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CVLR Performance Horses, Inc. v. Wynne

United States Court of Appeals, Fourth Circuit

July 9, 2015

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. 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

Argued March 25, 2015

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

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.

Before SHEDD, WYNN, and DIAZ, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Shedd and Judge Wynn joined.

OPINION

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 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 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 ...


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