UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2334
ROBIN M. LAWLER,
Plaintiff - Appellant,
versus
AMERICAN BUILDING CONTRACTORS, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-03-1514-1)
Submitted: August 12, 2005 Decided: August 26, 2005
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robin M. Lawler, Appellant Pro Se. Ingo Frank Burghardt, Courtney
Renee Sydnor, HUNTON & WILLIAMS, L.L.P., McLean, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robin M. Lawler filed a complaint against her former
employer, American Building Contractors, Inc. (“ABC”), claiming
defamation and failure by ABC to provide Lawler with proper notice
of her rights under the Employee Retirement Income Security Act, 29
U.S.C. §§ 1001-1168 (2000) (“ERISA”), as amended by the
Consolidated Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161-
69 (2000) (“COBRA”). The district court granted ABC’s motion for
summary judgment and denied Lawler’s Fed. R. Civ. P. 59(e) motion
for reconsideration. We have reviewed the record and find no
reversible error.
Lawler claims the district court erred by dismissing her
Rule 59(e) motion because the deposition of critical witness Chris
Kulik was unavailable prior to the entry of judgment. We review
the denial of a Rule 59(e) motion for an abuse of discretion.
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 653 (4th
Cir. 2002). Lawler had ample time to find Kulik before she filed
her claim and during discovery. The district court was extremely
patient with Lawler and gave her numerous opportunities to find
Kulik. The district court was well within its discretion to grant
ABC’s summary judgment motion and deny Lawler’s Rule 59(e) motion.
Lawler next claims her counsel provided ineffective
assistance. However, a litigant in a civil action has no
constitutional or statutory right to effective assistance of
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counsel. Sanchez v. United States Postal Serv., 785 F.2d 1236,
1237 (5th Cir. 1986). The appropriate avenue for raising such a
claim is a malpractice suit. Accordingly, we do not consider
Lawler’s ineffective assistance of counsel claim.
Lawler claimed the district court erred when it granted
summary judgment for ABC because ABC did not give her proper notice
of her COBRA rights when it discontinued her health care coverage
after Lawler and ABC had settled Lawler’s prior lawsuits following
her termination of employment. We review de novo a district
court’s order granting summary judgment. Price v. Thompson, 380
F.3d 209, 212 (4th Cir. 2004). Under COBRA, a qualified
beneficiary under a group health plan who will lose coverage is
entitled to notice of his or her right to elect continuation
coverage upon the occurrence of a qualifying event. 29 U.S.C. §
1166(a)(4) (2000). The loss of health care coverage in these
circumstances is not a qualifying event under 29 U.S.C.A. § 1163
(2000), and ABC was under no obligation to notify Lawler of her
COBRA rights. The district court did not err when it found that
the settlement agreement was not a qualifying event requiring COBRA
notification, and accordingly the court correctly denied relief on
Lawler’s ERISA claim.
Lawler claimed ABC prevented her from deposing Kulik, and
Kulik acted illegally in evading deposition. Lawler did not make
either claim to the district court. Claims raised for the first
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time on appeal will not be considered by this court absent
exceptional circumstances. Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993). Lawler did not present exceptional circumstances
because none of the evidence upon which she now relies is in the
record. A party may not raise a claim on appeal relating to
evidence that is not part of the record. United States v. Russell,
971 F.2d 1098, 1112 (4th Cir. 1992).
Lawler also claimed that the district court erred by
dismissing contract claims unrelated to Kulik. Lawler did not make
any contract claims to the district court that did not involve
Kulik. As Lawler did not raise these claims in the district court
and provided no facts or argument warranting a finding of
exceptional circumstances, we do not consider these claims. Muth,
1 F.3d at 250.
Accordingly, we affirm the district court’s orders
granting ABC’s motion for summary judgment and denying Lawler’s
Rule 59(e) motion. We also deny ABC’s motion to dismiss for
failure to prosecute. 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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