UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-2334

ROBIN M. LAWLER,

Plaintiff - Appellant,

versus

AMERICAN BUILDING CONTRACTORS, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Gerald Bruce Lee, District

Judge. (CA-03-1514-1)

Submitted: August 12, 2005 Decided: August 26, 2005

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robin M. Lawler, Appellant Pro Se. Ingo Frank Burghardt, Courtney

Renee Sydnor, HUNTON & WILLIAMS, L.L.P., McLean, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Robin M. Lawler filed a complaint against her former

employer, American Building Contractors, Inc. (“ABC”), claiming

defamation and failure by ABC to provide Lawler with proper notice

of her rights under the Employee Retirement Income Security Act, 29

U.S.C. §§ 1001-1168 (2000) (“ERISA”), as amended by the

Consolidated Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161-

69 (2000) (“COBRA”). The district court granted ABC’s motion for

summary judgment and denied Lawler’s Fed. R. Civ. P. 59(e) motion

for reconsideration. We have reviewed the record and find no

reversible error. 

Lawler claims the district court erred by dismissing her

Rule 59(e) motion because the deposition of critical witness Chris

Kulik was unavailable prior to the entry of judgment. We review

the denial of a Rule 59(e) motion for an abuse of discretion.

Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 653 (4th

Cir. 2002). Lawler had ample time to find Kulik before she filed

her claim and during discovery. The district court was extremely

patient with Lawler and gave her numerous opportunities to find

Kulik. The district court was well within its discretion to grant

ABC’s summary judgment motion and deny Lawler’s Rule 59(e) motion.

Lawler next claims her counsel provided ineffective

assistance. However, a litigant in a civil action has no

constitutional or statutory right to effective assistance of
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counsel. Sanchez v. United States Postal Serv., 785 F.2d 1236,

1237 (5th Cir. 1986). The appropriate avenue for raising such a

claim is a malpractice suit. Accordingly, we do not consider

Lawler’s ineffective assistance of counsel claim.

Lawler claimed the district court erred when it granted

summary judgment for ABC because ABC did not give her proper notice

of her COBRA rights when it discontinued her health care coverage

after Lawler and ABC had settled Lawler’s prior lawsuits following

her termination of employment. We review de novo a district

court’s order granting summary judgment. Price v. Thompson, 380

F.3d 209, 212 (4th Cir. 2004). Under COBRA, a qualified

beneficiary under a group health plan who will lose coverage is

entitled to notice of his or her right to elect continuation

coverage upon the occurrence of a qualifying event. 29 U.S.C. §

1166(a)(4) (2000). The loss of health care coverage in these

circumstances is not a qualifying event under 29 U.S.C.A. § 1163

(2000), and ABC was under no obligation to notify Lawler of her

COBRA rights. The district court did not err when it found that

the settlement agreement was not a qualifying event requiring COBRA

notification, and accordingly the court correctly denied relief on

Lawler’s ERISA claim.

Lawler claimed ABC prevented her from deposing Kulik, and

Kulik acted illegally in evading deposition. Lawler did not make

either claim to the district court. Claims raised for the first
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time on appeal will not be considered by this court absent

exceptional circumstances. Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993). Lawler did not present exceptional circumstances

because none of the evidence upon which she now relies is in the

record. A party may not raise a claim on appeal relating to

evidence that is not part of the record. United States v. Russell,

971 F.2d 1098, 1112 (4th Cir. 1992).

Lawler also claimed that the district court erred by

dismissing contract claims unrelated to Kulik. Lawler did not make

any contract claims to the district court that did not involve

Kulik. As Lawler did not raise these claims in the district court

and provided no facts or argument warranting a finding of

exceptional circumstances, we do not consider these claims. Muth,

1 F.3d at 250.

Accordingly, we affirm the district court’s orders

granting ABC’s motion for summary judgment and denying Lawler’s

Rule 59(e) motion. We also deny ABC’s motion to dismiss for

failure to prosecute. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED