Hale v. Belton Assoc Inc

Filing 920090109

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-1974

MICHAEL J. HALE, d/b/a Data Base Technologies, Plaintiff - Appellant, v. BELTON ASSOCIATES, INCORPORATED, Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:06-cv-00099-GBL)

Submitted:

December 17, 2008

Decided:

January 9, 2009

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John P. Forest, II, STAHL, FOREST & ZELLOE, P.C., Fairfax, Virginia, for Appellant. Aleksander Lamvol, SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael Hale appeals the district court's order

denying relief on his motion filed pursuant to Fed. R. Civ. P. 60(a), (b). Finding no abuse of discretion, we affirm.

Final judgment in this breach of contract case was entered on July 26, 2006. Hale did not appeal. He filed his In the

Rule 60 motion on July 23, 2007--almost one year later.

motion, Hale contended that the district court had failed to rule on his claim that he was not given reasonable notice prior to termination of an employment contract. Hale's motion, the district court inquired At the hearing on why Hale had not

appealed following entry of final judgment. replied, "[W]e honestly just lost track of that." Because the claimed error was not

Hale's attorney

of

the

sort

contemplated by Rule 60(a), see In re: Walter, 282 F.3d 434, 440-41 (6th Cir. 2002), Hale's motion more appropriately falls under Rule 60(b). To support a motion under Rule 60(b), a

movant must show "timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional

circumstances."

Dowell v. State Farm Fire & Cas. Auto. Ins.

Co., 993 F.2d 46, 48 (4th Cir. 1993) (internal quotation marks omitted). We review the denial of a Rule 60(b) motion for abuse of discretion. MLC Auto. v. Town of S. Pines, 532 F.3d 269, 277 2

(4th Cir. 2008).

We do "not review the merits of the underlying

order, [but rather] only review the denial of the motion with respect to the grounds set forth in Rule 60(b)." Id. It is

well established that "a Rule 60(b) motion seeking relief from a final judgment is not 993 to a substitute at is 48. the for a timely if of a and Rule proper 60(b)

appeal." movant's

Dowell, failure

F.2d appeal

Thus, result

"inexcusable

negligence" or "a considered choice" not to appeal, relief under the Rule is unavailable. U.S. 193, 198, 202 (1950). Here, there was no abuse of discretion. Under the See Ackermann v. United States, 340

cited authorities, Hale's negligent failure to note a timely appeal from the district court's final order precluded relief under Rule 60(b). This case simply does not present exceptional

circumstances that would entitle Hale to relief. Accordingly, we affirm. The request for sanctions

under Fed. R. App. P. 38 is denied.

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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