UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1622

RICHARD A. RINALDI,

Plaintiff - Appellee,

v.

CCX, INCORPORATED,

Defendant – Appellant,

and

BARRY SILVERSTEIN; DENNIS MCGILLICUDDY,

Defendants.

No. 09-1671

RICHARD A. RINALDI,

Plaintiff - Appellant,

v.

CCX, INCORPORATED,

Defendant – Appellee,

and

BARRY SILVERSTEIN; DENNIS MCGILLICUDDY,

Defendants.
2

Appeals from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:05-cv-00108-RJC-DSC)

Argued: May 13, 2010 Decided: July 16, 2010

Before DUNCAN and KEENAN, Circuit Judges, and Arthur L. ALARCÓN, 

Senior Circuit Judge of the United States Court of Appeals for 

the Ninth Circuit, sitting by designation.

Affirmed in part, reversed in part, and remanded with 

instructions by unpublished opinion. Judge Keenan wrote the 

opinion, in which Judge Duncan and Senior Judge Alarcón joined.

ARGUED: John Robbins Wester, Kate E. Payerle, ROBINSON, BRADSHAW 

& HINSON, PA, Charlotte, North Carolina, for Appellant/CrossAppellee. Kenneth Todd Lautenschlager, JOHNSTON, ALLISON & 

HORD, Charlotte, North Carolina, for Appellee/Cross-Appellant. 

ON BRIEF: John C. Lindley III, JOHNSTON, ALLISON & HORD, 

Charlotte, North Carolina, for Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.
3

KEENAN, Circuit Judge:

This is an appeal of a judgment entered after a bench trial 

in an action brought under the Employee Retirement Income 

Security Act (ERISA), 29 U.S.C. §§ 1001-1461. The defendant, 

CCX, Inc. (CCX), appeals from the district court’s award of 

severance benefits to Richard Rinaldi, CCX’s former president 

and chief executive officer (CEO). Rinaldi has filed a crossappeal, primarily challenging the district court’s denial of his 

request for attorneys’ fees and costs. For the reasons stated 

below, we affirm the district court’s award of severance 

benefits and its order denying Rinaldi’s request for attorneys’ 

fees. However, we reverse the district court’s order denying 

Rinaldi’s request for costs and remand the case for 

reconsideration of an award of costs.

I.

The evidence at trial showed that CCX, a privately held 

Delaware corporation, manufactures metal and fiberglass 

screening mesh for use in windows, doors, and other building 

products. In May 1991, CCX hired Rinaldi as its president and 

CEO. Almost three years later, Rinaldi and CCX entered into the 

“First Amendment to Employment Agreement” (the Employment 

Agreement), which remained in effect during the remainder of 

Rinaldi’s employment with CCX. The Employment Agreement 
4

provided that Rinaldi was entitled to certain severance 

benefits, including salary, term life insurance, and medical 

insurance, if his employment was terminated involuntarily 

“[o]ther than for cause,” or if CCX sold substantially all its 

assets.

As CEO, Rinaldi was required to “report and be responsible 

to” CCX’s board of directors. Dennis McGillicuddy was the 

chairman of the board, which included Rinaldi and three other 

directors. According to McGillicuddy, Rinaldi “had done an 

exceptional job running the company.”

In early 2004, CCX began efforts to sell its Mesh Division, 

a business unit that represented about ninety percent of CCX’s

assets and employed a majority of the company’s personnel. 

Rinaldi sent McGillicuddy a letter stating that a sale of the 

Mesh Division would activate the terms of the Employment 

Agreement granting Rinaldi severance benefits, if he chose to 

end his employment on completion of the sale. Despite 

McGillicuddy’s understanding that Rinaldi likely would leave CCX

and be entitled to severance benefits if the Mesh Division were 

sold, CCX proceeded with its plans to sell that unit.

Rinaldi led CCX’s negotiating team for the sale of the Mesh 

Division. He was assisted in his efforts by McGillicuddy and 

Barry Silverstein, who owned a total of eighty percent of CCX’s
5

stock. McGillicuddy and Silverstein also hired other persons to 

help Rinaldi effect a sale.

