BUTLER et al v. BUTLER et al

Filing 68

MEMORANDUM AND OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 5/18/2016. For the reasons stated herein, Plaintiffs Motion to Alter or Amend September 25, 2015 Judgment (Doc. 62 ) is DENIED.(Daniel, J)

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

KATHARINE B. DILLON,
Plaintiff,
v.
THERESA M. BUTLER, DAVID R.
GUIN, PATRICIA B. GUIN,
and REGINA B. SRIRAMAN,
Defendants.

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1:13CV424

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion to Alter or Amend
its September 25, 2015 Judgment, pursuant to Federal Rule 59(e),
filed by Plaintiff Katharine B. Dillon (“Plaintiff”) in a pro se
capacity. (Doc. 62.) 1 Defendants Theresa M. Butler, David R.
Guin, Patricia B. Guin, and Regina B. Sriraman (collectively
“Defendants”) have responded, (Doc. 63), and Plaintiff has
replied. (Doc. 64.) This issue is now ripe for resolution and,
for the reasons granted herein, Plaintiff’s motion will be
denied.

1

Plaintiff Joan M. Pate entered into a Stipulation of
Dismissal of Claims as to Plaintiff Joan M. Pate, Pro Se With
Prejudice that was filed with this court on November 5, 2015.
(Doc. 65.)

I.

BACKGROUND & PARTIES’ ARGUMENTS
On September 25, 2015, this court entered a Memorandum

Opinion and Order and Judgment granting Defendants’ Motion to
Dismiss and dismissing the action with prejudice. (See Mem. Op.
& Order (“Mem. Op.”) (Doc. 60), Judgment (Doc. 61).)
In Plaintiff’s motion to alter or amend the judgment, she
asserts that there is a need “to correct clear errors of law and
fact” in the prior memorandum opinion and order “and to prevent
manifest injustice, on the grounds that such Judgment was the
result of manifest errors of law and fact, and should be
substantially modified and/or vacated.” (Pl.’s Mot. to Alter or
Amend (“Pl.’s Mot.”) (Doc. 62) at 1 (citations omitted).)
Specifically, Plaintiff argues that the court “improperly
dismissed the plaintiffs’ claims with prejudice hereunder
pursuant to Rule 12(b)(1) for a stated lack of subject matter
jurisdiction based upon an alleged lack of complete diversity."
(Id. at 2.) She outlines four main reasons as to why the
Judgment was improper:
(1)

the September 25, 2015 Judgment ignored or
overlooked the fact that plaintiff Vincent
Butler, the only party allegedly impairing
complete diversity in this case, had previously
voluntarily dismissed his claims in this case in
August, 2013; the Judgment further ignored or
misconstrued controlling case law regarding the
well-recognized exception to the “time of filing”
rule, where diversity jurisdiction is preserved
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by the prior dismissal of the only non-diverse
party, as enunciated in Grupo Dataflex v. Atlas
Glo. Group, L.P., 541 U.S. 567, 574, citing
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996);
not only does the Judgment ignore and overlook
the relevant portion of the Grupo Dataflex
decision at page 574 et seq. regarding this
exception which works in plaintiffs’ favor, but
also the Judgment mis-cites the case for the
opposite result [Dkt. No. 60, p. 14, FN 7];
(2)

in the absence of any citation to relevant Fourth
Circuit case law, the September 25, 2015 Judgment
relied solely upon an inapposite Tenth Circuit
“wrongful death” case and a Seventh Circuit case
involving “collusion to preserve diversity” to
improperly dismiss plaintiffs’ claims hereunder
by the imposition of legally- unfounded new law,
by first improperly “recharacterizing” the nonresident Plaintiffs as “legal representatives”
who must “assume” the same North Carolina
residency status as the Decedent pursuant to 28
U.S.C.§ 1332(c)(2) (despite the actual in-fact
legal representative being a named defendant),
and thereafter improperly dismissing plaintiffs’
common-law tort claims in this case based on an
alleged “lack of complete diversity” resulting
from such unfounded, unwarranted, and legallyunsupported citizenship “recharacterization” of
the plaintiffs by the Court;

(3)

the September 25, 2015 Judgment is the result of
manifest error of law and fact when it
incorrectly held that probate-related rulings
regarding the estate of Decedent Audrey Butler
made by the Clerk of the Superior Court of Moore
County [Dkt. Nos. 40-6, 41-1, and 41-2] triggered
the application of the principles of res judicata
and/or collateral estoppel to bar the plaintiffs’
common-law tort claims in this case, including
their claims for fraud and constructive fraud,
even though relevant North Carolina law clearly
and specifically provides that Clerks of the
Superior Court “shall not have jurisdiction over”
“actions involving claims for monetary damages,
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including claims for breach of fiduciary duty,
fraud, and negligence” [N.G.G.S. 28A-2-4(c)(2)],
and so there can not [sic] possibly [be] any res
judicata or collateral estoppel effect on
plaintiffs’ common-law tort claims hereunder; and
(4)

the September 25, 2015 Judgment is the result of
manifest errors of law when it held that
Plaintiffs’ common-law tort claims must be
dismissed because Plaintiffs had failed
previously to open the Decedent’s estate, when
Plaintiffs have already properly and implicitly
named the Estate of Audrey Butler as defendant in
this lawsuit by naming the Personal
Representative of the Estate, defendant Theresa
Butler, as a defendant in such capacity, pursuant
to N.C.G.S. 28A-18-1(a).

