                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
LJUBICA RAJKOVIC,                  )
                                   )
            Plaintiff,             )
                                   )
      v.                           )    Civil Action No. 11-1508 (RMC)
                                   )
FEDERAL BUREAU OF                  )
INVESTIGATION, et al.,             )
                                   )
            Defendants.            )
_________________________________  )

                                  MEMORANDUM OPINION

               Plaintiff Ljubica Rajkovic, a resident of Serbia proceeding pro se, filed this

lawsuit against the Federal Bureau of Investigation and the Department of Justice under, inter

alia, the Freedom of Information Act, 5 U.S.C. § 552. She contends that she has been

“affect[ed] . . . with not-authorized on-going surveillance, covert actions, and play [sic] with her

as a target, creating life threatening and/or degrading situations comprising execution of brutal,

persistent, and perpetual harassment and discrimination of all types, including the audio-visual

and street harassment,” and she seeks records in the government’s possession that would shed

light on those actions. Compl. [Dkt. 1] ¶ 11. Now before the Court is Ms. Rajkovic’s Emergency

Motion to Extend Time to File an Appeal. For the reasons set forth below, her motion will be

denied.

               Ms. Rajkovic filed a number of filings and motions, including one for “Service of

Court Orders,” see Dkt. 12, which the Court denied as moot because “[a]s part of standard

procedure, the Clerk already sends all Court orders to this pro se Plaintiff,” see First Jan. 13,

2012 Minute Order. Defendants offered to release to Ms. Rajkovic certain records that “that are

not normally released because they are administrative records dealing with Plaintiff’s FOIA
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request,” and the Court directed Ms. Rajkovic to advise the Court whether she wanted those

documents. See May 1, 2012 Order [Dkt. 24]. Noting that Ms. Rajkovic had failed to respond to

several Orders, including one giving her leave to file an amended complaint, the Court also

ordered: “if Plaintiff still wishes to file an Amended Complaint she must do so by no later than

June 18, 2012.” Id.

               Ms. Rajkovic never responded, and on July 13, 2012, Defendants filed a Motion

to Dismiss or, Alternatively, Motion for Summary Judgment. See [Dkt. 27]. On July 19, 2012,

the Court issued an Order directing Ms. Rajkovic to respond no later than September 18, 2012,

pursuant to Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988) and Neal v. Kelly, 963 F.2d 453,

456 (D.C. Cir. 1992). See Fox-Neal Order [Dkt. 28]. Once again, Ms. Rajkovic never

responded, although she did file a “Motion for Her Right to Be Informed” dated July 31, 2012,

stating merely that she wanted to know “the present status of her proceeding.” See [Dkt. 29].

On November 27, 2012—more than four months after issuing the Fox-Neal Order—the Court

dismissed the case without prejudice and ordered that the case be closed.

               On April 18, 2013, Ms. Rajkovic filed a “Motion for Relief from the Final

Dismissal Order” pursuant to Federal Rule of Civil Procedure 60(b)(3), asserting that the Court’s

dismissal of her case was “void” because of, inter alia, “false service on the Plaintiff.” See Rule

60(b)(3) Mot. [Dkt. 31] at 1. The Court denied the Rule 60(b)(3) motion, noting that “[t]he

Court’s routine procedure of sending to pro se litigants hard copies of all orders, including

minute orders, was followed” and that Ms. Rajkovic “repeatedly failed to comply with the

Court’s Orders, notwithstanding clear direction, lengthy deadlines, and several opportunities to

do so.” See April 19, 2013 Order [Dkt. 32].




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               Ms. Rajkovic then filed a Notice of Appeal, dated May 24, 2013 and docketed on

May 30, 2013, as to the Court’s November 27, 2012, dismissal of her complaint without

prejudice. See Notice of Appeal [Dkt. 33]. She also filed a “Motion to Extend Time to File

Emergency Motion for Reopening the Time to File an Appeal,” Dkt. 36, and “Emergency

Motion for Reopening the Time to File an Appeal,” Dkt. 37. The former is a motion for leave to

file the latter, and the motion for leave to file will be granted. In the Emergency Motion for

Reopening the Time to File an Appeal (“Emerg. Mot.”), Dkt. 37, Ms. Rajkovic asserts that she

“was not served with the entry of [the November 27, 2012] Order and she never received notice

of the entry of the Order,” making her motion to reopen the time to file an appeal timely under

Federal Rule of Appellate Procedure 4(a)(6).

               The time limit for filing an appeal is mandatory and jurisdictional. See Browder

v. Director, Dep’t of Corr. of Illinois, 434 U.S. 257, 264 (1978); Moore v. S.C. Labor Bd., 100

F.3d 162, 163 (D.C. Cir. 1996). Under Appellate Rule 4(a)(1)(B), a party has sixty days to note

an appeal “after entry of the judgment or order appealed from” when the United States or one of

its agencies or employees is a party. Under D.C. Circuit precedent, “dismissal of an action—

whether with or without prejudice—is final and appealable,” even if a plaintiff “may be able to

re-file because the dismissal was without prejudice” because “in the absence of such an

affirmative act on [the plaintiff’s] part, the case is at an end.” Ciralsky v. CIA, 355 F.3d 661,

666–67 (D.C. Cir. 2004). Therefore, in this case, Ms. Rajkovic had sixty days from entry of the

Court’s November 27, 2012 Minute Order to note her appeal. That time period expired with no

action from Ms. Rajkovic. Moreover, the time window for Ms. Rajkovic to file a motion to

extend the time to note an appeal—thirty days after the expiration of the time to appeal, upon a

showing of excusable neglect or good cause, see Fed. R. App. P. 4(a)(5)(A) & (C)—likewise



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lapsed without Ms. Rajkovic taking action. The Rule 60(b)(3) motion was not effective to toll

the time to for filing an appeal under Rule 4(a)(4) because it was not filed within 28 days of

November 27, 2012. See Fed. R. App. P. 4(a)(4)(A)(vi) (“If a party timely files in the district

court any of the following motions under the Federal Rules of Civil Procedure, the time to file an

appeal runs for all parties from the entry of the order disposing of . . . [a motion] for relief under

Rule 60 if the motion is filed no later than 28 days after the judgment is entered.”).

