BURGESS v. WILLIAMS

Filing 13

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 4/16/2012, that Plaintiff's pro se Motion to Reconsider (Docket Entry 12 ) be denied. FURTHER, that this action be dismissed without prejudice under Federal Rule of Civil Procedure 41(b). (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ALBERT C. BURGESS, JR.,
Plaintiff,
v.
DAVID B. WILLIAMS, et al.,
Defendant(s).

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1:11CV316

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on Plaintiff’s pro se Motion to Reconsider (Docket
Entry 12).

(See Docket Entry dated Mar. 26, 2012.)

For the

reasons that follow, the Court should deny Plaintiff’s instant
Motion and should dismiss this action without prejudice.
BACKGROUND
Plaintiff’s instant Motion appears to seek reconsideration of
the Order entered by the Court (per Senior United States District
Judge W. Earl Britt) on February 9, 2012 (Docket Entry 11), which
overruled Plaintiff’s Objections (Docket Entry 10) to the Order
entered by the undersigned Magistrate Judge on November 2, 2011
(Docket Entry 7).

(See Docket Entry 12 at 1-3.)

In addition to

overruling Plaintiff’s Objections to the undersigned Magistrate
Judge’s prior Order, Judge Britt’s Order directed Plaintiff to
“file

any

new,

successor

complaints

in

accordance

with

[the

undersigned Magistrate Judge’s prior] Order by March 30, 2012.”
(Docket Entry 11 at 2.)
warned

Plaintiff

(in

Moreover, Judge Britt’s Order explicitly
bold,

all-capitalized

type-face)

that

a

failure to comply with that directive in a timely fashion would
result in dismissal of this case without prejudice without any
further notice to Plaintiff.

(Id.)

A search of this Court’s

records confirms that Plaintiff has not complied with Judge Britt’s
Order in

that

Plaintiff

has

failed to

file

proper

successor

complaints regarding the various unrelated “counts” or “claims” in
his pleading in this case.
DISCUSSION
As authority for the requested reconsideration, Plaintiff’s
instant Motion cites “Rule 59-FRCP.”

(Id. at 1.)

Said Rule

addresses reconsideration of orders only to the extent that it
states that “[a] motion to alter or amend a judgment must be filed
no later than 28 days after the entry of the judgment,” Fed. R.
Civ. P. 59(e).

“Although Rule 59(e) does not itself provide a

standard under which a district court may grant a motion to alter
or amend a judgment, [the United States Court of Appeals for the
Fourth Circuit] ha[s] previously recognized that there 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.”

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Pacific Ins. Co. v. American

Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

“It is an

extraordinary remedy that should be applied sparingly.”

Mayfield

v. National Ass’n for Stock Car Auto Racing, Inc., ___ F.3d ___,
___, 2012 WL 990520, at *6 (4th Cir. 2012).
Another Rule provides that:
[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights
and liabilities.
Fed. R. Civ. P. 54(b).

“Although . . . the standards governing

reconsideration of final judgments under Fed. R. Civ. P. 59(e) do
not limit a court’s authority to reconsider an interlocutory
decision, courts in the Fourth Circuit have routinely looked to
those factors as a starting point in guiding their discretion under
Fed. R. Civ. P. 54(b).”

Volumetrics Med. Imaging, LLC v. Toshiba

Am. Med. Sys. Inc., No. 1:05CV955, 2011 WL 6934696, at *2 (M.D.N.C.
Dec. 30, 2011) (unpublished) (internal citations omitted).

“In

addition, this Court (per Magistrate Judge [Russell A.] Eliason)
previously

has

declared

that

‘[a]

motion

to

reconsider

is

appropriate when the court has obviously misapprehended a party’s
position or the facts or applicable law, or when the party produces
new evidence that could not have been obtained through the exercise
of due diligence.’”

Id. (quoting United States v. Duke Energy

Corp., 218 F.R.D. 468, 474 (M.D.N.C. 2003)).

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“Conversely, ‘a

motion to reconsider is not proper where it only asks the Court to
rethink its prior decision, or presents a better or more compelling
argument that the party could have presented in the original briefs
on the matter.’”

