On January 24, 2013, the US Court of Appeals for the Second Circuit issued an opinion in Communications Network International, Ltd. v. MCI WorldCom Communications, Inc. reversing the district court's order granting the defendant's motion to reopen the time within which to appeal. Its reversal was based on the reason for the defendant's nonreceipt of the entry of judgment, finding that the defendant's failure to update its contact information according to the court's rules was the reason it did not receive the entry of judgment.

In this case, the district court affirmed the bankruptcy court's rulings on September 14, 2010, and entered judgment on September 24, 2010. Under Federal Rule of Civil Procedure (FRCP) 77, notice of the entry of judgment was sent to the e-mail address of counsel of defendant Communications Network International, Ltd. (CNI) that was registered with the court's CM/ECF system. In September 2008, CNI's counsel had filed a motion to appear pro hac vice, in which he listed a new e-mail address. He did not change his contact information or profile on the CM/ECF system to reflect this new e-mail address. On November 9, 2010, after the time to file a notice of appeal had expired, CNI's counsel updated his e-mail address on the CM/ECF system and filed a belated notice of appeal. MCI WorldCom Communications, Inc. (MCI) moved to dismiss the appeal. On December 16, 2010, under Federal Rule of Appellate Procedure (FRAP) 4(a)(6), CNI moved to reopen the time within which to file a notice of appeal, arguing that its counsel had not received notice of the entry of judgment. The district court granted CNI's motion to reopen the time to appeal because CNI had not received timely notice of the court's affirmance of the bankruptcy court's rulings.

The Second Circuit held first that FRAP 4(a)(6)'s discretionary option for the district court judge to reopen the time to appeal for lack of receipt of the entry of judgment referred to actual receipt, not just service. Although CNI met FRAP 4(a)(6)'s preconditions, the Second Circuit held that the district court did not correctly use its discretion in granting CNI's motion. The court reasoned that in light of the purpose of FRAP 4(a)(6) and the history of its drafting, the rule was not meant to provide relief in cases like this one, in which the reason for the losing litigant's nonreceipt of the entry of a judgment was its counsel's failure to update its contact information. The circuit court looked to the Southern District of New York's E-Filing Registration Form and ECF Rules, both of which require filing counsel to keep contact information accurate, and concluded that CNI's counsel had violated these directives.

This case is an important reminder that counsel must keep contact information, especially an e-mail address, updated. Furthermore, the Second Circuit's decision reminds counsel that FRCP 77(d) notice is meant for the convenience of litigants, and that counsel must monitor the docket to stay apprised of the entry of orders they may want to appeal.