                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0290n.06

                                         No. 10-5999

                           UNITED STATES COURT OF APPEALS                           FILED
                                FOR THE SIXTH CIRCUIT                          Jun 02, 2016
                                                                           DEBORAH S. HUNT, Clerk
HEATHER MCKEEVER, et al.,

       Plaintiffs-Appellants,
v.
                                                    ON APPEAL FROM THE UNITED
MORTGAGE ELECTRONIC                                 STATES DISTRICT COURT FOR THE
REGISTRATION SYSTEMS, INC., et al.,                 EASTERN DISTRICT OF KENTUCKY

       Defendants-Appellees.


____________________________________/


BEFORE:        CLAY, GIBBONS, and STRANCH, Circuit Judges.

       CLAY, Circuit Judge. Plaintiffs Heather McKeever and Shane Haffey (“Plaintiffs”)

appeal from the district court’s order granting Defendant Mortgage Electronic Registration

Systems, Inc.’s (“MERS”) motion to dismiss. For the reasons set forth below, we DISMISS this

appeal for lack of jurisdiction.

                                      BACKGROUND

       On October 21, 2008, Plaintiffs filed a complaint against MERS in Kentucky state court,

seeking to quiet title to their home located at 3250 Delong Road, Lexington, Kentucky 40515

(“the Property”). Plaintiffs’ complaint appeared to acknowledge the existence of a mortgage on

the Property (“the Mortgage”), but averred that any transfer of the Mortgage to MERS was

invalid. MERS removed the case to federal court and thereafter filed a motion to dismiss.

Before the district court ruled on that motion, however, Plaintiffs’ case was consolidated with
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three others concerning the Property. As part of the consolidation process, MERS’s motion to

dismiss was denied without prejudice and subsequently reinstated. The court’s reinstatement

order required the parties to file supplemental briefs on MERS’s motion to dismiss.

       In accordance with the court’s order, MERS filed a supplemental brief and affidavit

informing the district court that: (1) MERS did, in fact, hold a valid mortgage on the Property

when Plaintiffs’ case was filed; but (2) since filing its original motion to dismiss, MERS had

assigned the Mortgage to non-party Deutsche Bank. MERS’s supplemental brief argued that as a

result of this intervening assignment, MERS no longer claimed an interest in the Property and the

quiet title suit against it should be dismissed. Plaintiffs filed a sur reply, arguing that the

assignment was “bogus.” The district court adopted MERS’s argument and granted its motion to

dismiss. Judgment was entered pursuant to the district court’s order on March 18, 2010.

       On April 6, 2010, Plaintiffs filed a motion for reconsideration. In that motion, Plaintiffs

“request[ed] that the [Title] be quieted as to Deutsche as it has had actual notice of the action

since its inception. In the alternative and at a minimum, the Plaintiffs request that this Motion

for Reconsideration be viewed as a Motion to Join Deutsche as a [sic] Additional Party

Defendant.” (Filed in lead consolidated case No. 08-459, R. 41, PageID 371.) Before the district

court ruled on that motion, Plaintiffs filed a notice of appeal from the March 18, 2010 order

dismissing their case.

       On May 11, 2010, the district court issued an order denying Plaintiffs’ motion for

reconsideration, holding that Plaintiff’s failed to establish a basis for relief under Federal Rules

of Civil Procedure 59(e) and 60. Plaintiffs’ previous notice of appeal became effective upon the

denial of their motion for reconsideration, see Fed. R. App. P. 4(a)(4)(B)(i) (governing effective




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                                          No. 10-5999


date of notices of appeal filed after final judgment but before ruling on post-judgment motions),

and their appeal was docketed as Sixth Circuit Case No. 10-5577.

        Rather than pursue Appeal No. 10-5577, on May 18, 2010, Plaintiffs filed a motion styled

“request for ruling on motion for reconsideration.” (No. 08-459, R. 61.)         In that motion,

Plaintiffs argued that the district court’s order denying their motion for reconsideration never

fully disposed of Plaintiffs’ request to join Deutsche Bank as a defendant. On June 3, 2010,

while Plaintiffs’ “request for ruling” was pending before the district court, this Court dismissed

Appeal No. 10-5577 for lack of prosecution.

