Russ Ex Rel. Estate of Russ v. Hewett ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERNIE DAVID RUSS, Personally and 
on behalf of the Estate of L. Bailey
Russ (deceased), and Edna Russ
(deceased),
Plaintiff-Appellant,
v.
JOHN B. HEWETT; TED C. RIVENBARK,
JR.; LARRY W. GODWIN; ROBERT C.
COCHRAN; JERRY BATTEN; CHARLES
M. HUSKEY; RALPH E. MILLER;
JIMMY JOHNSON; JAMES C. KEARNEY;
LA VERNE AUSMAN; JIM ROOT;
PATRICK V. DENTON; ANN STONE  No. 02-2270
NELMS; LOU ANN KLING; UNKNOWN
BOARD, personally and where
applicable, and corporately; ROBERT
E. WARD; IVAN V. BENNETT; ELON
KING; ROBERT E. SMITH; JOHN KOPP;
HULAN E. GRISSETT; ELWOOD
FULFORD; WENDEL J. SMITH; WAYNE
GRISSETT,
Defendants-Appellees,
and
RICHARD M. STERNS; WARREN KNOX,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CA-01-175-7-F)
2 RUSS v. HEWETT
Submitted: June 23, 2003
Decided: July 10, 2003
Before WILKINSON and NIEMEYER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Seth A. Neyhart, EVERETT & EVERETT, Durham, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Paul Martin Newby, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ernie David Russ seeks to appeal the district court’s order substi-
tuting the United States for the individually named federal defendants
in his complaint and dismissing all claims pursuant to Fed. R. Civ. P.
12(b)(6). He also appeals the district court’s order denying reconsid-
eration of that order.
Initially, the Government asserts we lack jurisdiction to review the
district court’s June 12, 2002, dismissal order because the notice of
RUSS v. HEWETT 3
appeal was untimely as to that order and because Russ’s motion for
reconsideration did not toll the deadline for filing a notice of appeal
because the motion for reconsideration was untimely. A motion to
alter or amend judgment under Rule 59(e) "shall be filed no later than
10 days after entry of the judgment." The district court entered its
order dismissing the amended complaint on Wednesday, June 12,
2002. In accordance with Rule 6(a), Russ had until Wednesday, June
26, 2002, to file a Rule 59(e) motion. Russ filed his motion for recon-
sideration on Friday, June 28, 2002. Russ asserts he should have been
allowed an additional three days pursuant to Fed. R. Civ. P. 6(e)
because the notice of judgment was mailed to him. We reject Russ’s
argument because Rule 59(e) provides that the ten-day time period
runs from the entry of the judgment, rather than from the service of
notice of the judgment. See FHC Equities, L.L.C. v. MBL Life Assur-
ance Corp., 188 F.3d 678, 681-82 (6th Cir. 1999). Thus, the motion
for reconsideration did not toll the period for filing an appeal of the
underlying judgment. Accordingly, the notice of appeal was not
timely as to the June 12 order, and we dismiss the appeal as to that
order.
Russ’s appeal is timely as to the district court’s denial of his subse-
quent motion for reconsideration, which is essentially a Fed. R. Civ.
P. 60(b) motion. We review the denial of a Rule 60(b) motion for
abuse of discretion. See NOW v. Operation Rescue, 47 F.3d 667, 669
(4th Cir. 1995). We have reviewed the record and conclude the dis-
trict court’s denial of Russ’s motion for reconsideration did not con-
stitute an abuse of discretion. Accordingly, we affirm the district
court’s denial of Russ’s motion for reconsideration.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART