CVLR Performance Horses, Inc. v. Wynne

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1021

CVLR PERFORMANCE HORSES, INC.,

Plaintiff,

VICKI L. MARSH,

Intervenor/Plaintiff,

and

KAREN FOSTER,

Intervenor/Plaintiff – Appellant,

v.

JOHN L. WYNNE; 1650 PARTNERS, LLC; RIVERMONT CONSULTANTS,
INC., f/k/a The Rivermont Banking Co., Inc.,

Defendants – Appellees,

and

OLD DOMINION NATIONAL BANK; ADVANTAGE TITLE & CLOSING LLC; S
& R FARM, LLC; RALPH BECK; SHANA LESTER, f/k/a Shana Beck,

Defendants.

No. 14-1022

CVLR PERFORMANCE HORSES, INC.,

Plaintiff,

KAREN FOSTER,
 Intervenor/Plaintiff,

and

VICKI L. MARSH,

Intervenor/Plaintiff – Appellant,

v.

JOHN L. WYNNE; 1650 PARTNERS, LLC; RIVERMONT CONSULTANTS,
INC., f/k/a The Rivermont Banking Co., Inc.,

Defendants – Appellees,

and

OLD DOMINION NATIONAL BANK; ADVANTAGE TITLE & CLOSING LLC; S
& R FARM, LLC; RALPH BECK; SHANA LESTER, f/k/a Shana Beck,

Defendants.

Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:11-cv-00035-NKM-RSB)

Argued: March 25, 2015 Decided: July 9, 2015

Before SHEDD, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Shedd and Judge Wynn joined.

ARGUED: Gary M. Bowman, Roanoke, Virginia, for Appellant. Chad
Allan Mooney, PETTY, LIVINGSTON, DAWSON & RICHARDS, Lynchburg,
Virginia, for Appellees. ON BRIEF: John E. Falcone, PETTY,
LIVINGSTON, DAWSON & RICHARDS, Lynchburg, Virginia, for Appellees.

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DIAZ, Circuit Judge:

In November 2013, Appellants Karen Foster and Vicki Marsh

sought to intervene as plaintiffs in a civil RICO action brought

by CVLR Performance Horses, Inc. against John Wynne and his

businesses. The district court denied the motions, finding that

the statute of limitations on Appellants’ claims had run and that

equitable tolling was not appropriate under the circumstances.

Foster and Marsh timely appealed, but the underlying suit between

CVLR and Wynne settled and was dismissed by the district court

approximately ten weeks later, while this appeal was pending.

Wynne then moved to dismiss this appeal, arguing that the

settlement of the underlying action rendered the appeal moot. We

deferred consideration of the motion until the appeal was fully

briefed, and we now deny Wynne’s motion to dismiss and affirm the

district court’s denial of Appellants’ motions to intervene.

I.

On September 8, 2011, CVLR filed suit against John Wynne and

his solely owned companies, Rivermont Consultants, Inc. and 1650

Partners, LLC, alleging violations of the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1961–68 (“RICO”), as well

as Virginia state law. In short, CVLR alleged that Wynne and his

companies engaged in a scheme to defraud CVLR by falsely

representing Rivermont Consultants as a bank, making loans to CVLR

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under false pretenses, and committing insurance fraud. After CVLR

amended its complaint, Wynne moved to dismiss. The district court

granted Wynne’s motion, finding that CVLR failed to state a claim

under RICO. CVLR appealed and this court reversed, concluding

that CVLR had adequately pleaded its RICO claim.

About four months after we remanded CVLR’s action to the

district court (and more than two years after the case was first

filed), Appellants Foster and Marsh moved to intervene as

plaintiffs. Appellants are acquaintances of Wynne who were

allegedly victims of his financial schemes, including but not

limited to fraudulent home foreclosures. Although Foster and Marsh

are not mentioned in CVLR’s initial complaint, both are described

in the amended complaints as additional victims in Wynne’s alleged

RICO scheme. In their motions, Foster and Marsh adopted the

allegations of CVLR’s second amended complaint 1 and pleaded one

RICO count each, with Marsh adding one count of unjust enrichment.

The district court denied Appellants’ motions to intervene.

The court explained that although intervention would otherwise be

proper, Appellants’ claims were barred by the four-year statute of

limitations on private civil RICO claims. The district court

further found that the “unusual” and “extraordinary” remedy of

1 After the case returned to the district court, CVLR was
permitted to amend its complaint for a second time.

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equitable tolling was not appropriate, because Foster and Marsh

had not diligently pursued their claims or demonstrated any

extraordinary circumstances that would justify equitable relief.

Foster and Marsh timely appealed the district court’s judgment.

Shortly after Foster and Marsh appealed, CVLR and Wynne took

part in a settlement conference at which they agreed to dismiss

the action in its entirety. The district court formally dismissed

the case in a March 27, 2014 order. Thereafter, Wynne moved to

dismiss Appellants’ appeal, citing our decision in Chesapeake Bay

Foundation v. American Recovery Co., 769 F.2d 207 (4th Cir. 1985),

and arguing that the dismissal of the underlying action rendered

the appeal moot because Foster and Marsh could not possibly

intervene in a case that no longer exists. We elected to defer

ruling on the motion until after the parties fully briefed the

appeal.

II.

This appeal raises two questions. First, we must decide as

a threshold matter whether the settlement and dismissal of the

underlying case renders moot Appellants’ appeal of the denial of

their motions to intervene. If so, we lack subject matter

jurisdiction and must dismiss the appeal. If, however, the appeal

is not moot, we must decide whether the district court erred when

5
it denied Foster’s and Marsh’s motions to intervene as time-barred

and declined to apply equitable tolling.

A.

Because the case or controversy requirement “stems from the

Constitution, it may not be ignored for convenience’s sake.”

Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007). We therefore

begin by considering Appellees’ contention that this appeal is

moot. Appellees argue that the dismissal of the underlying action

ended any remaining case or controversy, and that the appeal is

thus moot because “[i]t is a legal impossibility to intervene in[]

a case that does not exist.” Appellees’ Mot. to Dismiss at 4,

Foster v. Wynne, No. 14-1021 (4th Cir. Apr. 15, 2014), ECF No. 23.

We disagree.

The federal courts “are without power to decide questions

that cannot affect the rights of litigants in the case before

them.” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (internal

quotation marks omitted). Thus, the parties’ stake in the outcome

of the case must exist not only at the case’s inception, but for

the entire duration of the proceedings. Litigation may become

moot during the pendency of an appeal when an intervening event

makes it impossible for the court to grant effective relief to the

prevailing party. Incumaa, 507 F.3d at 286.

Our circuit has not squarely addressed whether dismissal of

the underlying action automatically moots a pending appeal of the

6
district court’s denial of a motion to intervene, and our sister

circuits have differed in their approaches to the issue. The

Eleventh and Third Circuits have held that dismissal of the

underlying action does not moot an appeal of the denial of a motion

to intervene. See Purcell v. BankAtlantic Fin. Corp., 85 F.3d

1508, 1511 n.3 (11th Cir. 1996) (finding that settlement of the

case does not moot a preexisting appeal because the court could

“potentially grant [the appellant] effective relief” by giving it

standing to appeal the approval of the settlement); Neidig v.

Rendina, 298 F. App’x 115, 116 n.1 (3d Cir. 2008) (unpublished)

(allowing an appeal of the denial of a motion to intervene to move

forward despite the subsequent dismissal of the appeal of the

underlying action).

Several other circuits have followed suit, holding that

jurisdiction over an appeal lies as long as the motion to intervene

is made while the case is still live, although two courts have

rendered inconsistent decisions. See, e.g., DBSI/TRI IV Ltd.

P’ship v. United States, 465 F.3d 1031, 1037 (9th Cir. 2006)

(holding that the intervention controversy survived final judgment

in the underlying case because “if it were concluded on appeal

that the district court had erred . . . the applicant would have

standing to appeal the district court’s judgment”) (internal

quotation marks omitted); Alt. Research & Dev. Found. v. Veneman,

262 F.3d 406, 410 (D.C. Cir. 2001) (“[O]ur jurisdiction . . . is

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not affected by the fact that the district court denied

intervention after the stipulated dismissal was entered; the

dismissal does not render the appeal moot.”); FDIC v. Jennings,

816 F.2d 1488, 1491 (10th Cir. 1987) (observing that the settlement

did not resolve the would-be intervenors’ claims, and that “[t]o

allow a settlement between parties to moot an extant

appeal . . . might well provide incentives for settlement that

would run contrary to the interests of justice”). 2 But see W.

Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc.,

643 F.3d 701, 704 (9th Cir. 2011) (dismissing appeal as moot after

final judgment was entered in the underlying case because the court

“cannot grant [the appellant] any ‘effective relief’” when “the

underlying litigation is over”); Energy Transp. Grp., Inc. v. Mar.

Admin., 956 F.2d 1206, 1210 (D.C. Cir. 1992) (same). Finally, the

Second Circuit has held in an unpublished decision that an appeal

of the denial of a motion to intervene is immediately mooted when

2The Tenth Circuit’s ruling in Jennings can be contrasted
usefully with its decision in Tosco Corp. v. Hodel, 804 F.2d 590,
592 (10th Cir. 1986), in which the court dismissed the appeal of
the denial of a motion to intervene as moot when the motion was
not filed in the district court until after the case had already
been settled and dismissed. Most courts that have considered
situations similar to Tosco agree that when the motion to intervene
is not filed until after the underlying case is fully resolved,
that motion is moot. See, e.g., GMAC Comm. Mortg. Corp. v. LaSalle
Bank Nat’l Ass’n, 213 F.R.D. 150, 150 (S.D.N.Y. 2003) (dismissing
an attempt to intervene as moot when intervention was sought on
the same day the underlying case was dismissed).

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the underlying case is dismissed. Kunz v. N.Y. State Comm’n on

Judicial Misconduct, 155 F. App’x 21, 22 (2d Cir. 2005).

In the case before us, the underlying action that was the

subject of Appellants’ motions to intervene was dismissed

following the settlement between CVLR and Wynne. However, this is

not a case akin to Tosco or GMAC in which the would-be intervenors

failed to assert their rights until after the underlying case was

concluded. To the contrary, the case was live when Appellants

moved to intervene, and remained so when the district court denied

the motions and Appellants appealed to this court.

We find more persuasive the reasoning of those courts holding

that dismissal of the underlying action does not automatically

moot a preexisting appeal of the denial of a motion to intervene.

This is so because in many cases, the resolution of an action

between the original parties is not determinative of the

defendant’s liability with respect to other potential plaintiffs.

In these circumstances, when the motion to intervene is made while

the controversy is live and the subsequent disposition of the case

does not provide the relief sought by the would-be intervenors

(for example, money damages, as Appellants seek here), we can

provide an effective remedy on appeal and therefore have

jurisdiction.

Contrary to Appellees’ argument, we do not find that this

case is controlled by our decision in Chesapeake Bay Foundation.

9
In that case, plaintiff environmental groups filed suit against

the defendant, alleging violations of discharge permits under the

Clean Water Act, on the same day the government initiated an

enforcement action against the defendant on the same subject

matter. 769 F.2d at 208. The district court granted the

defendant’s motion to dismiss the complaint as duplicative of the

government’s action, and subsequently denied the plaintiffs’

motion to intervene in the government’s suit. Id. The plaintiffs

appealed both rulings, but the government and the defendant

negotiated a consent decree during the pendency of the appeal.

Id. at 209. Despite finding that the plaintiffs had an “express

statutory right[]” to intervene, we held (and the plaintiffs

effectively agreed) that the settlement mooted the appeal because

it provided all of the relief that the plaintiffs sought. Id.

The decree required that the defendant cease the operations at

issue and abandon its discharge permits, a resolution that

plaintiffs conceded was “a ‘good’ settlement to which they ha[d]

no objections.” Id.

Critically, the settlement of the underlying action in the

instant case did not provide Appellants the relief they sought.

Were we to reverse the district court’s denial of the motions to

intervene, Appellants could pursue their claims for damages

against Wynne independently of CVLR’s now-settled case. See Atkins

v. State Bd. of Educ., 418 F.2d 874, 876 (4th Cir. 1969)

10
(“Ordinarily intervention cannot be used to revive a law suit, but

a court may treat intervention as a separate action, especially

when the intervenor has an independent basis for jurisdiction.”).

Because a ruling in Appellants’ favor on the merits of their appeal

would provide them effective relief, we have jurisdiction.

