Expeditions Unlimited Aquatic Enter., Inc. v. Smithsonian Inst., 500 F.2d 808 (D.C. Cir. 1974). · Go Syfert
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Expeditions Unlimited Aquatic Enter., Inc. v. Smithsonian Inst., 500 F.2d 808 (D.C. Cir. 1974). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases, last quoted 2011 · …when neither party had actual notice of the entry of judgment, when the winning party is not prejudiced by the appeal, and when the losing party moves to vacate the judgment within a reasonable time after he learns of its entry. at p. 810 ✓
116 citation events (22 in the last 25 years) across 28 distinct courts.
Negative lean: 5th  ·  Positive lean: 2nd, DC, 3rd
Strongest positive: Old Republic Insurance Co. v. Jason D. and Andrea O'Neal (wva, 2016-06-10) · Strongest negative: Abbott v. John Hancock Mutual Life Insurance (massappct, 1984-09-07)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
cited Cited "but see" Abbott v. John Hancock Mutual Life Insurance
Mass. App. Ct. · 1984 · signal: but see · confidence high
But see Expeditions Unlimited Aquatic Enterprises v. Smithsonian Inst., 500 F.2d 808, 809-810 (D.C.
cited Cited "but see" United States v. Alvin O'Neil and Thurston O'neil, United States of America v. Charles Medlin, B.A. McFarland and B.E. McFarland United States of America v. Doko Farms, a Partnership, James Porter, Allison v. Barnett, L.D. Smith and William T. Curry, United States of America v. Paul Morgan, P & B Morgan Trust, Morgan Farms, Inc. And Wayne Greaves
5th Cir. · 1983 · signal: but see · confidence high
But see Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808 (D.C.Cir.1974).
cited Cited "but see" United States v. O'Neil
5th Cir. · 1983 · signal: but see · confidence high
But see Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808 (D.C.Cir.1974).
discussed Cited as authority (rule) Old Republic Insurance Co. v. Jason D. and Andrea O'Neal (2×)
W. Va. · 2016 · confidence medium
Co., 569 F.2d 1036, 1038 (8th Cir.1978) (determining that three inquiries about status of the ease and reliance on clerk’s office statement that counsel would be notified sufficient, for relief); Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.Cir.1974) (holding that rule 60(b) permits district court to vacate and reenter judgment where neither party received timely notice and winning party was not prejudiced.).
cited Cited as authority (rule) Oscar Salazar v. DC
D.C. Cir. · 2011 · confidence medium
In Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.
discussed Cited as authority (rule) Salazar Ex Rel. Salazar v. District of Columbia
D.C. Cir. · 2011 · confidence medium
In Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.Cir.1974), for instance, the court stated that a district court may vacate and reenter a judgment under Rule 60(b)(6) to allow a timely appeal “when neither party had actual notice of the entry of judgment, when the winning party is not prejudiced by the appeal, and when the losing party moves to vacate the judgment within a reasonable time after he learns of its entry.” This holding was reaffirmed in In re Sealed Case (Bowles), 624 F.3d 482, 487-88 (D.C.Cir.2010).
discussed Cited as authority (rule) McMillian v. District of Columbia
D.D.C. · 2006 · confidence medium
Steuart, Inc. v. Matthews, 329 F.2d 234, 235 (D.C.Cir.1964) and Expeditions Unlimited Aquatic Enters, v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.Cir.1974); Williams v. Capital Transit Co., 215 F.2d 487 (D.C.Cir.1954); Erick Rios Bridoux v. E.
examined Cited as authority (rule) Oseguera v. Farmers Insurance Exchange (4×) also: Cited "see, e.g."
Utah Ct. App. · 2003 · confidence medium
Constr., 569 F.2d 1036, 1038-39 (8th Cir.1978) (per curiam); Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 809-10 (D.C.Cir.1974) (per curiam); Radack v. Norwegian Am.
discussed Cited as authority (rule) United States v. Brown
D. Kan. · 1998 · confidence medium
