UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2046
SCOTT CHRISTIAN WADLEY,
Plaintiff - Appellant,
v.
EQUIFAX INFORMATION SERVICES, LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cv-00467-GBL)
Submitted: July 29, 2008 Decided: October 9, 2008
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Carl Lowell Crews, C. LOWELL CREWS, ATTORNEY AT LAW, PLLC,
Arlington, Virginia, for Appellant. Barry Goheen, J. Anthony Love,
KING & SPALDING, LLP, Atlanta, Georgia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Scott Christian Wadley appeals the district court’s
denial of his Fed. R. Civ. P. 60(b)(4), (6) motion, wherein he
sought relief from the district court’s adverse grant of summary
judgment in favor of Equifax Information Services, LLC (“Equifax”)
relative to claims he brought under the Fair Credit Reporting Act,
15 U.S.C. §§ 1681-1681x. For the reasons stated below, we affirm.
It is well-settled that “a Rule 60(b) motion seeking
relief from a final judgment is not a substitute for a timely and
proper appeal.” Dowell v. State Farm Fire & Cas. Auto. Ins. Co.,
993 F.2d 46, 48 (4th Cir. 1993) (citing Ackermann v. United States,
340 U.S. 193, 198 (1950)). Thus, in cases where a petitioner makes
a “considered choice” not to appeal, he cannot be relieved of that
choice merely because hindsight demonstrates that his decision to
forego a timely appeal was probably wrong in light of subsequent
rulings by the court. See Ackermann, 340 U.S. at 198. There is no
dispute here that Wadley failed to appeal the district court’s
grant of summary judgment on which his Rule 60(b) motion is based.1
As the Supreme Court stated in Ackermann, “By no stretch of
imagination can the voluntary, deliberate, free, untrammeled choice
1
Not only does Wadley concede that he failed to timely and
properly notice an appeal as to Equifax, but he also agreed to
dismiss Equifax with prejudice from a related appeal, when Equifax
inadvertently was included as a party in that appeal, based in part
on his reluctance to pay the additional fees and costs associated
with having Equifax included in that prior appeal.
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of [a Petitioner] not to appeal” constitute a sufficient basis for
Rule 60(b) relief. Id. at 200; see also Dowell, 993 F.2d at 47
(affirming denial of Rule 60(b) motion where movant “knowingly and
voluntarily chose not to appeal the district court’s [underlying]
decision”).
Moreover, a motion under Rule 60(b) must be filed within
“a reasonable time.” Fed. R. Civ. P. 60(c)(1); McLawhorn v. John
W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991) (finding Rule
60(b) motion untimely when delay in filing was three to four
months). In this case, Wadley waited almost two years after the
district court’s adverse grant of summary judgment in favor of
Equifax to file his Rule 60(b) motion.2 That he chose to wait for
the litigation in this court as to the related appeal to become
final so he unnecessarily would not have to pay additional fees and
costs for an appeal as to Equifax is not a sufficient justification
supporting the relief he now seeks. Under these circumstances, we
find this passage of time was not reasonable.
Pursuant to the standards articulated by this court
relative to considering the merits of a Rule 60(b)(4) motion, a
judgment is “void” only where “the court that rendered it lacked
2
While Wadley argues on appeal that he filed promptly after we
issued our remand in Wadley v. Experian Info. Solutions, Inc., No.
05-2054 (4th Cir. July 17, 2007) (per curiam) (unpublished), the
related appeal, our actions in that case have no bearing on the
summary judgment order against Equifax because Equifax, as Wadley
himself concedes, was never a proper party to that appeal.
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jurisdiction of the subject matter, or of the parties, or if it
acted in a manner inconsistent with due process of law.” Schwartz
v. United States, 976 F.2d 213, 217 (4th Cir. 1992). Wadley makes
no argument, nor is there any to be made, that the district court
lacked subject matter or personal jurisdiction when it granted
Equifax’s summary judgment motion. Nor did the district court act
in a manner inconsistent with due process. “A judgment is not
‘void’ under Rule 60(b)(4) merely because it is erroneous.” Cromer
v. Kraft Foods No. Am., 390 F.3d 812, 817 (4th Cir. 2004). Hence
this court’s subsequent action in vacating and remanding the
district court’s grant of summary judgment in the related appeal,
which rested upon the same analysis as its grant of summary
judgment in favor of Equifax, is not, contrary to Wadley’s
contention, a legitimate basis for relief pursuant to Rule
60(b)(4).
Neither has Wadley established “extraordinary
circumstances” supporting entitlement to relief pursuant to Rule
60(b)(6), because “strategic decisions made during the course of
litigation provide no basis for relief under 60(b)(6).” See
Schwartz, 976 F.2d at 218. Nor was the change in the decisional
law on which the district court based its decision to grant
Equifax’s motion for summary judgment, which was brought about by
our decision to vacate and remand the grant of summary judgment as
to the party in the related appeal, sufficient to establish
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“extraordinary circumstances” under Rule 60(b)(6). See Dowell, 993
F.2d at 48 (affirming denial of Rule 60(b)(6) motion where basis
for relief was subsequent change in law).
Finally, Wadley’s Rule 60(b) motion is a clear attempt to
require the district court to revisit its previous decision
dismissing Equifax from the underlying litigation, based upon this
court’s subsequent decision to vacate and remand the district
court’s decision granting summary judgment in the related case.
This he simply cannot do. See In re Burnley, 988 F.2d 1, 3 (4th
Cir. 1992). Wadley may not use Rule 60(b) as a vehicle to excuse
his failure to seek review of the final judgment granted to Equifax
almost two years earlier and from which he chose not to take an
appeal.
The district court did not err in denying Wadley’s Rule
60(b) motion. Accordingly, we affirm the district court’s order.
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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