                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2166
                                   ___________

American Boat Company, Inc.;            *
Underwriters Insurance Company;         *
Navigators Insurance Company,           *
                                        *
            Plaintiffs-Appellants,      *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Unknown Sunken Barge; Unknown           *
Owner of Unknown Sunken Barge;          *
Unknown Tower of Unknown Sunken *
Barge,                                  *
                                        *
            Defendants,                 *
                                        *
United States of America,               *
                                        *
            Defendant-Appellee.         *
                                   ___________

                             Submitted: February 11, 2009
                                Filed: June 4, 2009
                                 ___________

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
                             ___________

SHEPHERD, Circuit Judge.

      The appellants (“American Boat”) brought this negligence action against the
United States for failing to maintain the navigable channel of the lower Mississippi
River. After the district court granted summary judgment for the United States,
American Boat filed a Motion to Amend Judgment, or in the Alternative for
Reconsideration. The district court denied this motion, and the time for appeal
expired without any action by American Boat. Four months later, American Boat
filed a Motion to Reopen the Time to File an Appeal, claiming it did not receive notice
of the denial of its Motion to Amend. The district court denied the Motion to Reopen,
finding that American Boat received timely electronic notice. American Boat
appealed, and we reversed the district court’s judgment and remanded for an
evidentiary hearing to determine whether American Boat should be permitted to
reopen the time to file an appeal.1 After conducting an evidentiary hearing, the district
court2 again denied American Boat’s Motion to Reopen. We now affirm.

                                           I.

       American Boat operates towboats that push barges on the Mississippi River.
On February 15, 2000, one of its towboats collided with a submerged wreck.
American Boat brought a claim against the United States for negligently failing to
maintain the navigable channel of the lower Mississippi River. During the
proceedings, the United States District Court for the Eastern District of Missouri
began using a case management and electronic case filing system (“CM/ECF”).
Parties that register with the district court’s CM/ECF system receive notice of court
filings via email and are not entitled to service of paper copies. American Boat’s trial
counsel, from Greenville, Mississippi, did not register with CM/ECF. However,
American Boat’s local counsel, Donald Dickerson of Cape Girardeau, Missouri, and
his secretary, Heather Greable, did register with CM/ECF. Two attorneys for the
United States also registered to receive electronic notice.


      1
       For our previous opinion in this case, see 418 F.3d 910 (8th Cir. 2005).
      2
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

                                          -2-
      On September 2, 2003, the district court granted summary judgment for the
United States, holding that the discretionary function exception to the Federal Tort
Claims Act exempted the United States from liability. See 28 U.S.C. § 2680(a).
American Boat filed a Motion to Amend Judgment, or in the Alternative for
Reconsideration. On November 5, 2003, the district court issued an order (“Document
60”) denying the motion. That afternoon, CM/ECF automatically generated a Notice
of Electronic Filing for Document 60 (“the Notice”), which it emailed to Dickerson,
Greable, and the two registered government attorneys.

       American Boat claims that it did not receive the Notice via email and did not
learn of the district court’s order until March 4, 2004, when American Boat’s trial
counsel discovered Document 60 through the Public Access to Court Electronic
Records website (“PACER”). On March 9, 2004, American Boat filed a Motion to
Reopen the Time to File an Appeal. On July 1, 2004, the district court denied the
motion, finding that American Boat had received timely electronic notice and,
therefore, did not meet the requirements of Federal Rule of Appellate Procedure
4(a)(6).3 American Boat appealed. On August 16, 2005, this court held that a
presumption of delivery and receipt should apply to emails sent via the court’s
CM/ECF system. See Am. Boat Co., Inc. v. Unknown Sunken Barge, 418 F.3d 910,

      3
       Federal Rule of Appellate Procedure 4(a)(6) reads: “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 7 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.”

                                         -3-
914 (8th Cir. 2005). However, we found that American Boat made a sufficient
showing to warrant an evidentiary hearing on the issue of whether it adequately
rebutted this presumption. Id.

      At the evidentiary hearing, Greable testified that she was responsible for
checking both Dickerson’s and her email accounts. She testified that she always
printed paper copies of Dickerson’s emails because he did not have his own computer.
Greable also testified that, in addition to using the computer at her desk, she
sometimes used the computer at the office’s front desk. Dickerson testified that he
was on vacation in November 2003 when the district court’s CM/ECF system
transmitted the Notice. He further testified that his law office did not routinely
monitor its cases via PACER.

      Both parties presented testimony from computer experts who had worked
cooperatively in examining the hard drive on Greable’s office computer.4 The
government’s expert witness, Trey Blalock, testified with “99.9 percent” certainty that
the Notice left the CM/ECF system destined for the correct email addresses for
Dickerson and Greable—ddickerson@clas.net and hgreable@clas.net—and was
successfully received by the server for the Dickerson law firm’s Internet service
provider (“Clas.net”). However, Blalock also testified that Greable’s hard drive
contained no record of the Notice. American Boat’s expert, Dr. Johnette Hassell,
agreed with these conclusions.