By October 2004, a conflict had developed between Rinaldi 

and other members of the negotiating team regarding Rinaldi’s 

negotiating tactics and strategic approach. One team member

informed McGillicuddy and Silverstein about concerns regarding 

Rinaldi’s approach, and suggested that Rinaldi be removed as 

lead negotiator or be discharged from the company.

The tension between Rinaldi and other members of CCX’s 

leadership culminated in an October 6, 2004 telephone 

conversation involving McGillicuddy, Silverstein, and Rinaldi. 

During this conversation, Silverstein told Rinaldi that he was 

not satisfied with Rinaldi’s efforts to sell the Mesh Division. 

The parties dispute the exact words of Rinaldi’s response,1

 1 Rinaldi testified that he stated, “[i]f you don’t have 

confidence in me, fine, I’m not involved [with the sale],” while 

Silverstein recalled Rinaldi responding that “[i]f they were 

trying to force Jim Shein [a possible replacement for Rinaldi as 

lead negotiator for the sale] on him he was out of there.” All 

the parties agreed that Rinaldi never used the words “I quit” or 

“I resign” during this telephone conversation.

but 

McGillicuddy and Silverstein allegedly understood Rinaldi’s 

statement as announcing his resignation. McGillicuddy and 

Silverstein immediately drafted severance documents reflecting 

Rinaldi’s purported action. The locks on the doors of CCX’s
6

headquarters were changed the next day, and Rinaldi was denied 

entry to his office.

Following the telephone conversation at issue, Rinaldi

repeatedly stated that he had not resigned, and he took 

immediate steps to correct any possible misunderstanding to the 

contrary. Nevertheless, CCX denied Rinaldi severance benefits 

based on CCX’s determination that he voluntarily ended his 

employment.

Rinaldi filed a complaint against CCX in the district 

court, initially alleging breach of contract and a violation of 

the North Carolina Wage and Hour Act, N.C.G.S. §§ 95-25.1 to –

25.25. The district court later entered an order converting

Rinaldi’s state law claims to an ERISA claim, pursuant to Singh 

v. Prudential Health Care Plan, Inc., 335 F.3d 278, 290 (4th 

Cir. 2003).

The case proceeded to a bench trial, in which CCX raised 

two main issues: (1) whether Rinaldi voluntarily resigned or was 

terminated from his employment without cause; and (2) if Rinaldi 

was discharged, whether his employment otherwise would have been 

terminated for misconduct because of his questionable travel 

reimbursement requests allegedly discovered after his departure.2

 2 In this opinion, we will refer to this concept as the 

“after-acquired evidence” defense.
7

After hearing the testimony of several witnesses, including 

testimony by Rinaldi, McGillicudy, and Silverstein, the district 

court found that Rinaldi did not resign voluntarily but was 

terminated from his employment. The district court concluded 

that even under McGillicuddy and Silverstein’s version of the 

October 6, 2004 telephone conversation, Rinaldi’s statement did 

not constitute an offer of resignation. Moreover, the district 

court reasoned, Rinaldi’s conduct following that phone call, as 

well as the financial motivations of McGillicudy and 

Silverstein, supported the conclusion that Rinaldi was 

involuntarily terminated from his employment.

Critically, in deciding the issue whether Rinaldi departed 

voluntarily, the district court found that “several aspects of 

Silverstein and McGillicuddy’s testimony [were] not credible.” 

The district court also found that McGillicuddy and Silverstein 

“seized upon an opportunity to remove” Rinaldi once they

concluded that the sale of the Mesh Division could occur more 

quickly without Rinaldi’s involvement. In finding the testimony 

of McGillicuddy and Silverstein not credible, the district court 

relied in part on its observation of these witnesses’ demeanor 

while testifying, as well as the district court’s conclusion 

that McGillicuddy and Silverstein’s version of the events was 

implausible.
8

After rejecting CCX’s contention that Rinaldi resigned 

voluntarily, the district court considered CCX’s after-acquired 

evidence defense. According to CCX, it first became aware 

during discovery in this case that Rinaldi sometimes used 

“frequent flyer miles” for business travel, but later sought and 

obtained cash reimbursement from CCX for the listed cost of 

those trips. Rinaldi engaged in this practice seventeen times 

during his six-year tenure as CEO, and received about $22,000 in 

“reimbursements” for alleged expenses that he did not actually 

incur.

