Assa'ad-Faltas v. Rogers ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARIE ASSA'AD-FALTAS, M.D.,
M.P.H.,
Plaintiff-Appellant,
No. 95-2849
v.
DAVID H. ROGERS,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-94-575-5-H)
Submitted: December 26, 1996
Decided: January 27, 1997
Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed as modified by unpublished per curiam opinion.
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COUNSEL
Orin G. Briggs, Irmo, South Carolina, for Appellant. David H. Rog-
ers, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Marie Assa'ad-Faltas brought this legal malpractice action against
her former attorney. Finding no error in the district court's decision,
we affirm.
Assa'ad-Faltas claimed her North Carolina attorney failed to file a
brief in another appeal before this court. See Assa'ad-Faltas v. Vir-
ginia Dep't of Health, No. 91-3025 (4th Cir. Aug. 20, 1992) (unpub-
lished). In that appeal, we affirmed the district court's judgment
against Assa'ad-Faltas. She now claims her attorney's failure to file
a brief led this court to find against her.
However, we permitted the attorney to withdraw, and Assa'ad-
Faltas retained substitute counsel. That attorney filed a brief on her
behalf, and Assa'ad-Faltas filed a second brief herself. Thus, this
court's disposition of the prior appeal was not affected by her first
attorney's failure to file a brief, and Assa'ad-Faltas failed to establish
that the outcome would not have occurred but for his actions. See
Rorrer v. Cooke, 329 S.E.2d 355, 366 (N.C. 1985).
We also affirm the district court's denial of Assa'ad-Faltas' "Mo-
tion for a New Trial Combined with Her Motion to Deem this Motion
Timely Filed." In the motion, Assa'ad-Faltas claimed only that the
court clerk mistakenly returned to her two exhibits and that the dis-
trict court improperly allowed Appellee to file affidavits excessive in
length and substance. Assa'ad-Faltas sought to file the motion as one
for a new trial under Fed. R. Civ. P. 59; however, because she filed
the motion more than ten days after entry of judgment, she moved the
district court to consider it timely filed. The district court agreed to
consider it timely filed, but denied the motion on its merits.
The district court improperly construed the motion as timely filed
under Rule 59. A Rule 59 motion must be served within ten days of
entry of judgment; this period is jurisdictional and cannot be extended
or waived at the district court's discretion. Fed. R. Civ. P. 6; see also
de la Fuente v. Central Electric Cooperative, Inc. , 703 F.2d 63, 65
(3rd Cir. 1983).
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However, the motion may be construed as a motion to alter or
amend judgment under Fed. R. Civ. P. 60(b), see United States v.
Williams, 674 F.2d 310, 312 (4th Cir. 1982), which is reviewed for
abuse of discretion. Id. Nonetheless, the motion is without merit, as
it failed to establish either a meritorious defense or exceptional cir-
cumstances. See Dowell v. State Fire & Cas. Auto Inc. Co., 993 F.2d
46 (4th Cir. 1993).
Accordingly, we affirm the district court's decision, but modify it
to the extent that the district court improperly construed her motion
as one under Rule 59. Additionally, we deny Assa'ad-Faltas' motions
to strike Appellee's brief, to exclude Appellee from oral argument, to
personally participate in oral argument, and for referral of this case
to a specific panel. We grant her motion to file a supplemental appen-
dix. Further, we deny Appellee's motion to dismiss the case and for
sanctions. We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before the court
and argument would not aid the decisional process.*
AFFIRMED AS MODIFIED
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*We have reviewed the remainder of Assa'ad-Faltas' claims and find
them to be without merit.
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