. 2011 U.S. Dist. LEXIS 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, 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 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. ...


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