      Blalock explained that emails received by Clas.net are stored on the server; they
are not automatically sent to the end user’s computer. Instead, the user must
download emails from the Clas.net server to her own computer by using an email
software program such as Microsoft Outlook. Once the end user has accessed an
email on her own computer, the default setting on most email software programs,


      4
       The front-desk computer Greable sometimes used was never examined.

                                         -4-
including the program installed on Dickerson law firm computers, is to delete the
email from the server.5 Unless the user changes this default setting, the email exists
only on the user’s hard drive and nowhere else once it has been accessed from the
server. Therefore, Blalock testified, if Greable checked Dickerson’s and her email
accounts from a different computer, the emails would never reach her own office
computer.

       According to Blalock, CM/ECF transmitted the Notice at 4:29 p.m. on
November 5, 2003, over ten minutes after the last human activity occurred on
Greable’s computer that day. The first human activity on Greable’s computer the
following morning occurred when the user opened an Internet site that contained
instructions on how to POP email from another computer. Based on these findings
and Greable’s testimony that she sometimes used the computer at the office’s front
desk, Blalock testified that he was “95 percent” certain that Greable received the
Notice when she checked Dickerson’s and her email accounts on a different computer,
thereby deleting the Notice from the Clas.net server and preventing the Notice from
reaching Greable’s office computer.

        In response to Blalock’s expert opinion, Hassell offered general testimony
about other reasons an email might not reach an end user’s computer, such as spam
filters or CM/ECF glitches. However, Hassell did not offer an opinion as to why, in
this particular case, the Notice failed to reach Greable’s computer. Blalock and
Hassell both confirmed that Greable had successfully received at least 13 other
Notices of Electronic Filing from the district court’s CM/ECF system in November
2003. The district court’s CM/ECF administrator, Jeff Johnson, testified that the
system had never experienced a glitch. Johnson also testified that, in this case, the
court did not receive a “bounce-back” message from Clas.net, which the court would

      5
        This process is known as “POPing” an email from the server. “POP” stands
for Post Office Protocol, a protocol used to pull mail from one server to another server
or to a desktop email program such as Microsoft Outlook.

                                          -5-
have received had the Notice not successfully reached the Clas.net server due to a
spam filter. Johnson concluded with “100 percent” confidence that the Notice was
received by Clas.net. The United States also introduced evidence showing that both
government attorneys who were registered with CM/ECF successfully received the
Notice for Document 60.

      After the evidentiary hearing, the district court found that American Boat
received the Notice and, therefore, denied its Motion to Reopen:

      I find that the electronic notifications sent to ddickerson@clas.net and
      hgreable@clas.net were delivered to the ISP for the Dickerson law firm.
      Once the electronic notifications reached the ISP, they were available to
      local counsel for American Boat, in the same way that a letter that has
      reached a post office box becomes available to the owner of that box.

      Donald Dickerson and Heather Greable have denied receipt of the
      electronic notifications for Document 60. It is Plaintiff’s burden to
      overcome the presumption of receipt, and mere denial of receipt is not
      sufficient to rebut the presumption. . . .

      Even if the Notice of Electronic Filing for Document 60 could not be
      found on a hard drive of one computer used by the law firm, this does
      not prove that the Notice of Electronic Filing did not reach the law firm’s
      ISP, and it does not prove that the Notice of Electronic Filing was not
      available to Plaintiff’s local counsel on or about November 5, 2003,
      regardless of which computer may have been used to access emails at
      that time. . . .

      Plaintiff offers no explanation for what happened to the Notice after it
      reached Clas.net. I am therefore left with the explanation of Mr.
      Blalock, who testified that the most likely explanation was that Ms.
      Greable opened the email on a computer other than the one at her desk.
      The email was therefore deleted from Clas.net and when Ms. Greable
      returned to her own computer at her desk, she was unable to retrieve the
      email containing the Notice of Electronic Filing for Document 60.

                                         -6-
      As a result, I find that Plaintiffs have failed to satisfy the second
      requirement6 of Fed. R. App. P. 4(a)(6) because I find they have failed
      to rebut the presumption of delivery and receipt of the Notice of
      Electronic Filing for Document 60.

Am. Boat Co. v. Unknown Sunken Barge, No. 1:01CV00021, 2008 WL 1821500, at
*10-11 (E.D. Mo. Apr. 22, 2008) (unpublished). American Boat brings this appeal.

                                           II.

       “We review the district court’s denial of American Boat’s Motion to Reopen
for an abuse of discretion.” Am. Boat Co., 418 F.3d at 913. “We review the district
court’s factual determination that American Boat received notice for clear error.” Id.
“Under clear error review, we may reverse only if we have a definite and firm
conviction that the [d]istrict [c]ourt was mistaken.” United States v. Black Bear, 542
F.3d 249, 252 (8th Cir. 2008) (quotation omitted).

