Anderson v. Waste Management of Wilmington, et al

Filing 47

ORDER denying 41 Motion for Reconsideration regarding 37 ORDER and 38 Judgment - Signed by District Judge Louise Wood Flanagan on 6/7/2016. (Baker, C.)

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IN THE UNITED STATES DISTRICT  COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA Motion DENIED 
SOUTHERN DMSION
EDWARD W. ANDERSON

This the ___ day of _________, 20___. 
7th
June
16
/s/ Louise W. Flanagan  

Case No. 7:15-cv-14-FL ·

Plaintiff,
v.

MOTION FOR RECONSIDERATION

WASTE MANAGEMENT OF
WILMINGTON, TAMMIE HOFFMAN

ANDFORORDER VACATING

LAURA SNOW,and ,DONOVAN DUKES

DISMISSAL OF COMPLAINT

Defendants.

PURSUANT TO
RULE 59(e) and 60(b)(3)

COMES NOW Plaintiff, Edward W. Anderson in the above entitled action and hereby
respectfully moves this court to grant the motion for consideration and that the court after
review, issue an order vacating the previous order entered in this action on March 28,
2016 dismissing Plaintiffs' amended complaint against Defendants. In support of the
motion Plaintiff states as follows:
PlaintiffEdward W. Anderson ("Anderson") respectfully requests that this court
reconsider its decision ofMarch 28, 2016, holding that the Employer and its defense
counseL Justin Howard ("Howard") have knowingly misled the court and intentionally
and knowingly misrepresented crucial facts to the factfinder in this case.

Background

On February 17, 2016, Justin Howard ("Howard") filed with this Court, a sworn
affidavit from Defendant Laura Snow, District Manager with Waste Management. Snow,
under penalty ofpetjury, vehemently denied to this Court that she ever heard ofWaste
Management ofWilmington, and that it did not exist. In contrast, Howard argued that
Waste Management of Carolinas Inc, was Plaintiffs' proper employer.
To be sure, the record shows that Howard argued the folloWing defense to this
Court:
[sic] Waste Management ofWilmington is a fictional entity and. as set forth in
Defendants Memorandum in Support of Motion to Dismiss. is not a proper party to this
action. See Dkt No.25-1. Paragraph 4-8. As set forth in defendants' opening
Memorandum, the proper corporate party would be Plaintiffs' former employer. Waste
Management of Carolinas. Inc." Jd

The Order Dismissing Plaintiffs' Amended Complaint Should be Set Aside for
Defendants fraud upon the court Pursuant to Rule 60(b)(3)
The Court order dismissing the Amended Complaint should be vacated and set aside on
ground Defendants have wilfully submitted petjured documents constituting a fraud upon
the court. The documents Plaintiff reasonably believed, influenced the courts decision in
this matter and vacatuar is appropriate under Rule 60(b)(3) which provides:
Fraud (whether heretofore denominated intrinsic or extrinsic). misrepresentation. or
other misconduct of an adverse party;

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Plaintiffs; Rule 59(e) Newly Discovered Evidence
On or about February 15, 2016, (6) months later, after he filed that defense with this
court, Plaintiff has learned that Howard knowingly communicated by email with an
attorney from McAngus Goudelock & Courie PLLC, Carolyn T. Marcus, about and
concerning Plaintiff at which time Howard wilfully failed to inform that attorney of his
previous Waste Management of Carolinas Inc, proper entity argument with this court.
Plaintiff has since discovered that sometime around February 2016, and prior to this
court dismissing Plaintiffs• amended complaint, Howard recieved and participated in e-mail
communications without Plaintiff's knowledge. The attorney not only referred to Waste
Management of Wilmington, before a state government agency, but, the Employers• own
insurance carrier, Gallagher Bassett Services Inc, also referenced the Employer as Waste
Management ofWilmington, not Waste Management of Carolinas Inc, on an official state
government document to an official state government agency, the North Carolina
Industrial Commission.
Based upon the record, not only did Howard mislead this court with his perjured
Snow affidavit, but, Plairitiff was correct that the employer held itself out as Waste
Management of Wilmington, as corroborated by (2) separate parties, one being an
employment defense attorney, and the other, the employers own insurance carrier,
notwithstapding the fact, Plaintiff never spoke to any of them, and they both had nothing
to do with Plaintiffs• Title Vll lawsuit.
In sum, Plaintiffs• former employer has gone by three different names, before, during,

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and after the filing of this lawsuit, and after the subsequent dismissal of the Plaintiffs'
complaint by this court. Howard has all but failed to provide even one document to this
court to rebut Plaintiffs claim that the employer operated as Waste Management of
Wilmington. The employers' constant shifting corporate identities, the perjured affidavit,
and Plaintiffs' newly discovered evidence speaks directly to Howards 12(b)(4) and (5)
motions filed with this court and the court should reconsider the dismissal ofPlaintiffs'
complaint based on that reason alone.

Plaintiffs newly discovered evidence rebuts Howards 12(4)and (5) motions
to this court and the March 28, 2016 order dismissing the amended complaint
should be vacated and Plaintiff granted leave to amend his complaint .
Based upon Plaintiffs' recently obtained evidence which speaks directly to
Defendant's 12(b)(4),(5) and (6) motions, the court should vacate the March 28, 2016
order dismissing Plaintiffs' amended complaint, and grant Plaintiff leave to amend his
complaint, and direct Howard and the Defendant employer to explain their deception to
the court as to why this court should not levy sanctions on both Howard and Defendants
for their wilfulful misrepresentation of material facts.

