Xiaokui Ma v. Luqun Liu , 707 F. App'x 770 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1000
LUQUN LIU,
Plaintiff - Appellee,
v.
XIAOKUI MA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. James C. Cacheris, Senior District Judge. (1:15-cv-01026-JCC-TCB)
Submitted: November 30, 2017 Decided: December 19, 2017
Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Geoffrey C. Mason, Evan R. Smith, COGENT LAW GROUP, LLP, Washington, D.C.,
for Appellant. John F. Innelli, JOHN F. INNELLI, LLC, Philadelphia, Pennsylvania, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2016, a jury found Xiaokui Ma liable to Luqun Liu for fraud and awarded Liu
$20,000 in compensatory damages and $160,000 in punitive damages. Judgment was
entered on June 13, 2016. Four weeks later, on July 11, Ma moved under Fed. R. Civ. P.
50(b) for a judgment setting aside the punitive damages award. In an August 11 order,
the district court, pursuant to Eastern District of Virginia Local Civil Rule 7(E), deemed
the Rule 50(b) motion withdrawn for failure to notice a hearing within 30 days after the
motion’s filing. A week later, on August 18, Ma sought reconsideration of this order
under Rule 60(b). The district court denied Ma’s Rule 60(b) motion on December 14,
and Ma noted an appeal on December 20 from the August 11 order, the December 14
order, and the portion of the June 13 judgment awarding punitive damages. For the
reasons that follow, we dismiss in part and affirm in part.
Parties are accorded 30 days after the entry of the district court’s final judgment or
order to note an appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the
appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R.
App. P. 4(a)(6). “[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).
Assuming, without deciding, that Ma’s withdrawn Rule 50(b) motion tolled the
time to file an appeal, see Fed. R. App. P. 4(a)(4)(A)(i), Ma’s notice of appeal regarding
the June 13 judgment was due no later than 30 days after the district court’s August 11
order. Because Ma did not note an appeal until four months later, we lack jurisdiction to
consider the June 13 judgment.
2
We review for abuse of discretion the denial of a Rule 60(b) motion. Aikens v.
Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en banc). Ma does not dispute that she failed
to notice a hearing for her Rule 50(b) motion, but asserts that she mistakenly believed her
Rule 50(b) motion would be heard with her separately filed Rule 59(a) motion—for
which argument had already been scheduled—and that the district court compounded her
confusion by alluding in a scheduling order to an upcoming oral argument on multiple
motions. 1 However, Ma failed to present this contention to the district court, instead
solely attributing her mistake to a filing by Liu. 2 Accordingly, Ma has not preserved this
argument for appellate review. See In re Under Seal, 749 F.3d 276, 287 (4th Cir. 2014). 3
Given Ma’s lack of diligence in abiding by the district court’s local rules, we further
reject her claim that relief from the district court’s order was warranted on the basis of
excusable neglect or extraordinary circumstances. We thus find no abuse of discretion in
the district court’s denial of Ma’s Rule 60(b) motion.
Accordingly, we dismiss the appeal from the June 13 judgment for lack of
jurisdiction, and affirm the district court’s August 11 and December 14 orders. We
1
Ma later voluntarily withdrew her Rule 59(a) motion, thus canceling the
scheduled hearing.
2
In a motion for an extension of time to respond to Ma’s motions, Liu noted that
the Rule 50(b) motion had not been scheduled for oral argument, and that she presumed it
would be heard together with the Rule 59(a) motion.
3
In any event, Ma was actually notified on the final day of the 30-day period that
no hearing was scheduled, yet failed to request or waive oral argument in compliance
with the district court’s local rule.
3
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 IN PART;
AFFIRMED IN PART
4