Co., 569 F.2d 1036, 1038 (8th Cir.1978); Fidelity & Deposit Co. v. USAFORM Hail Pool, Inc., 523 F.2d 744, 750-51 (5th Cir.1975), cert. denied, 425 U.S. 950 , 96 S.Ct. 1725 , 48 L.Ed.2d 194 (1976); Expeditions Unlimited Aquatic Enterprises, Inc., v. Smithsonian Institute, 500 F.2d 808, 810 (D.C.Cir.1974); Cavalliotis v. Salomon, 357 F.2d 157, 159 (2d Cir.1966).
cited Cited as authority (rule) District of Columbia v. Watkins
D.C. · 1996 · confidence medium
D.C. 140, 142, 500 F.2d 808, 810 (1974)).
discussed Cited as authority (rule) Zimmer St. Louis, Inc., Appellee/cross-Appellant v. Zimmer Company, Appellant/cross-Appellee v. Donald Beaty, Appellee/cross-Appellant
8th Cir. · 1994 · confidence medium
See, e.g., Lewis v. Alexander, 987 F.2d 392, 396-97 (6th Cir.1993); Harnish v. Manatee County, Florida, 783 F.2d 1535, 1538 (11th Cir.1986); Rodgers v. Watt, 722 F.2d 456, 461 (9th Cir.1983) (en banc); Buckeye Cellulose Corp. v. Braggs Electric Construction Co., 569 F.2d 1036, 1038 , 1038 n. 2 (8th Cir.1978) (per curiam); Fidelity and Deposit Co. v. USAFORM Hail Pool, Inc., 523 F.2d 744, 751 (5th Cir.1975), cert. denied, 425 U.S. 950 , 96 S.Ct. 1725 , 48 L.Ed.2d 194 (1976); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808, 810 (D.C.Cir.1974) (per curiam); …
discussed Cited as authority (rule) Dave Kohel Agency, Inc. v. Redshaw, Inc.
E.D. Wis. · 1993 · confidence medium
The Court notes that the exception cited by Kohel in Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808, 810 (D.C.Cir.1974) (per curiam) (judgment may be vacated to preserve appeal where neither party has actual notice of entry of judgment, the winning party is not prejudiced, and the losing party moves to vacate within a reasonable time), (Kohel Reply at 4), is applicable only to motions pursuant to Rule 60(b) (6), Fed.
discussed Cited as authority (rule) In Re Longardner & Associates, Inc., Debtor. Appeal of Landahl, Brown & Weed Associates, Inc
7th Cir. · 1988 · confidence medium
Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.Cir.1974) (court has discretion to vacate and reenter judgment to allow timely appeal when parties had no notice of entry of judgment, winning party not prejudiced by appeal and losing party acted within reasonable time after learning of entry).
cited Cited as authority (rule) Williams v. Arn
N.D. Ohio · 1987 · confidence medium
Expeditions Unlimited Acquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808, 810 (D.C.Cir.1974) (per curiam).
discussed Cited as authority (rule) Dale Hall v. Community Mental Health Center of Beaver County (2×)
3rd Cir. · 1985 · confidence medium
Hall argues that we should apply the standard established by the United States Circuit Court of Appeals for the District of Columbia, which allows a district court to vacate and reenter a judgment under Rule 60(b) “when neither party had actual notice of the entry of judgment, when the winning party is not prejudiced by the appeal, and when the losing party moves to vacate the judgment within a reasonable time after he learns of its entry.” Expeditions Unlimited Aquatic Enters., Inc., v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.Cir.1974).
cited Cited as authority (rule) Vital v. Johnson
Ariz. Ct. App. · 1980 · confidence medium
Expeditions Unlimited Aquatic Enterpris *131 es, Inc. v. Smithsonian Institute, 163 U.S.App.D.C. 140, 141 , 500 F.2d 808, 809 (1974).’ ” 569 F.2d at 1038 .
discussed Cited as authority (rule) Snider v. Gaddis (2×)
Ind. Ct. App. · 1980 · confidence medium
Aquatic Ent., Inc. v. Smithsonian Inst., 163 U.S.App.D.C. 140 , 500 F.2d 808, 809 (1974); Horace v. St.
discussed Cited as authority (rule) Johnston v. Pascoe (2×)
Idaho · 1979 · confidence medium
D.C. 140, 142, 500 F.2d 808, 810 (D.C.
discussed Cited as authority (rule) James Mizell v. The Attorney General of the State of New York and Ano. (2×)
2d Cir. · 1978 · confidence medium
Id. at 810.
cited Cited as authority (rule) The Buckeye Cellulose Corporation v. Braggs Electric Construction Co.
8th Cir. · 1978 · confidence medium
D.C. 140, 141, 500 F.2d 808, 809 (1974).
cited Cited as authority (rule) Naughton v. First National Bank of Boston
Mass. App. Ct. · 1976 · confidence medium
See Smith v. Jackson Tool & Die, Inc. 426 F.2d 5, 7-8 (5th Cir. 1970); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst. 500 F.2d 808, 809-810 (D.C.
cited Cited "see" Carvajal v. Drug Enforcement Administration
D.D.C. · 2012 · signal: see · confidence high
See Expeditions Unlimited Aquatic Enters, v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.Cir.1974).
cited Cited "see" Dickerson v. Baker
S.D.N.Y. · 1990 · signal: see · confidence high
See Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808, 810 (D.C.Cir.1974).
discussed Cited "see" International Controls Corp. v. Robert L. Vesco, and Vesco & Co., Inc. (2×)
2d Cir. · 1977 · signal: accord · confidence high
Accord, Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 163 U.S.App.D.C. 140 , 500 F.2d 808, 809-10 (1974).
discussed Cited "see, e.g." Salazar v. District of Columbia
D.D.C. · 2010 · signal: see also · confidence medium
Miller & Mary Kay Kane, Federal Practice and Procedure, § 2866 (2d ed. 2009); see also Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.Cir.1974); Evans v. Fenty, 701 F.Supp.2d 126, 157 (D.D.C.2010) (“Factors to consider include ‘the length of the delay, the explanations for the delay, the prejudice to the opposing party caused by the delay and the circumstances warranting relief.’ ”) (citations omitted).
discussed Cited "see, e.g." Salazar v. Dc
D.D.C. · 2010 · signal: see also · confidence medium
This standard must be applied to the specific facts of each case, after considering “whether the party opposing the motion has been prejudiced by the delay in seeking relief and . . . whether the moving party had some good reason for his failure to take appropriate action sooner.” 11 Charles A. Wright, et al., Federal Practice and Procedure, § 2866 (2d ed. 2009); see also Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 500 F.2d 808, 810 (D.C.
discussed Cited "see, e.g." Anderson v. Chevron Corp.
D.D.C. · 1999 · signal: see also · confidence low
See Twelve John Does, 841 F.2d at 1141 ; see also Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808 (D.C.Cir.1974); Randall v. Merrill Lynch, et al., 820 F.2d 1317 (D.C.Cir.1987).
discussed Cited "see, e.g." Twelve John Does v. District of Columbia Appeal of Edwin A. Meese, Iii, Attorney General of the United States
D.C. Cir. · 1988 · signal: see also · confidence low
See Martella v. Marine Cooks & Stewards Union, 448 F.2d 729 (9th Cir.1971); see also Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 500 F.2d 808 (D.C.Cir.1974) (relief under Rule 60(b)(6) granted where failure to appeal attributable to clerk’s failure to notify either party that summary judgment had been entered, prevailing party not prejudiced by the appeal, and motion to vacate filed promptly after learning of summary judgment).
cited Cited "see, e.g." Hanley v. Polanzak
Mass. App. Ct. · 1979 · signal: compare · confidence medium
Compare Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 500 F.2d 808, 809 (D.C.
discussed Cited "see, e.g." Robert P. Smith v. James R. Schlesinger, Secretary of Defense (2×)
D.C. Cir. · 1975 · signal: see also · confidence low
See also Expeditions Unlimited Aquatic Enterprises v. Smithsonian Institute, 163 U.S.App.D.C. 140 , 500 F.2d 808 (1974). 10 .
Retrieving the full opinion text from the archive…
EXPEDITIONS UNLIMITED AQUATIC ENTERPRISES, INC., Et Al., Appellants,
v.
SMITHSONIAN INSTITUTE Et Al.
73-1297.
Court of Appeals for the D.C. Circuit.
Jun 26, 1974.
500 F.2d 808
1974 U.S. App. LEXIS 7948
John J. Pyne, Washington, D. C., for appellants., N. Richard Janis, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellees.
Bazelon, Leventhal, Solomon, Oregon.
Cited by 68 opinions  |  Published
PER CURIAM:

