Nationwide Mutual Insurance Company v. JAMES H. FOLDEN, Individually

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 NATIONWIDE MUTUAL INSURANCE
COMPANY,
Plaintiff-Appellee,
v.
JAMES H. FOLDEN, Individually, and
as Administrator of the Estate of
Christopher E. Folden; CHRISTOPHER
E. FOLDEN; JOSHUA FOLDEN, infant
under the age of eighteen who sues
by his father James H. Folden; No. 02-2207 
ANGELA FOLDEN,
Defendants-Appellants,
and
NORMAN LEE FLETCHER, Personally,
and in his capacity as Director of
the Shawnee Chiefs Football
Organization; SHAWNEE CHIEFS
FOOTBALL ORGANIZATION,
Defendants. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, Chief District Judge.
(CA-99-229)
Submitted: May 9, 2003
Decided: May 16, 2003
Before WILKINSON and MOTZ, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.

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Dismissed in part and affirmed in part by unpublished per curiam
opinion.
COUNSEL
Kenneth E. Chittum, LAW OFFICE OF KENNETH E. CHITTUM,
Bluefield, West Virginia, for Appellants. Maria Marino Potter, MAC-
CORKLE, LAVENDER, CASEY & SWEENEY, P.L.L.C., Charles-
ton, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James Folden appeals from the district court’s orders granting sum-
mary judgment in favor of Nationwide Mutual Fire Insurance Com-
pany (Nationwide) and denying his motion to alter or amend the
judgment, pursuant to Fed. R. Civ. P. 59. An unambiguous judgment
order granting summary judgment in favor of Nationwide was entered
on May 15, 2002; however, because the first page of the accompany-
ing opinion erroneously stated that Nationwide’s motion was "DE-
NIED," the district court entered a corrected opinion on May 23,
2002, clarifying that the motion was "GRANTED." Folden filed his
Rule 59 motion on May 31, 2002. The district court denied the motion
as untimely by order entered October 4, 2002. Folden filed his notice
of appeal on October 16, 2002. We dismiss in part and affirm in part.
Parties are accorded thirty days after the entry of the district court’s
final judgment or order to note an appeal. Fed. R. App. P. 4(a)(1)(A).
However, if party files a Fed. R. Civ. P. 59 motion to alter, amend
or reconsider that judgment within ten days of its entry, the thirty day
period for noting an appeal is tolled until that motion is resolved. Fed.
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R. App. P. 4(a)(4)(A). An untimely motion under Rule 59 does not
defer the time for filing an appeal, which continues to run from the
entry of the initial judgment. Browder v. Dir., Dep’t of Corr., 434
U.S. 257, 264 (1978). These time periods are mandatory and jurisdic-
tional. Id.
We find that the relevant order, for purposes of measuring the ten-
day period for filing a Rule 59 motion, was the May 15 order. See
Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co.,
344 U.S. 206, 211-12 (1952) (holding that, where a judgment previ-
ously entered has been reentered or revised in an immaterial way, the
time within which review must be sought is not tolled); see also Whit-
tington v. Milby, 928 F.2d 188, 191 (6th Cir. 1991). Therefore, Fol-
den’s notice of appeal as to the underlying order granting summary
judgment to Nationwide is untimely.
Our review of the October 4, 2002, order denying Folden’s Rule
59 motion as untimely discloses no reversible error. Accordingly, we
affirm the appeal as to that order for the reasons stated by the district
court. 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 in the decisional process.
DISMISSED IN PART; AFFIRMED IN PART
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