Mildred Anne Kinghorn v. Clea Efthimiadis
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 9:16-cv-03108-DCN Copies to all parties and the district court/agency. [1000257773]. Mailed to: Clea Efthimiadis Unit 204 888 Brickell Key Drive Miami, FL 33131. [17-2235]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2235
MILDRED ANNE KINGHORN, As Trustee for the Mildred Anne Kinghorn Trust,
Dated April 28, 2004,
Plaintiff - Appellee,
v.
CLEA EFTHIMIADIS,
Defendant - Appellant,
and
GEORGE SAKAKINI, Defendant,
Defendant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort.
David C. Norton, District Judge. (9:16-cv-03108-DCN)
Submitted: February 28, 2018
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Decided: March 14, 2018
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Clea Efthimiadis, Appellant Pro Se. Charles Scott Graber, GRABER & BALDWIN,
Beaufort, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Clea Efthimiadis seeks to appeal the district court’s order affirming the magistrate
judge’s report and recommendation, granting Plaintiff’s motion to amend complaint, and
remanding to state court a removed action for trespass and conspiracy. We dismiss the
appeal for lack of jurisdiction because the notice of appeal was not timely filed. *
“[W]e have an independent obligation to verify the existence of appellate
jurisdiction.” Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (internal quotation marks
omitted). 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).
When a party files a timely Fed. R. Civ. P. 59 motion before filing a notice of appeal,
the time to file an appeal runs from the entry of the order resolving the Rule 59 motion.
Fed. R. App. P. 4(a)(4)(A)(iv). A Rule 59(e) motion must be filed within 28 days after
entry of the district court’s judgment. Fed. R. Civ. P. 59(e). “[A]n untimely Rule 59
motion cannot defer the time for filing a notice of appeal.” Panhorst v. United States, 241
F.3d 367, 370 (4th Cir. 2001). A Fed. R. Civ. P. 60 motion also suspends the appeal period
*
Although the notice of appeal would be timely as to the order denying the motion
for reconsideration, Efthimiadis’ notice of appeal and informal brief only seek review of
the district court’s August 4, 2017, order. Efthimiadis has thus waived review of the order
denying the motion for reconsideration. See Fed. R. App. P. 3(c)(1)(B); 4th Cir. R. 34(b).
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until resolution of the motion, but only “if the motion is filed no later than 28 days after
the judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi). A district court cannot extend
the time to file a Rule 59(e) or a Rule 60(b) motion. Fed. R. Civ. P. 6(b)(2).
Here, the district court entered its dismissal order on August 4, 2017. The 28-day
time period for filing a timely Rule 59(e) or a Rule 60(b) motion that would have tolled the
time for filing a notice of appeal expired on Friday, September 1, 2017. Efthimiadis filed
her Rule 59(e) and Rule 60(b) motion for reconsideration 32 days after judgment, on
September 5, 2017. This motion did not toll the time for filing an appeal. See Fed. R. App.
P. 4(a)(4)(A)(iv), (vi); Panhorst, 241 F.3d at 370. Efthimiadis filed her notice of appeal
on October 20, 2017—well over 60 days after the district court’s August 4, 2017, entry of
judgment.
Because Efthimiadis 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 the
court and argument would not aid the decisional process.
DISMISSED
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