B.

We turn next to Appellants’ argument that the district court

reversibly erred by declining to apply equitable tolling, which

would have allowed Appellants to intervene after the statute of

limitations on their claims had expired. We review a district

court’s decision not to apply equitable tolling for abuse of

discretion, Chao v. Va. Dep’t of Transp., 291 F.3d 276, 279–80

(4th Cir. 2002), and will affirm unless the district court acted

arbitrarily or in reliance on erroneous factual or legal premises,

James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

The statute of limitations on private civil RICO claims is

four years, beginning on the date the plaintiff “discovered, or

should have discovered, the injury.” Potomac Elec. Power Co. v.

Elec. Motor & Supply, Inc., 262 F.3d 260, 266 (4th Cir. 2001). 3

Although it is unclear from the limited record when exactly

Appellants’ RICO claims accrued, the latest accrual date alleged

3 Appellants do not appeal the district court’s ruling with
respect to Marsh’s unjust enrichment claim.

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falls in September 2008. See CVLR Performance Horses, Inc. v.

Wynne, No. 6:11-cv-00035, 2013 WL 6409894, at *4 (W.D. Va. Dec. 9,

2013); Appellants’ Br. at 17, 18, 32. Thus, even under Appellants’

own timeline, the four-year statute of limitations had run by the

time they moved to intervene in November 2013.

Appellants argue that although their motions to intervene

were not filed until fourteen months after the statute of

limitations expired, the delay does not bar relief under the

doctrine of equitable tolling. To qualify for equitable tolling,

Appellants must show that (1) they diligently pursued their rights,

but (2) an extraordinary circumstance prevented them from timely

filing their claim. Holland v. Florida, 560 U.S. 631, 649 (2010).

Equitable tolling has long been considered an extraordinary remedy

in this circuit, and litigants face a considerable burden to

demonstrate that it applies. Harris v. Hutchinson, 209 F.3d 325,

330 (4th Cir. 2000) (explaining that reprieve from the statute of

limitations must be “guarded and infrequent,” and “reserved for

those rare instances where--due to circumstances external to the

party’s own conduct--it would be unconscionable to enforce the

limitation period . . . and gross injustice would result”).

The district court’s refusal to apply equitable tolling was

not an abuse of discretion because Appellants did not demonstrate

diligent pursuit of their rights or extraordinary circumstances

sufficient to excuse their delay. With respect to the first prong,

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Appellants contend that they diligently pursued their rights by

doing the following: (1) Foster filed for bankruptcy and initiated

a separate state proceeding against Wynne to enjoin the foreclosure

of her home; (2) Foster objected to Wynne’s attempt to evict her

from her home, alleging that that the foreclosure sale was a sham;

(3) Foster noted in her bankruptcy schedules that she planned to

file a RICO case against Wynne; and (4) Marsh “repeatedly, and

continuously . . . complained to the federal and state criminal

authorities, to the banking regulatory agencies . . . and to the

courts of South Carolina” that Wynne had injured her, Appellants’

Br. at 32. Notably absent from Appellants’ allegations, however,

is any indication that either Foster or Marsh took any steps toward

actually filing a RICO claim.

Although we have declined to establish rigid guidelines for

assessing diligence in this context, we have explained that

diligence can be demonstrated by actions like “filing a defective

pleading during the statutory period.” United States v. Babb, 54

F. App’x 772, 774 (4th Cir. 2003) (unpublished). Foster and Marsh

do not allege that they made any attempts to file a RICO claim

between the time their claims accrued in 2008 and the filing of

their motions to intervene in November 2013. They do not say that

they were unaware of the existence of CVLR’s suit, or that they

endeavored to pursue their RICO claims in a separate proceeding

but were thwarted. Nor have Appellants explained why, after we

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reversed the district court’s dismissal of CVLR’s complaint and

remanded the action, they waited four months before moving to

intervene. 4

Appellants insist that, at the very least, the district court

should have held an evidentiary hearing to determine the extent of

their diligence, particularly with respect to Marsh, whom they

describe as autistic. They claim that this case is similar to

Forbess v. Franke, in which the Ninth Circuit held that a mentally

ill petitioner was entitled to equitable tolling because his

delusions prevented him from filing suit in a timely manner. 749

F.3d 837 (9th Cir. 2014).

