Notice: Fourth Circuit I.o.p. 36.6 States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit, 930 F.2d 913 (4th Cir. 1990)

Herman Via, Sr., appeals an order of the district court which denied his Fed. R. Civ. P. 59(e) motion for reconsideration of a prior order of forfeiture on the ground that it was untimely, and also contends that the government breached his plea agreement. Because we find that the Rule 59 motion was timely, we vacate the district court's order and remand for further proceedings.

Via pled guilty to conspiracy to distribute cocaine, crack, and marijuana under a plea agreement which provided for the uncontested forfeiture of all his vehicles except his 1982 Cadillac; Via reserved the right to contest the seizure of the Cadillac. The government subsequently began forfeiture proceedings against Via's vehicles, including the Cadillac.

Via was initially represented by counsel in the forfeiture proceedings. At the same time the government submitted affidavits from two federal agents concerning Via's use of the Cadillac in his drug activities and moved for summary judgment, Via's attorney was allowed to withdraw. Via represented himself thereafter. However, he was never advised by the district court of his right to file counter-affidavits or other responsive materials or alerted to the fact that a failure to respond might result in entry of summary judgment against him. Such notice to a pro se party is required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Although Via responded, denying that he had ever used the Cadillac to facilitate his drug dealing, he did not submit any affidavits in support of his statement.

The district court granted the motion for summary judgment, and ordered the Cadillac forfeited in an order dated September 21, 1990.

Via then filed a Rule 59(e) motion for reconsideration dated and served October 3, 1990, in which he contended that an evidentiary hearing was necessary to resolve a disputed issue of material fact. It was filed in the district court on October 9, 1990. On December 27, 1990, the district court denied the motion as untimely because it was filed more than 10 days after the order of forfeiture.

Via contends and the government agrees that the district court erred in dismissing his Rule 59 motion as untimely.

Fed. R. Civ. P. 59 provides in pertinent part: (b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of judgment.

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

(Emphasis added.)

The plain language of Rule 59(b) and (e) discloses that the motion must be served within ten days of the entry of judgment. The date of the filing in the district court is not the deciding factor in determinations of timeliness. See Colville Confederated Tribes v. Walton, 752 F.2d 397 (9th Cir. 1985) (date of service, not of filing, determines timeliness of Rule 59 motion), cert. denied, 475 U.S. 1010 (1986); Clayton v. Douglas, 670 F.2d 143, 144 (10th Cir.) (same), cert. denied, 457 U.S. 1109 (1982).

Service is complete upon mailing. Fed. R. Civ. P. 5(b).

Excluding weekends, Via's Rule 59 motion was served on the eighth day following the order of forfeiture and was thus timely. Fed. R. Civ. P. 6(a) (when rules prescribe time period less than 11 days, weekends and holidays are excluded). Therefore, the district court erred in denying the motion on the ground of untimeliness without considering its merits and the case must be remanded for further proceedings.¹  On remand, the district court should also consider the effect which the lack of Roseboro notice to Via may have had on its decision to grant summary judgment rather than to hold an evidentiary hearing.

Via's claim that the government breached the plea agreement is not properly raised on appeal because it was not raised in the district court. See Kinty v. United Mine Workers of America, 544 F.2d 706, 722 (4th Cir. 1976) (claims first advanced at the appellate level and not presented in the district court will not be heard on appeal), cert. denied, 429 U.S. 1093 (1977).

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.² 

VACATED AND REMANDED.