Id. (quoting Hinton v. Henderson, No. 3:10cv505,

2011 WL 2142799, at *1 (W.D.N.C. May 31, 2011) (unpublished)
(internal citations and quotation marks omitted)).
In light of the foregoing standards, Plaintiff’s instant
Motion does not provide a sound basis for reconsideration of Judge
Britt’s Order.

Instead, said Motion presents the same generalized

criticisms of the undersigned Magistrate Judge’s prior Order as
appeared in Plaintiff’s Objections. (Compare Docket Entry 10, with
Docket Entry 12.)

At most, Plaintiff’s instant Motion “only asks

the Court to rethink its prior decision,” Volumetrics, 2011 WL
6934696, at *2, without offering any new information, authority, or
arguments

unavailable to

Objections.

Plaintiff

at

the time

he

filed

his

Plaintiff’s instant Motion certainly does not show

that Judge Britt misapprehended the record or Plaintiff’s position,
made a clear legal error, or caused some manifest injustice.

The

Court therefore should deny Plaintiff’s instant Motion.
Further,

the

Court

should

dismiss

this

action

without

prejudice due to Plaintiff’s failure to comply with Judge Britt’s
Order,

which

required

Plaintiff

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to

submit

proper

successor

complaints by March 30, 2012.1

“The Federal

Rules of Civil

Procedure recognize that courts must have the authority to control
litigation before them, and this authority includes the power to
order dismissal of an action for failure to comply with court
orders.

Fed. R. Civ. P. 41(b).

In this case, [Plaintiff] failed

to respond to a specific directive from the court.”
Carlson, 882 F.2d 93, 95 (4th Cir. 1989).

Ballard v.

Accordingly, the Court

should dismiss this action based on Plaintiff’s failure to comply
with Judge Britt’s Order.
In making this recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.”

Id.

Generally, before dismissing an action based on a

party’s failure to comply with an order, a court should consider:
“(i) the degree of personal responsibility of the plaintiff; (ii)
the amount of prejudice caused the defendant; (iii) the existence
of a history of deliberately proceeding in a dilatory fashion, and
(iv) the existence of a sanction less drastic than dismissal.” Id.
In this case, Plaintiff bears sole responsibility for the instant
non-compliance, the delay caused by Plaintiff’s non-compliance
prejudices Defendants’ right to adjudication when memories remain

1

“Merely filing a motion for reconsideration does not stay
an impeding deadline.” In re Republic of Ecuador, Nos. C-10-80225
MISC CRB (EMC), C-10-80324 MISC CRB (EMC), 2011 WL 736868, at *4
(N.D. Cal. Feb. 22, 2011) (unpublished) (citing Maness v. Meyers,
419 U.S. 449, 458 (1975)).
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fresh, Plaintiff has had adequate time to comply, and no other
sanction appears feasible or sufficient.
In fact, Judge Britt’s Order expressly cautioned Plaintiff
that non-compliance would result in dismissal without prejudice
without further notice.

(See Docket Entry 11 at 2.)

In assessing

the propriety of dismissal as a sanction, an “explicit warning that
a recommendation of dismissal would result from failure to obey
[an] order is a critical fact . . . .”
Indeed, “[i]n

view

of

the

alternative to dismissal.
of]

plac[ing]

the

invit[ing] abuse.”

warning,

Ballard, 882 F.2d at 95.
the

[Court]

ha[s]

little

Any other course would have [the effect

credibility

of

the

[C]ourt

in

doubt

and

Id. at 96.
CONCLUSION

Plaintiff

has

failed

to

provide

a

valid

basis

for

reconsideration of Judge Britt’s Order and has failed to comply
with that Order, despite receiving an express warning regarding the
consequences of such non-compliance.
IT IS THEREFORE RECOMMENDED that Plaintiff’s pro se Motion to
Reconsider (Docket Entry 12) be denied.
IT IS FURTHER RECOMMENDED that this action be dismissed
without prejudice under Federal Rule of Civil Procedure 41(b).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 16, 2012
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