Michael J. Hale, d/b/a Data Base Technologies v. Belton Associates, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1974
MICHAEL J. HALE, d/b/a Data Base Technologies,
Plaintiff - Appellant,
v.
BELTON ASSOCIATES, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-00099-GBL)
Submitted: December 17, 2008 Decided: January 9, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John P. Forest, II, STAHL, FOREST & ZELLOE, P.C., Fairfax,
Virginia, for Appellant. Aleksander Lamvol, SHEPPARD, MULLIN,
RICHTER & HAMPTON, LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Hale appeals the district court’s order
denying relief on his motion filed pursuant to Fed. R. Civ. P.
60(a), (b). Finding no abuse of discretion, we affirm.
Final judgment in this breach of contract case was
entered on July 26, 2006. Hale did not appeal. He filed his
Rule 60 motion on July 23, 2007--almost one year later. In the
motion, Hale contended that the district court had failed to
rule on his claim that he was not given reasonable notice prior
to termination of an employment contract. At the hearing on
Hale’s motion, the district court inquired why Hale had not
appealed following entry of final judgment. Hale’s attorney
replied, “[W]e honestly just lost track of that.”
Because the claimed error was not of the sort
contemplated by Rule 60(a), see In re: Walter, 282 F.3d 434,
440-41 (6th Cir. 2002), Hale’s motion more appropriately falls
under Rule 60(b). To support a motion under Rule 60(b), a
movant must show “timeliness, a meritorious defense, a lack of
unfair prejudice to the opposing party, and exceptional
circumstances.” Dowell v. State Farm Fire & Cas. Auto. Ins.
Co., 993 F.2d 46, 48 (4th Cir. 1993) (internal quotation marks
omitted).
We review the denial of a Rule 60(b) motion for abuse
of discretion. MLC Auto. v. Town of S. Pines, 532 F.3d 269, 277
2

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(4th Cir. 2008). We do “not review the merits of the underlying
order, [but rather] only review the denial of the motion with
respect to the grounds set forth in Rule 60(b).” Id. It is
well established that “a Rule 60(b) motion seeking relief from a
final judgment is not a substitute for a timely and proper
appeal.” Dowell, 993 F.2d at 48. Thus, if a Rule 60(b)
movant’s failure to appeal is the result of “inexcusable
negligence” or “a considered choice” not to appeal, relief under
the Rule is unavailable. See Ackermann v. United States, 340
U.S. 193, 198, 202 (1950).
Here, there was no abuse of discretion. Under the
cited authorities, Hale’s negligent failure to note a timely
appeal from the district court’s final order precluded relief
under Rule 60(b). This case simply does not present exceptional
circumstances that would entitle Hale to relief.
Accordingly, we affirm. The request for sanctions
under Fed. R. App. P. 38 is denied. 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 the decisional process.
AFFIRMED

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