Elmira Wheatley v. Edward Cohn ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1862
ELMIRA WHEATLEY; BRETT LEWIS WHEATLEY,
Plaintiffs – Appellants,
v.
EDWARD S. COHN; STEPHEN N. GOLDBERG; RICHARD E. SOLOMON;
RICHARD J. ROGERS; RANDALL J. ROLLS; FLAGSTAR BANK;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, (MERS); ST. FIN
CORP., d/b/a Star Financial, a California Corporation,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:13-cv-03850-GLR)
Submitted: February 19, 2015 Decided: March 5, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Elmira Wheatley, Brett Lewis Wheatley, Appellants Pro Se.
Michael J. McKeefery, Richard J. Rogers, COHN, GOLDBERG &
DEUTSCH, LLC, Towson, Maryland; Christine Marie Debevec,
STRADLEY RONON STEVENS & YOUNG LLP, Philadelphia, Pennsylvania;
John Alexander Nader, STRADLEY RONON STEVENS & YOUNG LLP,
Washington, D.C.; Michael Lichtenstein, Benjamin Powell Smith,
SHULMAN, ROGERS, GANDAL, PORDY & ECKER, PA, Potomac, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Elmira Wheatley and Brett Lewis Wheatley
(“Appellants”) seek to appeal the district court’s order
dismissing this action raising numerous claims related to a
foreclosure action. Appellees move to dismiss the appeal as
untimely, and the Wheatleys have replied to the motion. We
grant Appellees’ motion and dismiss the appeal for lack of
jurisdiction because the notice of appeal was not timely filed.
“[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.” Bowles v. Russell, 551
U.S. 205, 214 (2007). Generally, a party has 30 days after the
entry of the district court’s final judgment or order to notice
an appeal. See Fed. R. App. P. 4(a)(1)(A). The notice period
may be extended or reopened by the district court. See Fed. R.
App. P. 4(a)(5), (6).
The district court entered an order dismissing
granting Appellees’ motion to dismiss on May 30, 2014; so the
notice period ended on June 30, 2014. Because Appellants filed
their notice of appeal of this order on July 25, 2014, their
notice of appeal was untimely.
Additionally, the district court did not extend the
notice period and the district court could not have reopened the
notice period. First, a district court may extend the notice
period if two requirements are satisfied: (1) the party seeking
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an extension moves for the extension “no later than 30 days”
after the close of the notice period and (2) “that party shows
excusable neglect or good cause.” Fed. R. App. P.
4(a)(5)(A)(i)–(ii). Here, Appellants satisfied the first
requirement. Their motion for an extension was due on July 30,
2014; and they filed this motion on July 23, 2014. However, the
district court determined Appellants did not demonstrate
excusable neglect or good cause for an extension. Appellants
have not appealed the district court’s denial of this motion, so
we decline to review the district court’s decision.
Accordingly, the notice period was not extended.
Second, we may construe an untimely notice of appeal
as a motion to reopen the time to notice an appeal if an excuse
for the untimeliness is offered. See United States v. Akinkoye,
16 F. App’x 179 (4th Cir. 2001) (per curiam). Regardless of any
excuse offered by Appellants, the district court could not have
reopened the notice period. The notice period may only be
reopened if three conditions are satisfied: (1) the party
seeking to reopen the period did not receive notice “of the
entry of the judgment or order sought to be appealed within 21
days after entry”; (2) “the motion is filed within 180 days
after the judgment or order is entered or within 14 days after
the moving party receives notice . . . of the entry, whichever
is earlier”; and (3) “the court finds that no party would be
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prejudiced.” Fed. R. App. P. 4(a)(6)(A)–(C). It is clear that
Appellants cannot satisfy the second condition.
At the latest, Appellants received notice of the
district court’s order on June 24, 2014 -- the date on the
certificate of service accompanying their motion seeking
clarification of the order, which indicates Appellants’ receipt
of the order. So at the latest, Appellants were required to
move to reopen by July 8, 2014. Neither their motion nor their
untimely notice were filed before this deadline. Accordingly,
the district court could not have reopened the notice period.
Because Appellants failed to file a timely notice of
appeal or to obtain an extension or reopening of the appeal
period, we dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
DISMISSED
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