State of North Carolina v. Alcoa Power Generating, Inc.

Filing 203

ORDER denying 195 Motion for Reconsideration and Certificate of Appealability; denying as moot 195 Motion to Stay, denying 199 Motion for Extension of Time to File Response/Reply and granting 201 Motion to Amend/Correct. Signed by District Judge Terrence W. Boyle on 6/23/2015. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-633-BO

STATE OF NORTH CAROLINA, by and
through its agency, the NORTH
CAROLINA DEPARTMENT OF
ADMINISTRATION,
Plaintiff,
V.

ALCOA POWER GENERATING, INC.,
Defendant.

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ORDER

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This matter comes before the Court on the State's motion to reconsider the Court's
November 27,2013 order or certify it as an appealable order [DE 195], motion to extend time to
respond to Alcoa's second motion for summary judgment [DE 199], and motion to amend the
motion for extension of time [DE 201]. Defendant Alcoa has responded in opposition to all
motions. [DE 197, 200, 202]. For the following reasons, the State's motion to reconsider/certify
and motion for extension of time are denied and the motion to amend is granted.
DISCUSSION
On November 27, 2013, the Court denied the State's motion to remand this case to state
court, concluding that whether the Relevant Segment of the Yadkin River is navigable for title
purposes is a question of federal law. [DE 34]. On May 18,2015, the Court denied the State's
motion to certify an appeal of the Court's May 6, 2015, order concluding that the Relevant
Segment was not navigable in fact at the time of statehood. [DE 182]. In denying the motion to
certify appeal, the Court again reiterated that the Supreme Court's decision in PPL Montana v.
Montana, 132 S.Ct. 1215, 1227 (2012), held that federal law controls the question of navigability
for title.

The State's current motion to reconsider or certify an appeal of the November 2013,
order denying remand comes 18 months after the order with no explanation for the delay. It was
abundantly clear in the order denying remand that the Court intended to apply federal law to the
question of navigability. The instant motion merely reiterates the arguments regarding
application of state law to questions of navigability for title made in the State's motion to remand
and the summary judgment briefing. It advances no new arguments, and accordingly, it is denied.
As the Court has repeatedly held, following the Supreme Court's decision in PPL Montana, it is
clear that navigability for title is a question of federal law.
Moreover, the Court has already concluded that there is not a substantial ground for
difference of opinion as to whether the question of navigability for title is controlled by federal
law. [DE 182 at 3]. Accordingly, the State fails to satisfy the requirements of28 U.S.C. §
1292(b) for interlocutory appeal, and its motion for such is denied. The motion to stay is denied
as moot.
The Court grants plaintiffs motion to amend, allowing the State to amend the motion for
extension of time [DE 201], but denies the motion for extension oftime [DE 199]. The State asks
the Court to extend its response time until the Court rules on plaintiffs motion to reconsider. The
deadline for responding to a motion is 21 days after service. See Local Civil Rule 7.1 (e)( 1),
EDNC. Alcoa filed its second summary judgment motion on May 22, 2015. [DE 183]. As the
State notes in its motion to amend, when it filed the original motion for extension of time on
June 16,2015, its response deadline had already expired. Nevertheless, the State apparently did
not notice that it already was untimely, because it was only after Alcoa's response noting that the
State was untimely [DE 200] that the State filed the motion to amend.

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A party seeking an extension of time must show good cause. See Local Civil Rule 6.1,
EDNC. The State knew on April22, 2015, the last day oftrial, that Alcoa would be filing a
motion for summary judgment based on the Marketable Title Act and adverse possession. [DE
181 at 179]. Despite being on notice, the State has given absolutely no explanation whatsoever
for its failure to abide by the response deadline. In fact, the State does not even try to argue that it
has demonstrated good cause. The Court finds the State's position inexcusable, particularly given
that plaintiff is a government with virtually limitless resources. Where the State seeks to use the
court system to further its own agenda, it should at least be able to follow the rules promulgated
by that court. Accordingly, the Court finds that plaintiff has not shown good cause and the
motion for extension of time is denied.
The State may file whatever response it wishes, but the response will be untimely, and
the Court will give it only such consideration as it deems the response due.
CONCLUSION
For the foregoing reasons, the State's motion to reconsider and for certificate of
appealability are DENIED, and the attached motion to stay is DENIED AS MOOT. [DE 195].
The State's motion to amend is GRANTED [DE 201] and the motion for extension oftime [DE
199] is DENIED. Plaintiff may file a response if it wishes to do so, but the Court will only give it
such consideration as it deems the response is due.

SO ORDERED, this~ day of June, 2015.

RRENCE W. BOYLE
UNITED STATES DISTRICT JUD

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