Expeditions Unlimited Aquatic Enterprises, Inc., and Norman Scott (appellants) filed an action for libel against the Smithsonian Institution, its regents, and Clifford Evans (appellees) on January 8, 1971. On the same day another action between the same parties was filed. On March 12, 1971, appellees filed a motion to dismiss or in the alternative for summary judgment. On December 13, 1971, the parties filed their[*809] final briefs and the court took the motion under advisement.

On January 17, 1972, the court entered summary judgment for appellees. Neither the appellants nor the appellees learned of the entry of judgment. While engaged in discovery in the companion case, counsel for the parties periodically discussed whether there had been a decision on the motion in this case. On November 20, 1972, in a conversation with the trial judge’s clerk, counsel for appellants first learned that the order granting summary judgment in favor of appellees had been entered more than ten months earlier.

On December 4, 1972, appellants filed a motion to vacate and re-enter the summary judgment in order to preserve their right to appeal. The appellees did not oppose the motion. Nevertheless, the court denied it without opinion on December 19, 1972. Appellants filed a timely appeal.

Rule 60(b)(6) of the Federal Rules of Civil Procedure allows a district court to relieve a party from a final judgment for “any . . . reason justifying relief from the operation of the judgment.” This section “vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615, 69 S.Ct. 384, 398, 93 L.Ed. 266 (1949).

Here none of the parties knew of the judgment until ten months after it had been entered. The clerk did not notify the parties of the entry of judgment as required under Rule 77(d) of the Federal Rules of Civil Procedure, nor did the trial judge follow the usual practice of sending the parties copies of the opinion or order granting summary judgment. The motion to vacate and re-enter the judgment was filed only two weeks after appellants learned that the judgment had been entered.

We recognize that Rule 77(d) provides that the failure of the clerk to notify a party of the entry of judgment does not extend the time within which the party may appeal. This rule is intended to preserve the finality of judgments. If the parties do not know of the entry of judgment, the winning party cannot rely on the judgment and the losing party cannot make a “free, calculated, deliberate” choice not to appeal. Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207 (1950). In these circumstances the purposes behind Rule 77(d) would not be served by denying the losing party the privilege of appealing and, in our view, justice demands that the losing party be given that opportunity.

Although several cases in this circuit have held that a motion to vacate and re-enter a judgment under Rule 60(b) cannot be used to extend the time for appeal, the facts in those cases are distinguishable. In Lord v. Helmandollar, 121 U.S.App.D.C. 168, 348 F.2d 780 (1965), cert. denied, 383 U.S. 928, 86 S.Ct. 929, 15 L.Ed.2d 847 (1966), local counsel received notice of the entry of judgment but out-of-state counsel did not. The negligence of local counsel and not the failure of the clerk or the court resulted in the failure to timely appeal. In Hodgson v. United Mine Workers, 153 U.S.App.D.C. 407, 413, 414, 473 F.2d 118, 124, 125 (1972), appellant moved to vacate the judgment under Rule 60(b) even though he could have sought a thirty-day extension of time to appeal. Fed.R.App.P. 4(a). In each case counsel knew of the entry of judgment in time to perfect an appeal under the Rules. [1]

[*810] We believe that a trial court may vacate and re-enter a judgment under Rule 60(b) to allow a timely appeal when neither party had actual notice of the entry of judgment, when the winning party is not prejudiced by the appeal, and when the losing party moves to vacate the judgment within a reasonable time after he learns of its entry. Smith v. Jackson Tool & Die, Inc., 426 F.2d 5 (5th Cir. 1970); 6A Moore’s Federal Practice ¶ 60.03[9] (2nd ed. 1971). A reasonable time might be judged by the thirty-day period in which a party must file a notice of appeal under Rule 4(a) of the Federal Rules of Appellate Procedure.

The order of the district court denying appellants’ motion to vacate is reversed.

1

. In Weedon v. Garlen, 136 U.S.App.D.C. 1, 419 F.2d 303 (1969), appellant moved on September 12, 1967, to vacate a default judgment entered seven years earlier. This motion was denied on November 17, 1967, but none of the parties received notice of the order denying the motion. On January 19, 1968, appellant learned of the order. He filed a motion to vacate on January 24. The motion was denied on February 13. On March 18, he filed a notice of appeal from the order of February 13. He did not seek a thirty-day extension of time within which to appeal. Fed.R.Civ.P. 73(a) (1968) ; see Fed.R.App.P. 4(a). Since the notice of appeal was filed more than thirty days after[*810] the entry of the order from which the appeal was taken, this court did not have jurisdiction over the appeal. Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952). The comments on the use of Rule 60(b) to preserve the right to appeal are therefore dicta.