                The Court thus lacks jurisdiction to extend the time to file an appeal unless it can

reopen the time for filing an appeal under Fed. R. App. P. 4(a)(6). “The district court may

reopen the time to file an appeal for a period of 14 days . . . 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.” Fed. R. App. P. 4(a)(6) (emphasis added). Ms. Rajkovic’s motion is

deficient as to the first requirement because she concedes that she received a copy of the Court’s

November 27, 2012 Minute Order dismissing this case. See Emerg. Mot. at 1 (acknowledging

that she “was served with a copy of an automatic e-mail message in paper form entitled ‘Notice

of Electronic Filing’ for the Order of November 27, 2012”). Ms. Rajkovic received a copy of

the minute order pursuant to the Court’s regular procedure for mailing copies of minute orders to

litigants not registered for ECF. See, e.g., LCvR 5.4(d)(1), 5.4(e)(3). Her motion for reopening

the time to file an appeal is thus untimely under Appellate Rule 4(a)(6)(A).




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               Seeking to avoid that result, Ms. Rajkovic construes the Court’s November 27,

2012 Minute Order to be legally ineffective as a final order and argues that the time for appeal

did not begin to run under Appellate Rule 4(a)(7) and Federal Rule of Civil Procedure 58(a).

The Minute Order, stated, in its entirety:

               MINUTE ORDER granting [27] Motion to Dismiss. Plaintiff has
               failed to respond to the Motion to Dismiss despite the Court’s
               Order to do so by September 18, 2012 pursuant to Fox v.
               Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988). See Dkt. [28]. The
               case is therefore dismissed without prejudice. The case is closed.
               Signed by Judge Rosemary M. Collyer on 11/27/2012.

               Ms. Rajkovic is mistaken. The November 27, 2012 Minute Order was a

dispositive order for appeal purposes under Federal Rule of Civil Procedure 58(a) and Appellate

Rule 4(a)(1) & (7). See Ingram v. ACandS, Inc., 977 F.2d 1332, 1338–39 (9th Cir. 1992) (“A

minute order may constitute a dispositive order for notice of appeal purposes if it (1) states that it

is an order; (2) is mailed to counsel [or a pro se party]; (3) is signed by the clerk who prepared it;

and (4) is entered on the docket sheet.”); see also In re Cahn, 188 B.R. 627, 630 (B.A.P. 9th Cir.

1995) (“Even a minute entry order can be a final, appealable order ‘if it fully adjudicates the

issues and clearly evidences the court’s intent that the order be the court’s final act.’” (quoting In

re Sperna, 173 B.R. 654, 657 (B.A.P. 9th Cir. 1994)). Thus, the November 27, 2012 Minute

Order was fully effective as a final, appealable order, and its entry began running of the time to

appeal.

               Because this Court lacks jurisdiction to grant Ms. Rajkovic’s untimely motion to

reopen the time for appeal, her motion will be denied. However, the Court notes that Ms.

Rajkovic’s time for filing a notice of appeal as to the Court’s denial of her Rule 60(b)(3) motion

has not yet run. That Order was entered on April 19, 2013; a notice of appeal will be timely until

June 18, 2013. See Fed. R. App. P. 4(a)(1)(B). Although the Deputy Clerk has entered docket


                                                  5
text reflecting that Ms. Rajkovic’s May 30, 2013 Notice of Appeal is “as to Order on Motion to

Dismiss, [Dkt.] 32 Order on Motion for Relief from Judgment [i.e., the April 19, 2013 Order

denying the Rule 60(b)(3) Motion],” Ms. Rajkovic’s notice of appeal refers only to the

November 27, 2012 Order, not the April 19, 2013 Order. Ms. Rajkovic must thus file a separate

notice of appeal complying with Appellate Rule 3(c) if she wishes to appeal the Court’s denial of

her Rule 60(b)(3) Motion. See Fed. R. App. P. 3(c)(1)(B) (“The notice of appeal must

. . . designate the judgment, order, or part thereof being appealed . . . .”). The Deputy Clerk will

be directed to correct the docket text.

               The Court also notes that, apart from an appeal, Ms. Rajkovic has an additional

option available if she wishes to pursue the claims she originally asserted. The Court specifically

provided in the November 27, 2012 Minute Order that the dismissal was without prejudice, and

thus, Ms. Rajkovic can file a new complaint if she wishes. The Court dismissed this case due to

Ms. Rajkovic’s repeated failure to comply with Court orders and, ultimately, her failure to

oppose the motion to dismiss, but the dismissal was without any judgment as to the merits of Ms.

Rajkovic’s claims, as the “without prejudice” dismissal indicates.

               A separate memorializing Order accompanies this Memorandum Opinion.



DATE: June 10, 2013

                                                                     /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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