     Case: 09-20713 Document: 00511323829 Page: 1 Date Filed: 12/16/2010




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                           December 16, 2010

                              No. 09-20713                     Lyle W. Cayce
                            Summary Calendar                        Clerk



ICHIE CHIBUZO ONWUCHEKWE, An Individual; CHARLES C. CHIKEZIE,
An Individual; MIKE ANUNIKE, An Individual; PETER NWAOGU, An
Individual; LINUS M. UDORJI, An Individual; WORLD IGBO CONGRESS,
Formerly a Texas Corporation; WORLD IGBO CONGRESS FOUNDATION,
Formerly a Texas Corporation,

                                         Plaintiffs–Appellants
v.

J. O. S. OKEKE, An Individual; JEFF U. OHANAJA, An Individual; LUCIUS
AKUCHIE, An Individual; FESTUS C. OKERE, An Individual; JOE N. ETO, An
Individual; TOBIAS OGU, An Individual; HUMPHREY UBA, An Individual;
CHIDI ONYENEKWU, An Individual; ANTHONY EJIOFOR, An Individual;
EMMANUEL MEKOWULU, An Individual; AUGUSTINE UZODIKE, An
Individual; WORLD IGBO CONGRESS, INC., A Texas Corporation; WORLD
IGBO CONGRESS FOUNDATION, INC., A Texas Corporation; DOES 1
THROUGH 50, Inclusive; LOUIS OKONKWO, An Individual; GRACE C.
CLARK, An Individual; CHRIS EMEKA UKACHUKWU, An Individual;

                                         Defendants–Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas
                          U.S.D.C. No. 09-CV-1169


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
     Case: 09-20713 Document: 00511323829 Page: 2 Date Filed: 12/16/2010




                                       No. 09-20713

PER CURIAM:*
       This appeal arises from a trademark infringement action concerning the
trade names “World Igbo Congress” and “World Igbo Congress Foundation.”
Following the district court’s grant of Appellees’ motion to dismiss, Appellant
filed a motion to vacate under Federal Rule of Civil Procedure 60(b) based inter
alia, on fraud on the part of Appellees’ counsel and excusable neglect on the part
of their own attorney. In a two-sentence opinion, the district court denied the
60(b) motion. We AFFIRM.
       As to the fraud allegation under Rule 60(b)(3), Appellants argue that
Appellees’ attorney, Mr. Okorafor, committed perjury by signing a certificate of
service stating that he electronically sent the accompanying motion to dismiss
to opposing counsel. The alleged falsehood is that Mr. Okorafor did not send the
document himself, but instead relied on the court’s electronic filing system.
       Alternatively, Appellants seek relief under Rule 60(b)(1) on the grounds
of mistake. They maintain that the court’s email did not reach their counsel
“because there were issues which related to their counsel computer set up of
emails receipt.”     Appellants argue that these issues, which appear to have
affected only the motion to dismiss and no other pleadings filed through the
court’s system, constitute “mistake, inadvertence, surprise, or excusable neglect.”
F ED. R. C IV. P. 60(b)(1).
       On appeal, “we recognize that the decision to grant or deny relief under
Rule 60(b) lies within the sound discretion of the district court and will be
reversed only for abuse of that discretion.” Edwards v. City of Houston, 78 F.3d

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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     Case: 09-20713 Document: 00511323829 Page: 3 Date Filed: 12/16/2010




                                  No. 09-20713

983, 995 (5th Cir. 1996). Nothing in the present case suggests that the district
court abused its discretion in denying Appellants’ motion under Rule 60(b).
Mr. Okorafor’s reliance on the court’s electronic filing system is an acceptable
form of service under the local rules. S.D. T EX. R. 5.1 (“The notice of electronic
filing that is automatically generated by the Court’s electronic filing system
constitutes service of the document on those registered as filing users of the
system.”). Moreover, the district court did not abuse its discretion in doubting
that Appellants’ counsel never received such an email. Appellants had no
difficulty receiving any other communications sent via the court’s system. Even
if the district court credited the claim that email settings deflected the notice
away from counsel’s inbox, it was not an abuse of discretion to conclude that
sending court communications to the spam folder is inexcusable neglect. On
these facts, we cannot find an abuse of discretion.
      Appellants also complain about comments made by the district court
following its dismissal order. They argue that, although the court did not state
its reasons at the time of dismissal, it revealed inappropriate justifications
during a telephone conference on August 20, 2009. This argument might be
appropriate in an appeal from the order dismissing the case.          Appellants,
however, failed to file a timely notice of appeal from that order. The district
court dismissed Appellants’ lawsuit for lack of standing on July 31, 2009. From
that date, Appellants had 30 days in which to file a notice of appeal. F ED. R.
A PP. P. 4(a)(1).   They did no such thing.    This Court therefore declines to
consider arguments relating to the merits of the district court’s order dismissing
the case.
                                                                    AFFIRMED.


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