Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 14-1021
No. 14-1022
Intervenor/Plaintiff,
and
VICKI L. MARSH,
Intervenor/Plaintiff Appellant,
v.
JOHN L. WYNNE; 1650 PARTNERS, LLC; RIVERMONT CONSULTANTS,
INC., f/k/a The Rivermont Banking Co., Inc.,
Defendants Appellees,
and
OLD DOMINION NATIONAL BANK; ADVANTAGE TITLE & CLOSING LLC; S
& R FARM, LLC; RALPH BECK; SHANA LESTER, f/k/a Shana Beck,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.
Norman K. Moon, Senior
District Judge. (6:11-cv-00035-NKM-RSB)
Argued:
Decided:
July 9, 2015
CVLR
Performance
businesses.
Horses,
Inc.
against
John
Wynne
and
his
then
moved
to
dismiss
this
appeal,
arguing
that
the
We
I.
On September 8, 2011, CVLR filed suit against John Wynne and
his solely owned companies, Rivermont Consultants, Inc. and 1650
Partners, LLC, alleging violations of the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. 196168 (RICO), as well
as Virginia state law.
companies
engaged
in
scheme
to
defraud
CVLR
by
falsely
After CVLR
Appellants
plaintiffs.
Foster
Appellants
and
are
Marsh
moved
acquaintances
to
of
intervene
Wynne
who
as
were
not
diligently
pursued
their
claims
or
demonstrated
any
appeal
moot
because
Foster
and
Marsh
could
not
possibly
We elected to defer
ruling on the motion until after the parties fully briefed the
appeal.
II.
This appeal raises two questions.
motions
to
intervene.
If
so,
we
lack
subject
matter
is not moot, we must decide whether the district court erred when
We therefore
Foster v. Wynne, No. 14-1021 (4th Cir. Apr. 15, 2014), ECF No. 23.
We disagree.
The federal courts are without power to decide questions
that cannot affect the rights of litigants in the case before
them.
of the case must exist not only at the cases inception, but for
the entire duration of the proceedings.
The
Eleventh and
the
Third
Circuits
have
held
that
dismissal
of
1508, 1511 n.3 (11th Cir. 1996) (finding that settlement of the
case does not moot a preexisting appeal because the court could
potentially grant [the appellant] effective relief by giving it
standing to appeal the approval of the settlement); Neidig v.
Rendina, 298 F. Appx 115, 116 n.1 (3d Cir. 2008) (unpublished)
(allowing an appeal of the denial of a motion to intervene to move
forward despite the subsequent dismissal of the appeal of the
underlying action).
Several
other
circuits
have
followed
suit,
holding
that
Pship v. United States, 465 F.3d 1031, 1037 (9th Cir. 2006)
(holding that the intervention controversy survived final judgment
in the underlying case because if it were concluded on appeal
that the district court had erred . . . the applicant would have
standing
to
appeal
the
district
courts
judgment)
(internal
not
affected
intervention
by
after
the
the
fact
that
stipulated
the
district
dismissal
was
court
denied
entered;
the
settlement
between
parties
to
moot
an
extant
But see W.
Finally, the
of
Appellants
motions
to
intervene
was
dismissed
However, this is
the
original
parties
is
not
determinative
of
the
an
effective
remedy
on
appeal
and
therefore
have
jurisdiction.
Contrary to Appellees argument, we do not find that this
case is controlled by our decision in Chesapeake Bay Foundation.
9
769
F.2d
at
208.
The
district
court
granted
the
action,
and
subsequently
denied
the
plaintiffs
Id.
The plaintiffs
appealed
and
the
both
rulings,
but
the
government
defendant
Id.
and
abandon
its
discharge
permits,
resolution
that
Id.
Appellants
could
pursue
their
claims
for
damages
State
Bd.
of
Educ.,
418
F.2d
10
874,
876
(4th
Cir.
1969)
We review a district
Elec. Motor & Supply, Inc., 262 F.3d 260, 266 (4th Cir. 2001). 3
Although
it
is
unclear
from
the
limited
record
when
exactly
not
filed
until
fourteen
months
after
the
statute
of
limitations expired, the delay does not bar relief under the
doctrine of equitable tolling.
Appellants must show that (1) they diligently pursued their rights,
but (2) an extraordinary circumstance prevented them from timely
filing their claim.
330 (4th Cir. 2000) (explaining that reprieve from the statute of
limitations must be guarded and infrequent, and reserved for
those rare instances where--due to circumstances external to the
partys own conduct--it would be unconscionable to enforce the
limitation period . . . and gross injustice would result).
The district courts refusal to apply equitable tolling was
not an abuse of discretion because Appellants did not demonstrate
diligent pursuit of their rights or extraordinary circumstances
sufficient to excuse their delay. With respect to the first prong,
12
is any indication that either Foster or Marsh took any steps toward
actually filing a RICO claim.
Although we have declined to establish rigid guidelines for
assessing
diligence
in
this
context,
we
have
explained
that
do not allege that they made any attempts to file a RICO claim
between the time their claims accrued in 2008 and the filing of
their motions to intervene in November 2013.
749
Fed.
Nor
showing
that
the
impairment
(1)
was
so
severe
that
the
not pleaded any link between Marshs alleged mental condition and
their late filings, the district court did not abuse its discretion
by foregoing a hearing.
Appellants
have
also
failed
to
show
that
extraordinary
of Transp., 157 F. Supp. 2d 681, 697 n.8 (E.D. Va. 2001), affd in
part, revd in part, 291 F.3d 276 (observing that limited access
15
Appellants Br. at
have
been
dismissed.
But
we
also
find
it
implausible
that
the
arguments
for
the
modification
district
court
that
no
or
reversal
of
Accordingly, we agree
extraordinary
circumstances
III.
For the reasons given, we deny Appellees motion to dismiss
this appeal, and affirm the district courts denial of Appellants
motions to intervene.
AFFIRMED
17