As an initial matter, it is within the sound discretion of

the district court to dispose of a motion without a hearing. Fed.

R. Civ. P. 78(b). And unlike in Forbess, Appellants have not

pleaded any connection between Marsh’s alleged mental impairment

and their failure to file a RICO claim during the limitations

period, either in their motions to intervene or on appeal. Nor

4 Foster and Marsh make much of the district court’s comment
that even if a qualifying extraordinary circumstance occurred in
April 2012 when CVLR’s case was erroneously dismissed, Appellants
still “waited for more than three and a half years” before taking
any action to pursue their rights. See Wynne, 2013 WL 6409894, at
*4. Contrary to Appellants’ repeated assertions that the district
court effectively shortened the statute of limitations by six
months, the district court was merely observing that Appellants’
failure to take any action at all between September 2008 and April
2012 weighed against a finding of diligence.

14
does Forbess stand for the principle that an evidentiary hearing

is required in any case involving a party with a mental impairment.

To the contrary, the Forbess court relied on the test enunciated

in Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), which requires

a showing that the impairment (1) was “so severe that the

petitioner was unable personally . . . to understand the need to

timely file,” and (2) “made it impossible under the totality of

the circumstances to meet the filing deadline despite petitioner’s

diligence.” Forbess, 749 F.3d at 840. Because Appellants have

not pleaded any link between Marsh’s alleged mental condition and

their late filings, the district court did not abuse its discretion

by foregoing a hearing.

Appellants have also failed to show that extraordinary

circumstances prevented them from filing their claims during the

limitations period. Tolling is proper “where the petitioner has

in some extraordinary way . . . been prevented from asserting his

or her rights,” although the doctrine “does not lend itself to

bright-line rules.” Harris, 209 F.3d at 330 (internal quotation

marks omitted). The circumstances preventing a party from pursuing

his or her rights must be “external to the party’s own conduct.”

Id. For example, extraordinary circumstances have been found when

parties lack access to the courts entirely. See Chao v. Va. Dep’t

of Transp., 157 F. Supp. 2d 681, 697 n.8 (E.D. Va. 2001), aff’d in

part, rev’d in part, 291 F.3d 276 (observing that limited access

15
to the courts during wartime is an extraordinary circumstance).

Extraordinary circumstances may also exist when a plaintiff is

“prevented from asserting [his or her] claims by some kind of

wrongful conduct on the part of the defendant.” Harris, 209 F.3d

at 330. In addition, we have found extraordinary circumstances

when the statute of limitations ran after a party received a

favorable (but later determined to be erroneous) administrative

disposition of her claim. See Nealon v. Stone, 958 F.2d 584, 593

(4th Cir. 1992) (applying equitable tolling because the plaintiff

“had no reason at [the time the statute ran] to doubt that the

Army would follow the EEOC’s determination”).

Appellants say that after the dismissal of CVLR’s claim in

April 2012, they were “prohibited” from filing their own claim or

moving to intervene in CVLR’s case because they would have “been

subject to Rule 11 sanctions for asserting a RICO claim against

Wynne, when the court had already held . . . that Wynne’s conduct

did not meet RICO’s continuity requirement.” Appellants’ Br. at

28. They thus contend that the dismissal of CVLR’s case was an

“extraordinary circumstance” that prevented them from asserting

their rights because it rendered their claims unwarranted under

existing law. This argument is unavailing.

We agree with the district court that the dismissal created

a difficult situation for Appellants as potential intervenors, and

acknowledge the likelihood that a separately filed complaint would

16
have been dismissed. But we also find it implausible that

Appellants would have faced Rule 11 sanctions for filing a pleading

after the dismissal of CVLR’s suit in order to preserve their

rights during the limitations period, particularly because Rule 11

permits filings based not only on existing law, but also on

nonfrivolous arguments for the modification or reversal of

existing law. Fed. R. Civ. P. 11(b)(2). Accordingly, we agree

with the district court that no extraordinary circumstances

existed that warranted equitable tolling.

III.

For the reasons given, we deny Appellees’ motion to dismiss

this appeal, and affirm the district court’s denial of Appellants’

motions to intervene.

AFFIRMED

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