        On July 12, 2010, the district court issued an order construing Plaintiffs’ “request for

ruling” as a motion “for the court to reconsider its denial of her motion for reconsideration.”

(No. 08-459, R. 77, PageID 597.) In that order, the court concluded that “[Plaintiffs] did not

move to join Deutsche Bank as a defendant before this case was dismissed, and [their] failure to

do so does not warrant reconsideration of the dismissal of her action under” Rules 59(e) or 60.

(Id.) The district court also observed:

        [Plaintiffs’] motion is untimely under Fed. R. Civ. P. 59(e). A judgment was
        entered in [Case No. 08-456] on March 18, 2010, and [Plaintiffs] filed [their]
        second motion for reconsideration on May 18, 2010. A Rule 59(e) motion . . .
        must be filed no later than 28 days after the entry of judgment.

(Id. at 598.)

        On August 12, 2010, Plaintiffs filed a new notice of appeal, again appealing from the

March 18, 2010 dismissal of case No. 08-456. This second appeal was docketed as the instant

action, Sixth Circuit Case No. 10-5999.




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                                          DISCUSSION

       Federal Rule of Appellate Procedure 4(a)(1)(A) establishes that a party has 30 days from

the entry of judgment or the order appealed from to file a notice of appeal. This deadline,

however, is subject to the exception provided in Rule 4(a)(4), which states:

       (A) If a party timely files in the district court any of the following motions under
       the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties
       from the entry of the order disposing of the last such remaining motion:

       ...

       (iv) to alter or amend the judgment under Rule 59;

       ...

       (vi) for relief under Rule 60 if the motion is filed no later than 28 days after the
       judgment is entered.

Fed. R. App. P. 4(a)(4) (emphasis added). Rule 4’s deadlines for filing are jurisdictional, and a

party’s failure to abide by them may therefore be raised at any time while the appeal is pending.

Bowles v. Russell, 551 U.S. 205, 213 (2007).

       In its brief before this Court, MERS argues that we should dismiss this appeal for lack of

jurisdiction because Plaintiffs’ notice was untimely filed. We agree. The district court entered

its final judgment dismissing Plaintiffs’ quiet title claim against MERS on March 18, 2010.

Plaintiff’s April 6, 2010 motion for reconsideration was timely filed, and therefore extended the

deadline for filing an appeal until 30 days after the district court entered a ruling on that motion.

Fed. R. App. P. 4(a)(4)(A). The district court denied Plaintiffs’ motion for reconsideration on

May 11, 2010, thus extending the deadline for filing an appeal to June 11, 2010.

       Contrary to Plaintiffs’ May 18, 2010 “request for ruling,” the district court’s May 11,

2010 order completely disposed of Plaintiffs’ motion for reconsideration by finding that

Plaintiffs’ had failed to establish entitlement to relief under Rules 59 and 60. Thus, the district


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court was correct to construe Plaintiffs’ May 18, 2010 “request for ruling” as an untimely second

motion to reconsider. Untimely motions to reconsider do not toll the time for filing an appeal.

Fed. R. App. P. 4(a)(4). Moreover, motions to join or substitute parties are not among those that

toll the time for filing an appeal. See Fed. R. App. P. 4(a)(4)(A)(i)–(vi). Thus, under any

circumstance, Plaintiffs’ deadline for filing an appeal was June 11, 2010—30 days after the

denial of their first motion for reconsideration. Because Plaintiffs filed the instant appeal on

August 12, 2010, the appeal is untimely, and this Court lacks jurisdiction to hear it.

       In their reply brief before this Court, Plaintiffs argue that this jurisdictional issue “could

have and should have been raised in the five (5) years for which the case has been pending.”

(Pls.’ Reply. Br. at 7.) As noted above, however, Rule 4’s timeliness requirement acts as a

restriction on our jurisdiction, and may therefore be raised at any point during the proceedings.

Bowles, 551 U.S. at 213 (“because [appellant’s] error is one of jurisdictional magnitude, he

cannot rely on forfeiture or waiver to excuse his lack of compliance with [Rule 4’s] time

limitations”).

                                         CONCLUSION

       Because Plaintiffs’ appeal is untimely, this Court lacks jurisdiction to hear it. The appeal

is therefore DISMISSED.




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