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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1791
JERRY LEE RHODES; BONNIE M. COCHRAN,
Plaintiffs Appellants,
v.
HARTFORD FIRE INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
District Judge. (2:12-cv-07135)
Submitted:
November 25, 2013
Decided:
December 5, 2013
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Scott S. Blass, BORDAS & BORDAS, PLLC, Wheeling, West Virginia,
for Appellant. Archibald Wallace, III, Thomas J. Moran,
WALLACEPLEDGER, PLLC, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry
Lee
Rhodes
and
Bonnie
Cochran
(hereinafter
Appellants) filed suit in West Virginia state court against
Hartford
Fire
Insurance
Company
(hereinafter
Hartford),
seeking statutory damages for bad faith and unfair settlement
practices, as well as damages under Hayseeds, Inc. v. State Farm
Fire
&
Cas.,
substantially
352
S.E.2d
prevailed
73
on
(W.
their
Va.
1986),
claims
surety to a mortgage broker bond.
after
against
having
Hartford
as
After Hartford removed the
case to federal court pursuant to diversity jurisdiction, the
district court granted Hartfords motion to dismiss the action
for failure to state a claim.
court
indicated
prejudice.
error
in
that
Hartford
the
the
By a separate judgment order, the
action
was
subsequently
judgment,
pursuant
to
be
moved
to
dismissed
without
correct
clerical
to
Fed.
R.
Civ.
P.
60(a),
arguing that the courts analysis revealed that it had intended
to
dismiss
the
action
with
prejudice.
Over
objections, the court granted the requested relief.
Appellants
Appellants
now seek to appeal the district courts order dismissing the
action
and
its
order
granting
Rule
60(a)
relief.
For
the
reasons that follow, we dismiss in part and affirm in part.
While not addressed by the parties, we are obliged to
review our appellate jurisdiction sua sponte, Dickens v. Aetna
Life Ins. Co., 677 F.3d 228, 229-30 (4th Cir. 2012), and having
2
done so, we conclude that we are without jurisdiction to review
the courts judgment of dismissal.
Parties to a civil action are accorded thirty days
after the entry of final judgment 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).
notice
of
appeal
requirement.
A
in
civil
[T]he timely filing of a
case
is
jurisdictional
Bowles v. Russell, 551 U.S. 205, 214 (2007).
district
courts
entry
of
corrected
judgment
under Rule 60(a) is itself an appealable order, but the scope of
the appeal is limited to the courts disposition of the Rule
60(a) motion and does not bring up for review the underlying
judgment.
Rivera v. PNS Stores, Inc., 647 F.3d 188, 201 n.55
(5th
2011)
Cir.
(internal
quotation
marks
and
omitted)), cert. denied, 132 S. Ct. 1741 (2012).
alteration
The time for
appeal from the underlying judgment correspondingly dates from
the original rendition of judgment in the Rule 60(a) context
. . . .
Intl Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d
Cir. 1977).
If a party files a motion for relief under [Fed. R.
Civ. P.] 60 . . . no later than 28 days after the judgment is
entered, the time to file an appeal runs for all parties from
the entry of the order disposing of that motion.
3
Fed. R. App.
P. 4(a)(4)(A)(vi).
the
appeal
period
Even assuming a Rule 60(a) motion could toll
under
this
provision,
we
conclude
that
Appellants appeal is untimely as to the underlying dismissal
order.
The district court entered its memorandum order on the
docket on March 4, 2013, and its judgment order on March 5,
2013.
Hartfords
Rule
60(a)
motion
was
not
filed
until
April 29, 2013, outside the twenty-eight day period for a Rule
60 motion that would toll the appeal period.
The notice of
appeal was filed on June 19, 2013, well outside the thirty-day
appeal period.
Therefore, because Appellants failed to file a
timely notice of appeal from the dismissal and judgment orders,
or to obtain an extension or reopening of the appeal period from
these orders, we dismiss the appeal insofar as it challenges the
underlying judgment dismissing Appellants action.
Turning to the appeal of the order granting Hartfords
Rule 60(a) motionfrom which Appellants notice of appeal is
timelythe parties dispute the appropriate standard of review;
Hartford
argues
that
the
motion
is
reviewed
for
abuse
of
discretion, while Appellants assert that our review is de novo.
We need not resolve this dispute, however, as even applying a de
novo
standard,
we
conclude
that
the
district
court
was
authorized to grant Rule 60(a) relief.
A district court may correct a clerical mistake or a
mistake arising from oversight or omission whenever one is found
4
in a judgment, order, or other part of the record.
Civ. P. 60(a).
Fed. R.
Rule 60(a) applies when the court intended one
thing but by merely clerical mistake or oversight did another.