Rinaldi testified that he selectively used his frequent 

flyer miles in this manner for “very rich reward situation[s],” 

such as expensive flights from Charlotte, North Carolina to 

Pittsburgh, Pennsylvania. For ten such trips between Charlotte 

and Pittsburgh, Rinaldi sought cash reimbursement from CCX 

despite having used frequent flier miles, and received, on 

average, $877.42 for each of these trips. Rinaldi also used 

frequent flyer miles, but sought cash reimbursement, for trips 

to Milan, Italy, and Cologne, Germany, obtaining reimbursements 

of $4,089.37 and $5,226.55, respectively.

Rinaldi did not dispute that he engaged in this practice, 

but instead claimed that he discussed the practice with company 

auditors and with CCX’s Chief Financial Officer (CFO). However, 

Rinaldi did not report these payments as taxable income to the 
9

Internal Revenue Service (IRS). After reviewing this evidence, 

the district court found that Rinaldi’s “frequent flyer scheme 

is dishonest on its face.” The district court also rejected 

Rinaldi’s explanation regarding why he did not report this 

income to the IRS, finding Rinaldi’s testimony on this issue 

“not credible.”

Upon agreement of the parties, the district court applied a 

test requiring that CCX prove its claim of after-acquired

evidence by establishing the following three elements:

(1) Rinaldi was guilty of some misconduct of which CCX 

was unaware;

(2) the misconduct constitutes “acts of dishonesty” in 

connection with CCX’s business, “gross neglect” of his 

obligations, or “illegal acts;” and

(3) []CCX would have discharged Rinaldi for cause had 

it known of the misconduct.

The district court held that CCX failed to establish the 

first and third elements of this test. The district court 

concluded that CCX failed to prove the first element, because 

CCX did not show that it was unaware of Rinaldi’s travel 

reimbursement requests before CCX discharged him. The district 

court based this conclusion on its finding that the CFO had 

knowledge of Rinaldi’s travel reimbursement requests, and that 

the CFO’s knowledge was imputed to CCX.

The district court also held that CCX failed to prove the 

third element, because CCX did not show that it would have 

terminated Rinaldi’s employment had it been aware of his travel 
10

reimbursement scheme. In reaching this conclusion, the district 

court made the following credibility determination: 

“McGillicuddy’s testimony alone is insufficient to establish the 

third [element]. The Court was not persuaded by the selfserving statements of McGillicuddy that had he known of the 

misconduct, he would have terminated Rinaldi for cause.”3

The district court entered final judgment in favor of 

Rinaldi, awarding damages totaling $880,000.00, and prejudgment 

interest in the amount of $140,221.25. The district court also

denied Rinaldi’s requests for attorneys’ fees and costs. This 

appeal and cross-appeal followed.

II.

We review the district court’s factual findings for clear 

error, and we afford the “highest degree of appellate deference” 

to those factual findings when they are based on assessments of 

 3 In further support of its conclusion, the district court 

noted that CCX’s bylaws provide the mechanism for removal of 

corporate officers. Under the bylaws, the district court 

observed, Rinaldi’s wrongdoing was required to have been 

presented to the board of directors before Rinaldi could have 

been terminated from his employment. However, Rinaldi’s conduct 

was not presented to the board at any time. Additionally, the 

district court found significant the fact that CCX did not 

terminate its CFO, even though CCX had been made aware that the 

CFO knew about Rinaldi’s misconduct. Thus, the district court 

reasoned, CCX’s decision retaining the CFO rendered implausible 

CCX’s claim that it would have discharged Rinaldi for engaging 

in the conduct at issue.
11

witness credibility. United States v. Thompson, 554 F.3d 450, 

452 (4th Cir. 2009) (applying Fed. R. Civ. P. 52(a)(1)(6)). We 

review the district court’s legal conclusions de novo. NelsonSalabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 512 (4th 

Cir. 2002).

CCX does not challenge on appeal the district court’s 

holding that Rinaldi was terminated involuntarily from his 

employment. Instead, CCX solely argues that the district court 

erroneously concluded that CCX failed to establish its afteracquired evidence defense.

