Elmira Wheatley v. Edward Cohn

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--terminating Motion to dismiss appeal [999438793-2], terminating Motion to dismiss appeal [999431919-2] Originating case number: 1:13-cv-03850-GLR Copies to all parties and the district court/agency. [999540597]. Mailed to: Elmira Wheatley. [14-1862]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1862

ELMIRA WHEATLEY; BRETT LEWIS WHEATLEY,
Plaintiffs – Appellants,
v.
EDWARD S. COHN; STEPHEN N. GOLDBERG; RICHARD E. SOLOMON;
RICHARD J. ROGERS; RANDALL J. ROLLS; FLAGSTAR BANK;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, (MERS); ST. FIN
CORP., d/b/a Star Financial, a California Corporation,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:13-cv-03850-GLR)

Submitted:

February 19, 2015

Decided:

March 5, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Elmira Wheatley, Brett Lewis Wheatley, Appellants Pro Se.
Michael J. McKeefery, Richard J. Rogers, COHN, GOLDBERG &
DEUTSCH,
LLC,
Towson,
Maryland;
Christine
Marie
Debevec,
STRADLEY RONON STEVENS & YOUNG LLP, Philadelphia, Pennsylvania;
John Alexander Nader, STRADLEY RONON STEVENS & YOUNG LLP,
Washington, D.C.; Michael Lichtenstein, Benjamin Powell Smith,
SHULMAN, ROGERS, GANDAL, PORDY & ECKER, PA, Potomac, Maryland,
for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Elmira
(“Appellants”)
dismissing

Wheatley
seek

this

to

action

foreclosure action.

and

appeal
raising

Brett
the

Lewis

district

numerous

Wheatley

court’s

claims

related

order
to

a

Appellees move to dismiss the appeal as

untimely, and the Wheatleys have replied to the motion.

We

grant

of

Appellees’

motion

and

dismiss

the

appeal

for

lack

jurisdiction because the notice of appeal was not timely filed.
“[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.”
U.S. 205, 214 (2007).

Bowles v. Russell, 551

Generally, a party has 30 days after the

entry of the district court’s final judgment or order to notice
an appeal.

See Fed. R. App. P. 4(a)(1)(A).

The notice period

may be extended or reopened by the district court.

See Fed. R.

App. P. 4(a)(5), (6).
The

district

court

entered

an

order

dismissing

granting Appellees’ motion to dismiss on May 30, 2014; so the
notice period ended on June 30, 2014.

Because Appellants filed

their notice of appeal of this order on July 25, 2014, their
notice of appeal was untimely.
Additionally, the district court did not extend the
notice period and the district court could not have reopened the
notice period.

First, a district court may extend the notice

period if two requirements are satisfied: (1) the party seeking
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an extension moves for the extension “no later than 30 days”
after the close of the notice period and (2) “that party shows
excusable

neglect

or

4(a)(5)(A)(i)–(ii).
requirement.

good

cause.”

Here,

Fed.

Appellants

R.

satisfied

the

P.

first

Their motion for an extension was due on July 30,

2014; and they filed this motion on July 23, 2014.
district

App.

court

determined

Appellants

did

However, the

not

demonstrate

excusable neglect or good cause for an extension. Appellants
have not appealed the district court’s denial of this motion, so
we

decline

to

review

the

district

court’s

decision.

Accordingly, the notice period was not extended.
Second, we may construe an untimely notice of appeal
as a motion to reopen the time to notice an appeal if an excuse
for the untimeliness is offered.

See United States v. Akinkoye,

16 F. App’x 179 (4th Cir. 2001) (per curiam).

Regardless of any

excuse offered by Appellants, the district court could not have
reopened

the

notice

reopened

if

three

period.
conditions

The
are

notice

period

satisfied:

may

(1)

only

the

be

party

seeking to reopen the period did not receive notice “of the
entry of the judgment or order sought to be appealed within 21
days after entry”; (2) “the motion is filed within 180 days
after the judgment or order is entered or within 14 days after
the moving party receives notice . . . of the entry, whichever
is earlier”; and (3) “the court finds that no party would be
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prejudiced.”

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Fed. R. App. P. 4(a)(6)(A)–(C).

It is clear that

Appellants cannot satisfy the second condition.
At

the

latest,

Appellants

received

notice

of

the

district court’s order on June 24, 2014 -- the date on the
certificate

of

service

accompanying

their

motion

seeking

clarification of the order, which indicates Appellants’ receipt
of the order.

So at the latest, Appellants were required to

move to reopen by July 8, 2014.

Neither their motion nor their

untimely notice were filed before this deadline.

Accordingly,

the district court could not have reopened the notice period.
Because

Appellants

failed

to

file

a

timely

notice

of

appeal or to obtain an extension or reopening of the appeal
period, we dismiss the appeal.

We 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

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