Dura-Wood Treating Co. v. Century Forest Indus., Inc., 694 F.2d
112, 114 (5th Cir. 1982); see also Kosnoski v. Howley, 33 F.3d
376,
379
(4th
Cir.
1994)
(recognizing
that
Rule
60(a)
is
appropriately used to perform a completely ministerial task
such as making a judgment more specific in the face of an
original
omission
but
not
to
revisit
the
merits
of
the
question or reconsider[] the matter (internal quotation marks
omitted)).
affects
The relevant test . . . is whether the change
substantive
rights
of
the
parties
and
is
therefore
beyond the scope of Rule 60(a) or is instead a clerical error, a
copying or computational mistake, which is correctable under the
Rule.
Pfizer Inc. v. Uprichard, 422 F.3d 124, 130 (3d Cir.
2005) (internal quotation marks and alteration omitted).
The basic distinction between clerical mistakes
and mistakes that cannot be corrected pursuant to Rule
60(a) is that the former consist of blunders in
execution whereas the latter consists of instances
where the court changes its mind, either because it
made a legal or factual mistake in making its original
determination, or because on second thought it has
decided to exercise its discretion in a manner
different from the way it was exercised in the
original determination.
In
re
Walter,
quotation
marks
282
F.3d
omitted);
434,
440
see
(6th
Rivera,
Cir.
647
2002)
F.3d
at
(internal
199
(An
amendment to a judgment affects the substantive rights of the
parties if it expands the scope or modifies the content of the
courts adjudication.).
Thus, Rule 60(a) does not provide for
the correction of the deliberate choice of the district judge,
even where that deliberate choice is based on a mistake of law.
Rivera,
647
F.3d
at
footnote omitted).
195-96
(internal
quotation
marks
and
However, Rule 60(a) authorizes a district
court to modify a judgment so that the judgment reflects the
necessary implications of the courts decision, even if they
were not expressly stated.
marks omitted).
Id. at 194-95 (internal quotation
The district courts intent may be ascertained
through consideration of contemporaneous documents, such as a
memorandum opinion or transcript, and by the presiding judges
own subsequent statements regarding his intent.
Id., at 196-97;
In re Jee, 799 F.2d 532, 535 (9th Cir. 1986).
We
authority
in
conclude
that
granting
relief
the
court
under
dismissal to one with prejudice.
Rule
did
not
60(a)
to
exceed
change
its
the
While Appellants correctly
note that the court referred to the Ashcroft v. Iqbal, 556 U.S.
662 (2009), pleading standard when dismissing their claims, this
statement
assertions,
is
the
not
dispositive.
courts
analysis
Contrary
did
not
to
Appellants
contemplate
that
amendment would permit Appellants to plead cognizable claims.
Rather, the court clearly based its dismissal on its conclusion
6
that the surety bond did not establish the requisite contractual
relationship
between
Hartford
first-party claimant status.
and
Appellants
to
support
Moreover, in its Rule 60(a) order,
the court specifically stated that the dismissal was a clerical
mistake.
In the absence of record evidence to the contrary, we
find no basis to discredit this explanation.
F.3d
at
196-97.
Because
dismissal
of
the
See Rivera, 647
complaint
without
prejudice is logically inconsistent with the courts rationale,
we
conclude
dismissed
that
the
case
the
courts
with
dismissal
prejudice,
and
order
the
implicitly
judgment
order
designating a dismissal without prejudice was merely a clerical
error.
Appellants cite to several cases for the proposition
that
changing
dismissal
from
without
prejudice
to
with
prejudice works a substantive change inappropriate under Rule
60(a).
fact
But we find these cases distinguishable.
that
the
parties
understanding
of
their
Despite the
rights
and
obligations arising from the original dismissal may have been
changed by the order granting Rule 60(a) correction, the order
effected no actual substantive change to the parties rights
that was not contemplated by the original memorandum order.
See
id. at 199 (Where the record makes it clear that an issue was
actually litigated and decided but was incorrectly recorded in
. . . the judgment, the district court can correct the judgment
7
under Rule 60(a), even where doing so materially changes the
parties positions and leaves one party to the judgment in a
less
advantageous
clerical
authority
in
position.).
nature,
under
Rule
we
Because
conclude
60(a)
to
the
that
the
alter
its
correction
district
judgment
court
order
was
had
to
reflect a dismissal with prejudice.
Accordingly, we dismiss the appeal in part, insofar as
it challenges the courts underlying dismissal of Appellants
claims.
We affirm in part, insofar as the appeal seeks review
of the order granting Rule 60(a) relief.
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 IN PART;
AFFIRMED IN PART
