Andre McSwain v. Laurene Jobs, No. 14-1426 (4th Cir. 2014)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1426 ANDRE J. MCSWAIN, Plaintiff Appellant, v. LAURENE POWELL JOBS; APPLE INC; GOOGLE INC., Defendants - Appellees. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cv-00890-CCE-JLW) Submitted: September 25, 2014 Decided: September 29, 2014 Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed in part, dismissed in part by unpublished per curiam opinion. Andre J. McSwain, Appellant Pro Se. William Andrew Copenhaver, Ronald R. Davis, James Aaron Dean, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem, North Carolina; Rodrick John Enns, ENNS & ARCHER, LLP, Winston-Salem, North Carolina; Jacqueline Elizabeth Young, PERKINS COIE LLP, San Francisco, California, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Andre dismissing his McSwain appeals complaint for the district failure to court s state a order claim and denying his self-styled motions to strike, its order denying his motions to denying his district alter or motion judge amend for and for sanctions, recusal to assigned of case. his the and magistrate For the its order judge reasons and that follow, we affirm in part and dismiss in part. First, we conclude that we lack jurisdiction over the district court s underlying dismissal order, because McSwain s notice of appeal was not timely as to that order. App. P. 4(a)(1)(A), (a)(5), (a)(6). notice of appeal requirement. in Bowles a v. See Fed. R. [T]he timely filing of a civil case is Russell, 551 U.S. a jurisdictional 205, 214 (2007). McSwain s motion for reconsideration, appropriately construed as a Fed. R. Civ. P. 60(b) motion, see In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992), was not effective to toll the appeal period from the underlying judgment. See Fed. R. App. P. 4(a)(4)(A). Accordingly, we dismiss this portion of the appeal for lack of jurisdiction. Turning to the denial of McSwain s post-judgment motions, we limit appellate review to those issues raised in the informal brief. 4th Cir. R. 34(b). We conclude that the district court did not abuse its discretion in determining that 2 McSwain failed to make the relief or for recusal. requisite showing for Rule 60(b) See Cent. Tel. Co. of Va. v. Sprint Commc ns Co. of Va., 715 F.3d 501, 515 (4th Cir.) (standard of review for recusal decisions), cert. denied, 134 S. Ct. 423 (2013); Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en banc) (standard Leventhal, 640 of review F.3d for 567, Rule 572-74 60(b) (4th motions); Cir. 2011) Belue v. (discussing requirements for judicial recusal); Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (describing requirements for relief under Rule 60(b)). Accordingly, although we grant leave to proceed in forma pauperis, we affirm the district court s rulings in these orders. We dispense with oral legal contentions are before this and argument adequately because presented in the the facts and materials court argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 3