Plaintiffs newly discovered evidence rebuts Howards authentication
argument to this court and the March 28, 2016 order dismissing the amended
complaint should be vacated and Plaintiff granted leave to amend his complaint .
The Court erred in considering Howards authentication argument, and was an error of
law, without more, despite Plaintiffs' overwhebning evidence to the contrary. In

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particular, the court erred by giving weight to the Howard authentication defense. The
record shows Howard offered no supporting corroboration. It was highly prejudicial by
the court not to consider Plaintiffs physical documents, as a rebuttal, which were not
offered for the truth of the matter asserted, but, to discredit Howards defense responses
filed with this court.
Plaintiff has discovered new evidence from (2) outside individuals authenticating the
documents in this case. It was error for the court to dismiss Plaintiffs complaint under
12(b)(4) and (5) given defendants penchant for false narratives, the claim ofimproper
service in particular, together with the Defendant employer's litany of shifting corporate
names.
Plaintiff respectfully moves the Court to correct a clear error oflaw or fact, by
considering Plaintiffs new evidence and vacating the March 28, 2016 order dismissing his
amended complaint. Plaintiff respectfully shows the court that the Rule 59(e)
reconsideration motion is particularly appropriat,e in this case because of the Defendants
deceptive and deliberately misleading responses which prevented Plaintiff from recieving a
fair review of the· material critical facts.
There was surprise which ordinary prudence could not have guarded against. Plaintiff
has newly discovered evidence material to rebut the Defendants 12(b)(4),(5) and (6)
defenses. There is no evidence ot reasonable inference in the record from Howards'
arguments which is directly attached to Plaintiffs' new ly discovered evidence that would
justify the dismissal of Plaintiffs complaint and the dismissal was contrary to law. Plaintiff
timely objected to defendants defenses as peijured, manufactured, misleading, and

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contrary to law and substantial justice has not been done. Plaintiff respectfully moves the
Court to correct a clear error oflaw or fact, by considering Plaintiffs new evidence and
vacating the March 28, 2016 order dismissing his amended complaint.

Standard for Relief under Rule 59(e)
Plaintiffs' motion is appropriate under Federal Rules of Civil Procedure 59(e) and
56(d) because there has been a final judgment issued by the District Court. "[T]he purpose
of[a Rule 59(e) motion is to] allow a party to correct manifest errors oflaw or fact or to
present newly discovered evidence." Waltman v. Int'l Paper Co .. 875 F.2d 468. 473 (5th
Cir.1989). "A Rule 59(e) motion is appropriate 'if the district court: (I) is presented with
newly discovered evidence, (2) committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in controlling law."' Circuit CityStores. Inc.
v. Mantor, 417 F.3d 1060, 1064 (9th Cir. 2005) (citing Sch. Dist. No. IJ, Multnomah
County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) "[A] Rule 59(e) motion is
appropriate where the court has misapprehended the facts, a party's position, or the
controlling law." Dean v. Gilette, 2005 WL 1631093 at *2 (D. Kan. 2005) (citing
Servants ofParaclete v. Does. 204F.3d 1005, 1012 (lOth Cir.2000).
A motion to reconsider under Rule 59(e) should be granted to correct a clear error,
whether oflaw or of fact, and to prevent a manifest injustice. Firestone v. Firestone, 76
F.3d 1205, 1208 (D.C. Cir. 1996) (the four grounds for reconsideration are: to prevent
manifest injustice, to accommodate for an intervening change in controlling law, to
account for newly discovered evidence, or to correct clear error of fact or law);

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Fourth Circuit Court of Appeals
In a case before the Fourth Circuit Court of Appeals, EEOC v. Lockheed Martin
Corp.,l16 F.3d 110. 1 i2 (4th Cir. 1997). Upon a Rule 59(e) motion, the courts have
considerable discretion. Lockheed Martin Corp .. 116 F.3d at 112. The court can and
should correct clear errors in order to "preserve the integrity of the final judgment."
Turkmani v. Republic ofBolivia. 273 F. Supp. 2d 45, 50 (D.D.C. 2002).
The Fourth Circuit affirmed, explaining that "the district court would likely have
abused its discretion if it had failed to grant the Rule 59(e) motion." Id. (emphasis in
original); see Norman v. Arkansas. 79 F. 3d 748. 750 (8th Cir. 1996) (finding abuse of
discretion where court refused to reconsider clear factual error); see also Anyanwutaku v.
Moore. 151 F.3d 1053. 1058-59 D.C. Cir. 1998) (finding abuse of discretion where court
refused to reconsider clear legal error).
CONCLUSION
For the foregoing reasons, the Plaintiff respectfully requests that the Court grant
the motion for reconsideration and vacate its prior decision, thereby permitting the
Plaintiff leave to amend his Complaint and in the interest and fairness of justice, that the
Court grant Plaintiff leave to amend under Rule 15.

Plaintiff Pro se

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CERTIFICA~ ~RVICE

The undersigned hereby certifies that on

th~~ay of April, 2016, a copy of the Motion

for Reconsideration and Order Vacating Dismissal of Complaint Under rule 59(e) and
60(b)(3) was served upon Defendants through counsel of record by depositing a copy
thereof into an official depository under the exclusive care and custody ofthe U.S. Postal
Service first class postage prepaid addressed to the last known address below:

Justin Howard
McGuire Woods LLP
434 Fayetteville Street, SUite 2600
P.O. Box 27507
Raleigh, North Carolina 27611

Counsel for Defendants

ard W. Anderson

(Plaintiff Pro se )
P.O. Box 16048
Wilmington, North Carolina 28408
[phone]

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