Although we have not previously considered an afteracquired evidence defense in an ERISA case, we have considered 

this defense in other types of civil cases. In our decisions in 

those cases, we have applied a three-part test that is 

essentially the same as the test employed here by the district 

court. See, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 298 

(4th Cir. 2009) (involving alleged violations of the Family and 

Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654); Miller v. 

AT&T Corp., 250 F.3d 820, 837 (4th Cir. 2001) (same); Russell v. 

Microdyne Corp., 65 F.3d 1229, 1240 (4th Cir. 1995) (involving 

alleged violations of Title VII of the Civil Rights Act of 1964, 

42 U.S.C. §§ 2000e-2000e-17). The three-part test used by the

district court also is essentially the same as the Supreme 

Court’s test for after-acquired evidence set forth in McKennon 
12

v. Nashville Banner Publishing Co., 513 U.S. 352, 362-63 (1995), 

a case arising under the Age Discrimination in Employment Act of 

1967 (ADEA), 29 U.S.C. §§ 621-634.

The parties do not dispute the applicability of this test. 

Therefore, in reviewing the district court’s holding that CCX 

failed to establish the first and third elements of the afteracquired evidence test, we must determine whether the district 

court clearly erred in finding that CCX failed to establish 

that:

(1) Rinaldi was guilty of some misconduct of which CCX 

was unaware; [and]

. . .

(3) []CCX would have discharged Rinaldi for cause had 

it known of the misconduct.

CCX was required to prove every element of its defense in 

order to prevail. Because we conclude that the district court 

did not err in finding that CCX failed to establish element 

three above, we need not review the district court’s finding on

element one.

With regard to element three, the district court found that 

Rinaldi’s travel reimbursement requests were “dishonest on 

[their] face.” We decline to disturb this factual finding.4

 4 We reject Rinaldi’s argument that the district court erred 

in concluding, under the second element of the after-acquired 

evidence test, that the travel reimbursement scheme was 

 The 

(Continued)
13

grounds for termination for cause stated in the Employment 

Agreement include “[a]cts of dishonesty (including but not 

limited to theft or embezzlement) in connection with the 

Company’s business.” Therefore, the conduct at issue plainly 

was a ground for termination with cause under the Employment 

Agreement.

Although CCX proved that it could have discharged Rinaldi

under the Employment Agreement, CCX also was required to prove 

that it would have done so. In concluding that CCX did not 

prove that it would have discharged Rinaldi had it known of his 

dishonest conduct, the district court was influenced by its 

opinion of the witnesses’ credibility. The district court was 

not persuaded by “the self-serving statements of McGillicuddy 

that had he known of the misconduct, he would have terminated 

 

“dishonest.” Rinaldi’s primary contention is that subjective 

dishonesty is required, and that his acts cannot be labeled

dishonest because he lacked the intent to deceive. This 

argument lacks merit, because the Employment Agreement prohibits 

“acts of dishonesty,” and does not limit such acts to those 

involving subjective intent on the part of the actor. Further, 

even if the language at issue encompassed only acts of 

subjective dishonesty, there is ample evidence in the record 

that Rinaldi’s travel reimbursement requests were subjectively 

dishonest. As the district court observed, Rinaldi did not 

report the airfare reimbursements as taxable income, and the 

court found his explanation for failing to do so not credible. 

Also, Rinaldi’s own testimony showed that he selectively used 

his frequent flyer miles for “very rich reward situation[s]” and 

high-value flights.
14

Rinaldi for cause.” Thus, the district court simply did not 

believe that Rinaldi’s actions would have caused CCX to 

discharge him. Because the district court’s conclusion was 

informed by its opinion that McGillicuddy lacked credibility, 

that conclusion is entitled to the “highest degree of appellate 

deference.” Thompson, 554 F.3d at 452 (citing Fed. R. Civ. P.

52(a)(1)(6)). For this reason, we will not disturb the district 

court’s determination, and we hold that the district court did 

not err in concluding that CCX failed to establish the third 

required element of the after-acquired evidence defense. We 

therefore affirm the district court’s holding that Rinaldi was 

entitled to severance benefits under the Employment Agreement.

Our holding is not altered by CCX’s additional argument 

that the district court impermissibly burdened McGillicuddy’s 

testimony with a “heavy cloak of skepticism” in violation of our 

decision in Smallwood v. United Air Lines, Inc., 728 F.2d 614 

(4th Cir. 1984). We conclude that this argument lacks merit.

