                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1791


JERRY LEE RHODES; BONNIE M. COCHRAN,

                Plaintiffs – Appellants,

          v.

HARTFORD FIRE INSURANCE COMPANY,

                Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
District Judge. (2:12-cv-07135)


Submitted:   November 25, 2013             Decided:   December 5, 2013


Before GREGORY, SHEDD, and WYNN, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam
opinion.


Scott S. Blass, BORDAS & BORDAS, PLLC, Wheeling, West Virginia,
for Appellant. Archibald Wallace, III, Thomas J. Moran,
WALLACEPLEDGER, PLLC, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Jerry     Lee     Rhodes     and       Bonnie        Cochran       (hereinafter

“Appellants”) filed suit in West Virginia state court against

Hartford       Fire      Insurance         Company          (hereinafter          “Hartford”),

seeking statutory damages for bad faith and unfair settlement

practices, as well as damages under Hayseeds, Inc. v. State Farm

Fire     &    Cas.,      352     S.E.2d    73       (W.     Va.     1986),       after    having

substantially         prevailed      on    their       claims       against       Hartford      as

surety to a mortgage broker bond.                         After Hartford removed the

case to federal court pursuant to diversity jurisdiction, the

district court granted Hartford’s motion to dismiss the action

for failure to state a claim.                   By a separate judgment order, the

court    indicated        that    the     action      was    to   be     dismissed       without

prejudice.           Hartford      subsequently           moved     to    correct        clerical

error    in    the     judgment,        pursuant      to     Fed.    R.    Civ.     P.    60(a),

arguing that the court’s analysis revealed that it had intended

to     dismiss     the     action       with        prejudice.            Over     Appellants’

objections, the court granted the requested relief.                                 Appellants

now seek to appeal the district court’s order dismissing the

action       and   its    order    granting         Rule     60(a)       relief.         For   the

reasons that follow, we dismiss in part and affirm in part.

               While not addressed by the parties, we are obliged to

review our appellate jurisdiction sua sponte, Dickens v. Aetna

Life Ins. Co., 677 F.3d 228, 229-30 (4th Cir. 2012), and having

                                                2
done so, we conclude that we are without jurisdiction to review

the court’s judgment of dismissal.

            Parties to a civil action are accorded thirty days

after the entry of final judgment to note an appeal, Fed. R.

App. P. 4(a)(1)(A), unless the district court extends the appeal

period under Fed. R. App. P. 4(a)(5), or reopens the appeal

period under Fed. R. App. P. 4(a)(6).               “[T]he timely filing of a

notice     of     appeal    in     a   civil    case     is      a    jurisdictional

requirement.”       Bowles v. Russell, 551 U.S. 205, 214 (2007).

            “A    district       court’s    entry   of   a    corrected     judgment

under Rule 60(a) is itself an appealable order, but the scope of

the appeal is limited to the court’s disposition of the Rule

60(a) motion and does not bring up for review the underlying

judgment.”       Rivera v. PNS Stores, Inc., 647 F.3d 188, 201 n.55

(5th     Cir.    2011)     (internal       quotation     marks       and   alteration

omitted)), cert. denied, 132 S. Ct. 1741 (2012).                      “The time for

appeal from the underlying judgment correspondingly dates from

the original rendition of judgment in the Rule 60(a) context

. . . .”        Int’l Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d

Cir. 1977).

            If a party files a motion “for relief under [Fed. R.

Civ. P.] 60 . . . no later than 28 days after the judgment is

entered,” “the time to file an appeal runs for all parties from

the entry of the order disposing of” that motion.                      Fed. R. App.

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P. 4(a)(4)(A)(vi).        Even assuming a Rule 60(a) motion could toll

the     appeal   period    under    this     provision,        we     conclude      that

Appellants’ appeal is untimely as to the underlying dismissal

order.     The district court entered its memorandum order on the

docket on March 4, 2013, and its judgment order on March 5,

2013.       Hartford’s     Rule    60(a)     motion      was    not     filed       until

April 29, 2013, outside the twenty-eight day period for a Rule

60 motion that would toll the appeal period.                          The notice of

appeal was filed on June 19, 2013, well outside the thirty-day

appeal period.       Therefore, because Appellants failed to file a

timely notice of appeal from the dismissal and judgment orders,

or to obtain an extension or reopening of the appeal period from

these orders, we dismiss the appeal insofar as it challenges the

underlying judgment dismissing Appellants’ action.

            Turning to the appeal of the order granting Hartford’s

Rule 60(a) motion—from which Appellants’ notice of appeal is

timely—the parties dispute the appropriate standard of review;

Hartford    argues   that    the    motion        is   reviewed       for    abuse    of

discretion, while Appellants assert that our review is de novo.

We need not resolve this dispute, however, as even applying a de

novo     standard,   we     conclude       that    the    district          court    was

authorized to grant Rule 60(a) relief.

            A district court “may correct a clerical mistake or a

mistake arising from oversight or omission whenever one is found

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in a judgment, order, or other part of the record.”                                     Fed. R.

