Felix v. Doughtie et al

Filing 53

ORDER denying 48 Motion for Reconsideration. Signed by District Judge Louise Wood Flanagan on 7/19/2021.A copy of this Order was sent via US mail to Daniel Felix, P. O. Box 544, Frisco, NC 27936-0544 (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:21-CV-7-FL

DANIEL FELIX; HOMELESS CATS OF
HATTERAS ISLAND, NC; and NONPROPERTY ANIMALS OF HATTERAS
ISLANDS NC,
Plaintiffs,
v.
DOUG DOUGHTIE, Sheriff in his official
and individual capacity; DONAVAN
RUTH, in his official and individual
capacity; DARE COUNTY, NORTH
CAROLINA; ROBERT OUTTEN, Dare
County Attorney, in his official and
individual capacity; ROBERT
WOODARD, Dare County Board of
Commissioner Chairman, in his official
capacity and individual capacity; WALLY
OVERMAN, Dare County Board of
Commissioner Vice Chairman, in his
official and individual capacity; ROB
ROSS, Dare County Board of
Commissioner, in his official capacity and
individual capacity; STEVE HOUSE, Dare
County Board of Commissioner, in his
official capacity and individual capacity;
JIM TOBIN, Dare County Board of
Commissioner, in his official capacity and
individual capacity; DANNY COUCH,
Dare County Board of Commissioner, in
his official capacity and individual
capacity; ERVIN BATEMAN, Dare
County Board of Commissioner, in his
official capacity and individual capacity;
ANDREW WOMBLE, District Attorney,
in his official capacity and individual
capacity;

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER

Case 2:21-cv-00007-FL Document 53 Filed 07/19/21 Page 1 of 5

JEFF CRUDEN, District Attorney, in his
official capacity and individual capacity;
JENNIFER BLAND, District Attorney, in
her official capacity and individual
capacity; JOSH STEIN, NC Attorney
General, in his official capacity and
individual capacity; ROY COOPER, NC
Governor, in his official capacity and
individual capacity; GOVERNOR
MCCRORY, NC Governor, in his official
capacity and individual capacity,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

This matter comes before the court on plaintiff Daniel Felix’s motion for rehearing,1
pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure. (DE 48). For the following
reasons, upon careful consideration of the motion and the record in this case, the motion is denied.
BACKGROUND
The court summarizes the background of this case relevant to the instant motion. Plaintiff,
proceeding pro se, initiated suit on February 8, 2021. On March 15, 2021, defendants Ervin
Bateman, Danny Couch, Dare County, North Carolina, Doug Doughtie, Steve House, Robert
Outten, Wally Overman, Rob Ross, Donavan Ruth, Jim Tobin, and Robert Woodard filed motion
to dismiss. On April 16, 2021, defendants Jennifer Bland, Jeff Cruden, and Andrew Womble filed
motion to dismiss. On April 19, 2021, defendants Joshua H. Stein, Roy Cooper, and Governor
McCrory filed motion to dismiss.
On June 8, 2021, the court granted all defendants’ motions to dismiss. Judgment was filed
and entered that same day. On June 18, 2021, plaintiff filed instant motion seeking a rehearing on

1

For the reasons stated in the court’s order dated June 8, 2021, the court treats the instant motion as only
effective as to plaintiff Daniel Felix, rather than the other, animal plaintiffs. See Felix v. Doughtie, No. 2:21-CV-7FL, 2021 WL 2345252, at *3-4 (E.D.N.C. June 8, 2021). Therefore, for ease of reference, the court refers to plaintiff
in the singular to mean plaintiff Daniel Felix.

2
Case 2:21-cv-00007-FL Document 53 Filed 07/19/21 Page 2 of 5

the court’s order, citing Federal Rules of Civil Procedure 59 and 60. On July 2, 2021, plaintiff
filed notice of appeal of the court’s June 8, 2021, order.
COURT’S DISCUSSION
A.

