Valuepest.com of Charlotte, In v. Bayer Corporation

Filing 920091216

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1663 VALUEPEST.COM OF CHARLOTTE, INCORPORATED, f/k/a Budget Pest Prevention, Incorporated; NATIONAL PEST CONTROL, INCORPORATED; PEST PROS, INCORPORATED, Plaintiffs - Appellants, v. BAYER CORPORATION; BAYER CROPSCIENCE LP; BASF CORPORATION, Defendants Appellees, and ORKIN; THE PARTNERSHIP, TERMINIX INTERNATIONAL COMPANY LIMITED Defendants. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:05-cv-00090-LHT) Submitted: December 2, 2009 Decided: December 16, 2009 Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael David Bland, WEAVER, BENNETT & BLAND, PA, Matthews, North Carolina; Forrest A. Ferrell, Warren A. Hutton, SIGMON, CLARK, MACKIE, HUTTON, HANVEY & FERRELL, PA, Hickory, North Carolina; David Barry, BARRY & ASSOCIATES, San Francisco, California, for Appellants. Douglas W. Ey, Jr., Catherine E. Thompson, Jason D. Evans, MCGUIREWOODS, LLP, Charlotte, North Carolina; Glen D. Nager, Lawrence D. Rosenberg, JONES DAY, Washington, D.C.; Larry S. McDevitt, VAN WINKLE, BUCK, WALL, STARNES AND DAVIS, P.A., Asheville, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Valuepest.com Pest Control, of Charlotte, and Incorporated, Pros, National Incorporated Pest Incorporated (collectively "Valuepest.com") appeal the district court's order denying their amended motion to correct the judgment under Fed. R. Civ. P. 60(a) and for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6). abandoned The the court issue denied raised the in motion the because by Valuepest.com motion failing to raise it on appeal and because granting the requested relief would be an improper deviation from the mandate rule. affirm. In the opening brief, Valuepest.com argues the merits of the Rule 60 motion. However, it fails to discuss the mandate We rule or whether the court correctly found it had abandoned the issue by failing to raise it on appeal. It is not until the reply brief that Valuepest.com raises either of these issues. In A Helping Hand, LLC v. Baltimore County, MD, 515 F.3d 356, 369 (4th Cir. 2008), this court stated that "`[i]t is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned.'" (quoting United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)). This court does not normally consider arguments raised for the first time in a reply brief. See SEC v. Pirate Investor, 580 F.3d 233, 255 n.23 (4th Cir. 2009). 3 Because Valuepest.com failed to discuss the merits of the district court's reasons for denying the Rule 60 motion in the argument section of the opening brief, we consider any challenge to be abandoned. court's order. Accordingly, we affirm the district 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 4

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