Elmira Wheatley v. Edward Cohn, No. 14-1862 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1862 ELMIRA WHEATLEY; BRETT LEWIS WHEATLEY, Plaintiffs – Appellants, v. EDWARD S. COHN; STEPHEN N.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 Dismissed by unpublished per curiam opinion.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. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Elmira (“Appellants”) dismissing Wheatley seek this to action foreclosure action.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 3 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 4 prejudiced.” 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 5
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