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,
2

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.
3

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 
4

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 complaint1 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. 
5

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 
6

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 
7

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 
8

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 

 2 The 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). 
9

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.
10

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) 
11

(“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. 
12

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, 
13

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 
14

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. 
15

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 
16

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 
17

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