In re: Howard W. Rubinstein

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11158
Non-Argument Calendar
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In re: HOWARD W. RUBINSTEIN,
Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-mc-25055
____________________
Before GRANT, B RASHER , and ANDERSON, Circuit Judges.
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2 Opinion of the Court 22-11158
PER CURIAM:
This appeal is the third in a series of appeals related to Mr.
Rubinstein’s disciplinary action.
See In re Rubinstein (Rubinstein
I), 756 F. App’x 892 (11th Cir. 2018);
In re Rubinstein (Rubinstein
II), 845 F. App’x 910 (11th Cir. 2021) (mem.). Rubinstein argues
that on the same day the mandate of his second appeal was issued
to the district court, the district court entered an Order of Dis-
barment against him but failed to provide him notice that the or-
der was entered. As a result, Rubinstein claims he only discov-
ered the order eight months later when he was making plans to
seek readmission. Rubinstein brought a motion under Rule 60(b)
to vacate the order and re-enter the order such that he could then
file a timely appeal or, in the alternative, allow him the oppor-
tunity to present argument to the district court in the first in-
stance. The district court denied his motion, and Rubinstein ap-
pealed. For the reasons below, we agree with the district court
and affirm.
Appellate review of an appeal from a Rule 60(b) motion “is
limited to whether the district court abused its discretion in deny-
ing the motion.”
Tessmer v. Walker, 833 F.2d 925, 926 (11th Cir.
1987). Rubinstein argues that because the district court is at-
tempting to discipline him here, the district court is the adverse
party. Thus, Rubinstein contends, we should review the district
court’s ruling
de novo. But we “review a district court’s disbar-
ment order only for abuse of discretion.”
In re Calvo, 88 F.3d 962,
967 (11th Cir. 1996). Regardless, we need not decide whether this
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22-11158 Opinion of the Court 3
unique posture alters our standard of review because, under ei-
ther standard, we would affirm.
Federal Rule of Civil Procedure 60(b) and Federal Rule of
Civil Procedure 77(d) are the key provisions for this appeal. Fed-
eral Rule of Civil Procedure 60(b) allows a court to “relieve a par-
ty or its legal representative from a final judgment, order, or pro-
ceeding” for, among other reasons, “mistake, inadvertence, sur-
prise, or excusable neglect.” Federal Rule of Civil Procedure
77(d)(1) requires that the clerk of the court “serve notice of the
entry” of an order of judgment. But, the Rule provides, “[l]ack 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.” Fed. R. Civ. P. 77(d)(2). Despite this
language, we have held that while lack of notice alone is insuffi-
cient for granting a Rule 60(b) motion, “it is nevertheless a cir-
cumstance which may militate in favor of granting such a motion,
when coupled with certain other considerations.”
Tessmer, 833
F.2d at 927;
Zurich Ins. Co. v. Wheeler, 838 F.2d 338, 340 (9th Cir.
1988) (holding same).
Here, Rubinstein argues that the clerk’s failure to provide
notice constitutes excusable neglect. But Rubinstein rests his ar-
gument solely on the lack of notice, which “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.” Fed. R. Civ.
P. 77(d)(2). In
Tessmer, where we granted a Rule 60(b) motion,
the clerk not only failed to provide notice of the order, but
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4 Opinion of the Court 22-11158
Tessmer’s counsel also made monthly telephone inquiries to the
clerk to monitor the status and was repeatedly told incorrect in-
formation regarding the status of the order.
Tessmer, 833 F.2d at
927. Similarly, in
Zurich, the clerk failed to provide notice and
incorrectly “told counsel that the order had not been entered.”
Zurich, 838 F.2d at 340. In contrast, Rubinstein does not argue
that he or his attorney was similarly diligent in calling the clerk or
monitoring the docket. In other words, Rubinstein fails to assert
any “other considerations” that would weigh in favor of granting
his Rule 60(b) motion.
Tessmer, 833 F.2d at 927. Rubinstein in-
stead only argues that the clerk failed to notify him. But “[t]his
court has held consistently that the clerk’s failure to provide no-
tice of the entry of a judgment is not itself sufficient grounds for
the vacation of that judgment under Rule 60(b).”
Id. at 926. Ac-
cordingly, we affirm.
AFFIRMED.
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