Valuepest.com of Charlotte, Inc. v. Bayer Corporation , 356 F. App'x 658 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1663
VALUEPEST.COM OF CHARLOTTE, INCORPORATED, f/k/a Budget Pest
Prevention, Incorporated; NATIONAL PEST CONTROL,
INCORPORATED; PEST PROS, INCORPORATED,
Plaintiffs - Appellants,
v.
BAYER CORPORATION; BAYER CROPSCIENCE LP; BASF CORPORATION,
Defendants – Appellees,
and
ORKIN; THE TERMINIX INTERNATIONAL COMPANY LIMITED
PARTNERSHIP,
Defendants.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cv-00090-LHT)
Submitted: December 2, 2009 Decided: December 16, 2009
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael David Bland, WEAVER, BENNETT & BLAND, PA, Matthews,
North Carolina; Forrest A. Ferrell, Warren A. Hutton, SIGMON,
CLARK, MACKIE, HUTTON, HANVEY & FERRELL, PA, Hickory, North
Carolina; David Barry, BARRY & ASSOCIATES, San Francisco,
California, for Appellants. Douglas W. Ey, Jr., Catherine E.
Thompson, Jason D. Evans, MCGUIREWOODS, LLP, Charlotte, North
Carolina; Glen D. Nager, Lawrence D. Rosenberg, JONES DAY,
Washington, D.C.; Larry S. McDevitt, VAN WINKLE, BUCK, WALL,
STARNES AND DAVIS, P.A., Asheville, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Valuepest.com of Charlotte, Incorporated, National
Pest Control, Incorporated and Pest Pros, Incorporated
(collectively “Valuepest.com”) appeal the district court’s order
denying their amended motion to correct the judgment under Fed.
R. Civ. P. 60(a) and for relief from judgment pursuant to Fed.
R. Civ. P. 60(b)(6). The court denied the motion because
Valuepest.com abandoned the issue raised in the motion by
failing to raise it on appeal and because granting the requested
relief would be an improper deviation from the mandate rule. We
affirm.
In the opening brief, Valuepest.com argues the merits
of the Rule 60 motion. However, it fails to discuss the mandate
rule or whether the court correctly found it had abandoned the
issue by failing to raise it on appeal. It is not until the
reply brief that Valuepest.com raises either of these issues.
In A Helping Hand, LLC v. Baltimore County, MD, 515 F.3d 356,
369 (4th Cir. 2008), this court stated that “‘[i]t is a well
settled rule that contentions not raised in the argument section
of the opening brief are abandoned.’” (quoting United States v.
Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)). This court
does not normally consider arguments raised for the first time
in a reply brief. See SEC v. Pirate Investor, 580 F.3d 233, 255
n.23 (4th Cir. 2009).
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Because Valuepest.com failed to discuss the merits of
the district court’s reasons for denying the Rule 60 motion in
the argument section of the opening brief, we consider any
challenge to be abandoned. Accordingly, we affirm the district
court’s order. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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