        In civil cases, like the present case, “[w]hen the United States or its officer or
agency is a party, the notice of appeal may be filed by any party within 60 days after
the judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(B). Once
this time limit has expired, the district court may reopen the time to file an appeal only
if, inter alia, “the court finds that the moving party did not receive notice . . . of the
entry of the judgment or order sought to be appealed within 21 days after entry . . . .”




      6
       The district court cited an outdated version of Rule 4 of the Federal Rules of
Appellate Procedure. In 2005, former subdivision (a)(6)(B) was redesignated as
subdivision (a)(6)(A), and vice versa. See Fed. R. App. P. 4 advisory committee’s
note. Therefore, the court’s conclusion that American Boat failed to satisfy the
“second requirement” of Rule 4(a)(6)—subdivision (B)—actually refers to the first
requirement in the current version of the rules—subdivision (A).

                                           -7-
Fed. R. App. P. 4(a)(6)(A).7 The district court found that American Boat received the
Notice for Document 60 via email on or about November 5, 2003, which is the same
day the court entered the order American Boat sought to appeal. In reaching this
factual determination, the district court was permitted to apply a presumption of
delivery and receipt of emails sent by the court’s CM/ECF system. See Am. Boat Co.,
418 F.3d at 914 (citing Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000) (fact-
finder may infer that information sent via email was received, provided that the
particular message was properly dispatched)).

       American Boat disputes the district court’s factual finding, emphasizing the fact
that Greable’s computer contained no record of the notice and contending that the
Notice might not have reached the Dickerson law firm due to a spam filter or CM/ECF
glitch.8 Although the Notice did not reach Greable’s computer, that fact does not
support American Boat’s assertion of clear error because the district court found that
Greable accessed the Notice from a different computer. Therefore, any record of the
Notice would be on the other computer’s hard drive. Neither party explains why it


      7
        Both parties conceded, and the district court agreed, that American Boat
satisfied the time and prejudice requirements in Rule 4(a)(6)(B) and (a)(6)(C).
      8
        American Boat also complains that the court did not send paper copies of
Document 60 to its trial counsel, who were not registered with the court’s CM/ECF
system. This fact has no bearing on whether American Boat’s local counsel, Donald
Dickerson, successfully received electronic notice and, therefore, is not relevant to
whether the district court’s factual finding was clearly erroneous. Furthermore, the
Administrative Procedures for the district court’s CM/ECF system that were in effect
in November 2003 provide that “[a] party who is not a registered user is entitled to
service of a paper copy of any electronically filed documents.” (Appellee’s
Supplemental App. 179 (emphasis added).) A “party” is defined as “[o]ne by or
against whom a lawsuit is brought.” Black’s Law Dictionary 1154 (8th ed. 2004).
American Boat is a “party” to this lawsuit; its individual attorneys are not. Because
Dickerson was registered with CM/ECF, American Boat’s trial counsel were not
entitled to service of a paper copy of Document 60.

                                          -8-
examined only the computer at Greable’s desk and failed to analyze any other
computer in Dickerson’s law office. Because American Boat has the burden of
rebutting the presumption of delivery and receipt, see Am. Boat Co., 418 F.3d at 914,
it also bears the consequences of failing to examine other computers in the Dickerson
law firm.

       Further, the evidence does not support American Boat’s alternative theories
regarding what happened to the Notice after it reached Clas.net. Analysis of Greable’s
computer demonstrated that she successfully received at least 13 other electronic
notifications from the Eastern District of Missouri CM/ECF system in November
2003, and both government attorneys who registered with CM/ECF received the
Notice for Document 60. In addition, the CM/ECF system did not receive a “bounce-
back” message from the Clas.net server indicating that a spam filter blocked the
Notice, and the system did not experience any glitches.

       In sum, the government’s expert witness testified that he was “95 percent”
certain Greable received the Notice when she checked Dickerson’s and her email
accounts on a computer other than the one at her desk. American Boat did not offer
any evidence that adequately rebutted Blalock’s expert opinion. The district court
accepted Blalock’s testimony, found that American Boat received the Notice for
Document 60 via email on or about November 5, 2003, and denied American Boat’s
Motion to Reopen. After carefully reviewing the evidence and considering the
presumption of delivery and receipt of emails properly dispatched by the court’s
CM/ECF system, we simply cannot form “a definite and firm conviction that the
[d]istrict [c]ourt was mistaken.” Black Bear, 542 F.3d at 252. Because the district
court’s factual determination was not clearly erroneous, American Boat failed to
satisfy the lack-of-notice requirement in Rule 4(a)(6)(A), and the court properly
denied American Boat’s Motion to Reopen.




                                         -9-
                                  III.

Accordingly, the judgment of the district court is affirmed.
                ______________________________




                                  -10-
