Dalenko v. Stephens et al

Filing 228

ORDER denying 207 Motion to Amend/Correct; granting 208 Motion for Extension of Time to File; denying 214 Motion to Reassign Case; denying 215 Motion for Reconsideration; granting 217 Motion to Substitute Last Page of Proposed Order Al lowing Unopposed Rule 60(A) Motion [DE-213-1]; granting 218 Motion for Extension of Time to File; denying 222 Motion to Reassign Case; denying 200 Motion to Clarify Order regarding 194 Order to Substitute Last Page of Proposed Order Allowing Unopposed Rule 60(A) Motion [DE-213-1]; granting 201 Motion for Extension of Time to File. Signed by Chief Judge James C. Dever III on 9/20/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
5:12-CV-122-D

CAROL DALENKO,
Plaintiff,

v.
DONALD W. STEPHENS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

ORDER

On June 8, 2017, this case was reassigned to this court from Senior United States District
Judge James C. Fox, who has taken inactive senior status [D.E. 212]. The court now addresses
several pending motions of plaintiff Carol Dalenko ("Dalenko"). Three ofthe motions ask the court
to extend the time for Dalenko to file memoranda in support of other pending motions. See [D.E.
201]; [D.E. 208]; [D.E. 218]. Dalenko has already filed these memoranda. See [D.E. 203]; [D.E.
209]; [D.E. 219]. The court grants Dalenko' s motions for extension oftime, and has considered her
supporting memoranda.
Dalenko has filed two motions under Rule 60(a) ofthe Federal Rules of Civil Procedure. See
[D.E. 200]; [D.E. 207]. She asks the court to clarify and correct Judge Fox's order denying
Dalenko' s motions to vacate the order of summary judgment in favor of defendants, to stay, and for
sanctions. See [D.E. 194]. Federal Rule of Civil Procedure 60(a) authorizes a court to "correct a
clerical mistake or a mistake arising from oversight or omission whenever one is found in a
judgment, order, or other part ofthe record." "Rule 60(a) applies when the court intended one thing
but by merely clerical mistake or oversight did another." Rhodes v. Hartford Fire Ins. Co., 548 F.

App'x 857, 859 (4th Cir. 2013) (per curiam) (unpublished) (quotation omitted). Under Ru1e 60(a)
a court can

"~orrect

either such mistake to conform the text with its original intent." Sartin v.

McNair Law Finn PA, 756 F.3d 259,266 (4th Cir. 2014). Whether to grant a Ru1e 60(a) motion
rests within the court's discretion. See id. at 265.
Judge Fox's order contains no mistakes or ambiguities that conflict with or obfuscate the
court's original intent. Thus, the court denies the motion. See id. at 265--66; Rhodes, 548 F. App'x
859--60.
Dalenko seeks reconsideration of the court's order denying her motion to vacate the grant of
summary judgment in favor of defendants. See [D.E. 215]. Dalenko does not say under what Ru1e
she seeks reconsideration. There are two possibilities: Ru1e 59(e) and Ru1e 60(b). See Robinson
v. Wix Filtration Cor.p. LLC, 599 F.3d403, 411 (4th Cir. 2010); Inre Burnley, 988 F.2d 1, 2-3 (4th
Cir. 1992) (per curiam). If made under Ru1e 59(e), Dalenko' s motion is untimely because she filed
itmorethan28 days after the court entered judgment. See Fed. R. Civ. P. 59(e) ("Amotion to alter
or amend a judgment must be filed no later than 28 days after the entry of the judgment."). 1 Thus,
the court treats Dalenko's motion as ~sing under Ru1e 60(b). See Burnley, 988 F.2d at 2-3.
The court has considered Dalenko's motion under Rule 60(b). See Fed. R. Civ. P. 60(b);
Robinson, 599 F.3dat411-13; Heyman v. M.L. Mktg. Co., 116 F.3d91, 94 (4thCir. 1997); Dowell
v.. State Fann.Fire & Cas. Auto. Ins. Co., 993 F.2d46, 48 (4th Cir. 1993); Burnley, 988 F.2dat2-3;
.
Wemerv. Carbo, 731 F.2d 204,206--07 (4th Cir. 1984); Compton v. Alton S.S. Co., 608 F.2d 96,
101-03 (4th Cir. 1979). The motion does not meet the governing legal standard and is denied.

1

Alternatively, even if timely, the motion does not meet the governing legal standards under
Ru1e 59(e). See,~, Robinson, 599 F.3d at 407; Zinkand v. BroYrn, 478 F.3d 634, 637 (4th Cir.
2007); Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006); Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co.,
148 F.3d 396,403 (4th Cir. 1998).

2

Dalenko's final two motions request that this case be reassigned to a different judge. See
[D.E. 214]; [D.E. 222]. The court construes these motions as motions to recuse under 28 U.S.C.

§ 455. SeeMosleyv. Tate, No. 3:13-CV-66-RJC,2013 WL653271,at *4 (W.D.N.C. Feb. 21,2013)
(unpublished). The court has reviewed the motions under the governing legal standard. See
Microsoft Com. v. United States, 530U.S.1301, 1301-02(2000)(Rehnquist, C.J.);Litekyv. United
States, 510 U.S. 540, 546-56 (1994); Liljeberg v. Health Servs. Acquisition Cor;p., 486 U.S. 847,
858-61 (1988); Belue

v. Leventhal, 640 F.3d 567, 572-76 (4th Cir. 2011); United States v. Lentz,

524 F.3d 501, 530 (4th Cir. 2008); United States v. Cherzy. 330 F.3d 658, 665-66 (4th Cir. 2003);
United States v. DeTemple, 162 F.3d 279,283-88 (4th Cir. 1998). No basis exists forrecusal, and
the motions are denied.

In sum, the court DENIES plaintiff's motions to clarify and correct [D.E. 200, 207], motions
to reassign the case [D.E. 214, 222], and motion for reconsideration [D.E. 215]. The court GRANTS
plaintiff's motions for extension of time [D.E. 201, 208, 218] and motion to amend her proposed
order [D.E. 217].
SO ORDERED. This to day of September 2017.

SC.DEVERill
J
Chief United States District Judge

3