ASP, Inc., et al v. Holder, et al

Filing 44

ORDER denying 39 Motion for New Trial and Motion to Alter Judgment. Signed by District Judge Terrence W. Boyle on 6/3/2013. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-50-BO
ASP, INC., at al.,
Plaintiffs,
V.

ERIC H. HOLDER, JR., et al.,
Defendants.

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ORDER

This matter is before the Court on the plaintiffs motion to amend, or alter judgment of
this Court issued on December 11,2012, or in the alternative, grant relief from judgment [DE
39]. The plaintiff requests this reconsideration pursuant to Federal Rules of Civil Procedure 59(e)
& 60. For the reasons stated herein, the plaintiffs motion is DENIED.

BACKGROUND
Butechi B. Veeramasuneni is an employee of plaintiff ASP and an immigrant to this
country. Mr. Veeramasuneni sought an employment-based green card to support his presence in
the United States. As employer, ASP participated in this process by submitting an I-140 petition
to United States Citizenship and Immigration Services (USCIS). In December 1, 2011 USCIS
denied ASP's I-140 petition on the grounds that ASP failed to establish its ability to pay Mr.
Veeramasuneni the proffered wage. On February 9, 2012, plaintiffs filed a complaint with this
Court seeking review ofthat denial under the Administrative Procedure Act (APA). Both parties
filed motions for summary judgment in this matter. On December 11, 2012, this Court found that
because plaintiff had failed to exhaust its administrative remedies it did not have subject matter

jurisdiction to consider the issues before it and the matter was dismissed. The plaintiff requested
that the Court reconsider its Order dismissing this matter. The Court declines to do so.
DISCUSSION
The Fourth Circuit has found three grounds for amending a judgment pursuant to Federal
Rule of Civil Procedure 59(e): "(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 or law or prevent
manifest injustice." Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998)(citations omitted). "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." !d. at 403. "Rule 59(e) provides an 'extraordinary remedy that should be used
sparingly."' Richardson v. Union Public Safety Dept. Police, 2011 WL 5314212, *2 (D.S.C.
201l)(quoting Pac. Ins. Co., 148 F.3d at 403). Further, Rule 59(e) does not provide a litigant
with the opportunity to voice his displeasure with the Court's decision or critique the Court's
order. See Crosswhite v. E. I Dupont deNemours & Co., 896 F .2d 1366, *I (4th Cir.
1990)(unpublished).
Here, the plaintiff has failed to adequately present any of the three grounds for relief
under Rule 59(e). Merely restating precedent that the Court has already considered in composing
its prior Order does not support relief under Rule 59(e). Further, the Court finds that no injustice
will arise from allowing its prior order to stand as it is.
The plaintiff also seeks reliefunder Federal Rule of Civil Procedure 60. Rule 60(b)
provides that "[ o]n motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding." The rule then enumerates six circumstances under

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which such relief would be proper. In its briefs, the plaintiff is unclear about which
circumstances exist that would entitle it to relief. In fact, the parties barely refer to the Federal
Rules of Civil Procedure at all. Nevertheless, on the Court's own inquiry no ground exists upon
which Rule 60(b) relief would be appropriate. As the plaintiffhas failed to establish any 'just
terms" that would merit the relief requested the plaintiffs motion is properly denied.
CONCLUSION
For the foregoing reasons, the plaintiffs motion is DENIED.

SO ORDERED, this

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day of June, 2013.

TERRENCE W. BOYLE
UNITED STATES DISTRICT JU

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