Jurisdiction
“Generally, a timely filed notice of appeal transfers jurisdiction of a case to the court of

appeals and strips a district court of jurisdiction to rule on any matters involved in the appeal.”
Doe v. Pub. Citizen, 749 F.3d 246, 258 (4th Cir. 2014). “[A] district court is authorized, under the
in aid of appeal exception [to this general rule], to entertain” certain post-judgment motions “after
a party appeals the district court’s judgment.” See Fobian v. Storage Tech. Corp., 164 F.3d 887,
890 (4th Cir. 1999). Accordingly, “when a party files a timely notice of appeal followed by a
timely Rule 59 motion, the notice of appeal is tolled and does not become effective to confer
jurisdiction on the court of appeals until the entry of an order disposing of the Rule 59 motion.”
United States v. Silvers, 90 F.3d 95, 98 (4th Cir. 1996); see also Fed. R. App. P. 4(a)(1) (guiding
that a “notice of appeal becomes effective to appeal a judgment or order . . . when the order
disposing of . . . [a Rule 59] motion is entered”); Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 59 (1982) (“[I]n order to prevent unnecessary appellate review, the district court was
given express authority to entertain a timely motion to alter or amend the judgment under Rule 59,
even after a notice of appeal had been filed.”).
Further, the court construes plaintiff’s motion as arising solely under Rule 59(e), rather
than Rule 60(b), because it was filed within 10 days of the court’s final judgment and challenges
the correctness of that judgment. See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978) (“[I]f
a post-judgment motion is filed within 10 days of the entry of judgment and calls into question the
correctness of that judgment it should be treated as a motion under Rule 59(e) . . . .”); see also
3
Case 2:21-cv-00007-FL Document 53 Filed 07/19/21 Page 3 of 5

Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 412 n.11 (4th Cir. 2010) (explaining that
although the Federal Rules of Civil Procedure have been subsequently amended, “CODESCO
remains binding precedent”).
In sum, the court concludes it has jurisdiction to dispose of plaintiffs’ motion, but it treats
such motion as only arising under Rule 59(e).
B.

Merits
Rule 59 allows “[a] motion to alter or amend a judgment . . . no later than 28 days after the

entry of the judgment.” Fed. R. Civ. P. 59(e). “[T]here are three grounds for amending an earlier
judgment: (1) to accommodate an intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.”
Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). “Rule 59(e) motions
may not be used, however, to raise arguments which could have been raised prior to the issuance
of the judgment, nor may they be used to argue a case under a novel legal theory that the party had
the ability to address in the first instance.” Id. Finally, to qualify for the third category, the
judgment and related order “must be dead wrong.” Cf. TFWS, Inc. v. Franchot, 572 F.3d 186, 194
(4th Cir. 2009).
Here, the court’s review of plaintiff’s motion finds only arguments which could have been
raised prior to issuance of judgment, (see, e.g., Pl.’s Mot. (DE 48) at 8 (raising an emotional-harmcaused-by-animal-deaths theory of injury); id. at 14 (raising additional arguments of
unconstitutional policies by Dare County Commissioner defendants)), arguments regarding novel
legal theories, (see, e.g., id. at 13 (raising a legal theory of “hostile living environment”)), or
challenges to legal conclusions related to the judgment that the court concludes are not “dead
wrong.” (See, e.g. id. at 6 (arguing that “Due Process Of Law rights guarantee these animals have

4
Case 2:21-cv-00007-FL Document 53 Filed 07/19/21 Page 4 of 5

a right to bring a lawsuit just the same as a person”); id. at 11-12 (expounding further on plaintiff’s
theory of ongoing harm that would negate claim preclusion)). Accordingly, plaintiff’s motion
raises grounds beyond the scope of the remedy provided by Rule 59(e) and cannot be granted by
the court.
CONCLUSION
Based on the foregoing, the court DENIES plaintiff’s motion. (DE 48).
SO ORDERED, this the 19th day of July, 2021.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

5
Case 2:21-cv-00007-FL Document 53 Filed 07/19/21 Page 5 of 5