Provident Life & Accident Insurance v. Clarke , 284 F. App'x 54 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1053
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY,
Plaintiff - Appellee,
v.
KEVIN M. CLARKE,
Defendant - Appellant.
No. 08-1400
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY,
Plaintiff - Appellee,
v.
KEVIN M. CLARKE,
Defendant - Appellant.
No. 08-1401
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY,
Plaintiff - Appellee,
v.
KEVIN M. CLARKE,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cv-00792-JCC-BRP)
Submitted: June 26, 2008 Decided: June 30, 2008
Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
No. 08-1053 dismissed; Nos. 08-1400 and 08-1401 affirmed by
unpublished per curiam opinion.
Kevin M. Clarke, Appellant Pro Se. Brenna Kathleen Newman, Edward
Hutton Starr, TROUTMAN & SANDERS, LLP, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
These consolidated appeals arise out of the same district
court civil action, in which Provident Life and Accident Insurance
Company (“Provident”) alleged Kevin Clarke perpetrated insurance
fraud. The parties signed a settlement agreement, the validity of
which Clarke thereafter disputed in district court.
First, in Case No. 08-1053, Kevin Clarke seeks to appeal
the district court’s order granting Provident’s motion to enforce
the settlement agreement and denying Clarke’s motion to nullify the
settlement agreement. Parties are accorded thirty 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). This appeal
period is “mandatory and jurisdictional.” Browder v. Dir., Dep’t
of Corr., 434 U.S. 257, 264 (1978) (quoting United States v.
Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order was entered on the docket on
November 2, 2007, and Clarke’s notice of appeal and motion for an
extension of time to appeal were filed on December 19, 2007.
Clarke’s notice of appeal was untimely filed, and the district
court’s finding that Clarke failed to demonstrate excusable neglect
necessary to extend the appeal period was not an abuse of
discretion. See Thompson v. E.I. DuPont de Nemours & Co., Inc., 76
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F.3d 530, 533 (4th Cir. 1996). Accordingly, we dismiss Clarke’s
appeal in No. 08-1053.
Next, in Case No. 08-1400, Clarke seeks to appeal the
district court’s order denying his motion to alter or amend
judgment. The motion was not timely under Fed. R. Civ. P. 59(e),
and relief was not warranted under Fed. R. Civ. P. 60(b) because
the motion simply sought reconsideration of the issues already
decided by the district court. See CNF Constructors, Inc. v.
Donohoe Constr. Co., 57 F.3d 395, 401. (4th Cir. 1995).
Accordingly, we affirm the district court’s order in No. 08-1400.*
Finally, in Case No. 08-1401, Clarke appeals the district
court’s order denying his motion for appointment of counsel.
Finding no abuse of discretion, see Miller v. Simmons, 814 F.2d
962, 964-65 (4th Cir. 1987), we affirm for the reasons stated by
the district court. See Provident Life and Accident Ins. Co. v.
Clarke, No. 1:06-cv-00792-JCC) (E.D. Va. Mar. 19, 2008).
*
To the extent that Clarke seeks to appeal the denial of his
motion for an extension of time to file a notice of appeal, which
was submitted in the same document as his motion to alter and
amend, we likewise dismiss the appeal for the reasons stated above
in our dismissal of Case No. 08-1053.
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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.
No. 08-1053 DISMISSED
No. 08-1400 AFFIRMED
No. 08-1401 AFFIRMED
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