Civ. P. 60(a).          Rule 60(a) applies when “the court intended one

thing but by merely clerical mistake or oversight did another.”

Dura-Wood Treating Co. v. Century Forest Indus., Inc., 694 F.2d

112, 114 (5th Cir. 1982); see also Kosnoski v. Howley, 33 F.3d

376,      379    (4th   Cir.    1994)       (recognizing            that      Rule     60(a)    is

appropriately used “to perform a completely ministerial task”

such as “making a judgment more specific in the face of an

original        omission”     but     not    to       “revisit          the   merits    of     the

question” or “reconsider[] the matter” (internal quotation marks

omitted)).         “The relevant test . . . is whether the change

affects     substantive        rights       of       the   parties        and   is     therefore

beyond the scope of Rule 60(a) or is instead a clerical error, a

copying or computational mistake, which is correctable under the

Rule.”      Pfizer Inc. v. Uprichard, 422 F.3d 124, 130 (3d Cir.

2005) (internal quotation marks and alteration omitted).

            The basic distinction between clerical mistakes
       and mistakes that cannot be corrected pursuant to Rule
       60(a) is that the former consist of blunders in
       execution whereas the latter consists of instances
       where the court changes its mind, either because it
       made a legal or factual mistake in making its original
       determination, or because on second thought it has
       decided to exercise its discretion in a manner
       different from the way it was exercised in the
       original determination.

In   re    Walter,      282    F.3d    434,      440       (6th    Cir.       2002)    (internal

quotation       marks    omitted);      see          Rivera,      647    F.3d    at    199     (“An


                                                 5
amendment to a judgment affects the substantive rights of the

parties if it expands the scope or modifies the content of the

court’s adjudication.”).             Thus, “Rule 60(a) does not provide for

the correction of the deliberate choice of the district judge,

even where that deliberate choice is based on a mistake of law.”

Rivera,     647    F.3d       at   195-96     (internal      quotation      marks   and

footnote omitted).            However, “Rule 60(a) authorizes a district

court to modify a judgment so that the judgment reflects the

necessary implications of the court’s decision,” even if they

were not expressly stated.                  Id. at 194-95 (internal quotation

marks omitted).          The district court’s intent may be ascertained

through consideration of contemporaneous documents, such as a

memorandum opinion or transcript, and by the presiding judge’s

own subsequent statements regarding his intent.                      Id., at 196-97;

In re Jee, 799 F.2d 532, 535 (9th Cir. 1986).

            We     conclude        that     the   court     did   not      exceed   its

authority    in    granting        relief    under   Rule    60(a)    to   change   the

dismissal to one with prejudice.                     While Appellants correctly

note that the court referred to the Ashcroft v. Iqbal, 556 U.S.

662 (2009), pleading standard when dismissing their claims, this

statement     is        not    dispositive.           Contrary       to    Appellants’

assertions,       the     court’s     analysis       did    not   contemplate       that

amendment would permit Appellants to plead cognizable claims.

Rather, the court clearly based its dismissal on its conclusion

                                             6
that the surety bond did not establish the requisite contractual

relationship          between       Hartford     and    Appellants         to     support

first-party claimant status.              Moreover, in its Rule 60(a) order,

the court specifically stated that the dismissal was a clerical

mistake.        In the absence of record evidence to the contrary, we

find no basis to discredit this explanation.                           See Rivera, 647

F.3d    at   196-97.         Because    dismissal      of   the    complaint      without

prejudice is logically inconsistent with the court’s rationale,

we     conclude       that    the      court’s    dismissal        order    implicitly

dismissed       the    case     with    prejudice,      and      the   judgment      order

designating a dismissal without prejudice was merely a clerical

error.

              Appellants cite to several cases for the proposition

that    changing       a   dismissal     from    “without     prejudice”        to   “with

prejudice” works a substantive change inappropriate under Rule

60(a).       But we find these cases distinguishable.                      Despite the

fact     that    the       parties’    understanding        of    their    rights     and

obligations arising from the original dismissal may have been

changed by the order granting Rule 60(a) correction, the order

effected no actual substantive change to the parties’ rights

that was not contemplated by the original memorandum order.                           See

id. at 199 (“Where the record makes it clear that an issue was

actually litigated and decided but was incorrectly recorded in

. . . the judgment, the district court can correct the judgment

                                            7
under Rule 60(a), even where doing so materially changes the

parties’ positions and leaves one party to the judgment in a

less   advantageous    position.”).          Because      the   correction    was

clerical    in   nature,    we   conclude   that    the   district    court   had

authority    under   Rule    60(a)   to     alter   its    judgment   order   to

reflect a dismissal with prejudice.

            Accordingly, we dismiss the appeal in part, insofar as

it challenges the court’s underlying dismissal of Appellants’

claims.     We affirm in part, insofar as the appeal seeks review

of the order granting Rule 60(a) relief.               We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                            DISMISSED IN PART;
                                                              AFFIRMED IN PART




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