In Smallwood, a case decided under the ADEA, we held that 

the district court erred in rejecting an employer’s “after-thefact rationale” based on the district court’s statement that it 

had a “duty” to view the employer’s “after-the-fact” evidence 

with skepticism. Id. at 623. We emphasized that the district 

court “made no specific findings of fact of [its] own” on the 

after-acquired evidence issue and doubted whether the after-
15

acquired evidence was admissible. Id. We explained that, 

rather than burdening such “after-the-fact” evidence with a 

“heavy cloak of skepticism,” courts should weigh this type of 

evidence by the same standards as other testimony. Id.

This principle expressed in Smallwood, however, is 

inapposite to the facts of this case. Although the district 

court characterized McGillicuddy’s testimony as “self-serving,” 

the district court did not “burden” such testimony with 

skepticism or otherwise hold CCX to a higher standard of proof. 

Instead, unlike the district court in Smallwood, the district 

court here made specific factual findings, supported by the 

record, that justified its application of the after-acquired 

evidence doctrine. Moreover, any degree of skepticism expressed 

by the district court likely was derived in part from its

express findings that McGillicuddy lacked credibility on other 

key issues.5

 5 CCX additionally contends, however, that the credibility 

concerns of the district court relating to McGillicuddy’s 

testimony on the “terminated or resigned” issue are not before 

us, because CCX has not appealed from the court’s holding on 

that issue. We reject this argument, because it effectively 

asks us to ignore the numerous occasions throughout the district 

court’s opinion in which the court expressly found that 

McGillicuddy was not a credible witness.

 Therefore, we conclude that the district court, 

consistent with our decision in Smallwood, considered the 

testimony relating to CCX’s after-acquired evidence defense 
16

according to the same standards that the district court applied 

throughout the trial.

III.

Next, we address the remaining issues raised by Rinaldi in 

his cross-appeal.6

A.

 Rinaldi argues that the district court erred 

in denying his requests for attorneys’ fees and costs. We 

address these issues separately.

As we stated in Williams v. Metropolitan Life Insurance 

Co., a district court in an ERISA action may, in its discretion, 

award reasonable attorneys’ fees to either party under 29 U.S.C. 

§ 1132(g)(1), if that party has achieved “‘some degree of 

success on the merits.’” ___ F.3d ___, No. 09-1025, slip op. at 

17-18 (4th Cir. June 30 2010) (quoting Hardt v. Reliance Std. 

Life Ins. Co., No. 09-448, ___ U.S. ___, 130 S.Ct. 2149, 2152 

(2010)). We review a district court’s award of attorneys’ fees 

to an eligible litigant to determine whether the court has 

abused its discretion. Williams, ___ F.3d at ___, slip op. at 

17; Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d 212, 221 

(4th Cir. 2005). The district court’s factual findings in 

 6 As discussed previously, we reject Rinaldi’s argument that 

the district court erred in concluding that Rinaldi’s travel 

reimbursement requests were “dishonest on [their] face.”
17

support of such an award are reviewed for clear error. 

Williams, __ F.3d at __, slip op. at 17; Hyatt v. Shalala, 6 

F.3d 250, 255 (4th Cir. 1993).

As required by the decision in Hardt, we first consider 

whether Rinaldi achieved “some degree of success on the merits” 

in the district court. Because the district court found in 

Rinaldi’s favor and awarded him the severance benefits due under 

the Employment Agreement, we conclude that Rinaldi was eligible 

for an award of attorneys’ fees. See Hardt, ___ U.S. at ___, 

130 S.Ct. at 2158.

Although Rinaldi was eligible for an award of reasonable 

attorneys’ fees, the district court retained the discretion to 

decline to award Rinaldi such fees. In Williams, we restated 

the familiar guidelines that assist a district court’s 

discretionary determination whether attorneys’ fees should be 

awarded to an eligible litigant. These guidelines include the 

following five factors:

(1) degree of opposing parties’ culpability or bad 

faith;

(2) ability of opposing parties to satisfy an award of 

attorneys’ fees;

(3) whether an award of attorneys’ fees against the 

opposing parties would deter other persons acting 

under similar circumstances;

(4) whether the parties requesting attorneys’ fees 

sought to benefit all participants and beneficiaries

of an ERISA plan or to resolve a significant legal 

question regarding ERISA itself; and

(5) the relative merits of the parties’ positions.
18

Williams, __ F.3d at __, slip op. at 19 (quoting Quesinberry v. 

