UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1311
WILLIAM HAWKINS; ERIC KELLER; THOMAS ZATO; KRISTOF GABOR;
JUSTIN PANCHLEY,
Plaintiffs - Appellees,
v.
LASZLO BORSEY; MEDIAWARE CORPORATION; MEDIA TECHNIK KFT.,
Defendants – Appellants,
and
SAM BLACK; DMCC KOMMUNIKACIOS RT.; PETERFIA KFT.,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:05-cv-01256-LMB-TRJ)
Submitted: October 28, 2008 Decided: November 24, 2008
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey R. Gans, THELEN REID BROWN RAYSMAN & STEINER, LLP,
Washington, D.C., for Appellants. Creighton R. Magid, DORSEY &
WHITNEY, LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellants appeal from the district court’s order
denying their Fed. R. Civ. P. 60(b)(4) motion, which asserted
that a prior default judgment entered against them was void for
lack of subject matter jurisdiction. We affirm.
When reviewing a Rule 60(b) motion, 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).” MLC Auto. v. Town of S. Pines, 532 F.3d 269, 277
(4th Cir. 2008). Moreover, 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). Thus, in cases where a movant 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. See Ackermann v.
United States, 340 U.S. 193, 198 (1950). While lack of subject
matter jurisdiction can render a judgment “void” for purposes of
Rule 60(b)(4), such is the case only when the jurisdictional
error is “egregious” and there was no arguable basis on which a
finding of jurisdiction could be based. See Wendt v. Leonard,
431 F.3d 410, 412-13 (4th Cir. 2005). In practice, a “federal
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court judgment is almost never void because of lack of federal
subject matter jurisdiction.” Id. at 413.
Here, Appellants failed to appeal the entry of default
judgment. In addition, their history of litigating portions of
the case and then failing to respond during other portions shows
that the decision not to appeal was a conscious choice. Thus,
Appellants’ motion was simply an untimely attempt to appeal the
final judgment. Moreover, Appellants’ own statements that
Mediaware’s principal place of business was Hungary certainly
provided an arguable basis to conclude that there was diversity
of citizenship.
Because this case does not come close to showing an
egregious lack of subject matter jurisdiction, we affirm the
district court’s denial of the Rule 60(b) motion. 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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