Life Ins. Co. of N. Am., 987 F.2d 1017, 1029 (4th Cir. 1993) (en 

banc)).

In the present case, the district court considered these 

factors, and concluded that Rinaldi should not be awarded 

attorneys’ fees. We disagree with Rinaldi’s contention that the 

district court misapplied these factors.

Initially, we observe that these factors provide “general 

guidelines,” rather than a “rigid test.” Williams, ___ F.3d at 

___, slip op. at 19; Quesinberry, 987 F.2d at 1029. In

determining whether to award Rinaldi attorneys’ fees, the 

district court was entitled to consider the fact that Rinaldi 

had engaged in some dishonest conduct to the prejudice of his 

employer, CCX. The district court also was permitted to 

consider the fact that because the Employment Agreement was 

drawn uniquely for Rinaldi, there were no other members of that

plan who could have derived a benefit from Rinaldi’s legal 

action. Further, because the plan was unique to Rinaldi, the 

deterrent value that an award of attorneys’ fees would have for 

“other persons acting under similar circumstances” was less 

significant. Finally, the district court correctly concluded 

that there was no “significant legal question regarding ERISA 

itself” at issue.
19

In light of these considerations, we cannot conclude that 

the district court abused its discretion in declining to award 

Rinaldi attorneys’ fees. We therefore affirm the district 

court’s holding denying Rinaldi’s request.

B.

We next address Rinaldi’s argument that the district court 

erred in denying his request for costs. We agree with Rinaldi

that there is a presumption in favor of awarding costs to a 

prevailing party. Under Rule 54(d)(1) of the Federal Rules of 

Civil Procedure, costs “should be allowed to the prevailing 

party” unless a federal statute provides otherwise. See Cherry 

v. Champion Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999). As 

we stated in Williams, the ERISA statute does not alter this 

general rule in favor of presumptively awarding fees to the 

prevailing party, and instead expressly permits a district court 

to award costs in the court’s discretion. ___ F.3d at ___, slip 

op. at 22 (citing 29 U.S.C. § 1132(g)(1)). We therefore agree 

with Rinaldi’s argument that he was entitled to a presumption in 

favor of costs.

We observe that the district court did not afford Rinaldi 

this presumption. We also note that the district court did not 

conduct a separate analysis in declining to award Rinaldi costs. 

Instead, the district court analyzed the appropriate standard 

for an award of attorneys’ fees, concluded that Rinaldi was not 
20

entitled to attorneys’ fees, and then summarily rejected 

Rinaldi’s request for costs. The district court’s treatment of 

Rinaldi’s request for costs, therefore, conflicts with our 

holding in Teague v. Bakker, in which we stated that if a 

district court chooses to depart from the general rule favoring 

an award of costs to the prevailing party, the court must 

justify its decision by “articulating some good reason for doing 

so.” 35 F.3d 978, 996 (4th Cir. 1994) (citations omitted). 

Because the district court did not state any reason for its 

decision, we reverse the district court’s holding denying

Rinaldi’s request for an award of costs, and remand the case to 

the district court for reconsideration of Rinaldi’s request in 

light of the standard that we have discussed here.

IV.

For these reasons, we reverse the part of the district 

court’s judgment denying Rinaldi an award of costs, and remand
21

the case to the district court for reconsideration of that 

issue. We affirm the balance of the district court’s judgment.7

AFFIRMED IN PART,

REVERSED IN PART, AND 

REMANDED WITH INSTRUCTIONS

 7 Rinaldi has also requested an award of reasonable 

attorneys’ fees and costs that he incurred in responding to 

CCX’s appeal and in pursuing his cross-appeal. We observe that 

Rinaldi has failed to comply with the requirements of Federal 

Rule of Appellate Procedure 39(d) and Local Rules 39(b) and 

46(e). Accordingly, we decline to consider Rinaldi’s requests 

at this time.