(Id. at 2-5.)
Defendants provide a brief response, emphasizing that the
reasons contained in their prior motion to dismiss and the
court’s Memorandum Opinion and Order (at issue here)
substantiate the prior holdings. (Defs.’ Resp. to Mot. to Alter
or Amend J. (“Defs.’ Resp.”) (Doc. 63) at 1.) They also add that
“in holding that the citizenship of the real parties in interest
controls the analysis of diversity jurisdiction, the Court was
in line with the longstanding holding of the United States
Supreme Court that diversity is determined by the real parties
in interest.” (Id. at 1-2 (citation omitted).) Consequently,
they assert that the court’s decision as to subject-matter
jurisdiction was correct as “Ms. Dillon has been emphatically
clear that she and her co-plaintiff . . . were suing on behalf
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of the Estate of Audrey Butler, which was the real party in
interest.” (Id. at 3 (citation omitted).)
In reply, Plaintiff largely reiterates her arguments from
the original motion and supporting brief. Additionally, she
characterizes the case cited by Defendants as “irrelevant and
easily-distinguishable” and urges that they “should be
sanctioned for their obvious lack of candor to the Court and to
the Plaintiffs by citing an irrelevant case in their
Brief . . . .” (Pl.’s Reply in Supp. of Mot. to Alter or Amend
J. (Doc. 64) at 6-7 (citations omitted).)
II.

LEGAL STANDARD & ANALYSIS
Rule 59(e) of the Federal Rules of Civil Procedure provides

for a motion to alter or amend a judgment. Rule 59(e) “permits a
district court to correct its own errors, ‘sparing the parties
and the appellate courts the burden of unnecessary appellate
proceedings.’” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998) (citation omitted).
“Rule 59(e) motions will be granted in three circumstances:
‘(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.’”
Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 197 (4th
Cir. 2006) (citation omitted). Further, “[a]s a general
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proposition, ‘reconsideration of a judgment after its entry is
an extraordinary remedy which should be used sparingly.’” Gibson
v. Total Car Franchising Corp., 223 F.R.D. 265, 271 (M.D.N.C.
2004) (citation omitted).
This court reviewed and considered Plaintiff’s motion and
briefings as well as Defendants’ response briefing and the
original Memorandum Opinion and Order. Additionally, it has
consulted relevant legal precedent and cases proffered by the
parties. Following this review, this court finds no basis upon
which the extraordinary remedy of granting amendment or
alteration of the judgment could stand.
As to Plaintiff’s first and second assignments of error,
her attempts to create sufficient diversity jurisdiction are
unavailing, and the cases cited to support these attempts are
unpersuasive when considered with respect to the case at hand.
Thus, her first two arguments regarding whether diversity-ofcitizenship did in fact exist are insufficient to invoke the
extraordinary remedy occasionally available under Rule 59(e).
Indeed, Plaintiff’s prior filings with the court make clear her
shared intent to represent the interest of the Decedent’s
Estate. (See Doc. 45 at 16 (“Plaintiffs’ Third Amended Complaint
makes it clear that the Plaintiffs, as children and legal heirs
of Audrey Marie Butler, are suing the named Defendants,
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including Theresa M. Butler in her capacity as personal
representative of the Estate of Audrey M. Butler, on behalf of
the Estate of Audrey Marie Butler, the real party in
interest . . . .”).) Consequently, arguments regarding the
frivolity of the Estate being functionally located on both sides
of the case are unavailing – Plaintiff cannot now disavow
earlier representations to this court in an effort to sustain
jurisdiction. Consequently, the Estate’s citizenship guides the
case and results in incomplete diversity. 2
As to Plaintiff’s third assignment of error, regarding res
judicata and collateral estoppel principles, most significant is
the fact that this court’s Memorandum Opinion and Order did not
actually rely upon those principles for its holding; instead, it
presented them as an alternative sufficient ground upon which to
dismiss the action. (Mem. Op. (Doc. 60) at 27 & n.9 (“Because
this court dismisses this action on other grounds, it is not
necessary to conclusively say the action is barred by collateral
estoppel, but this court finds the evidence supports such a
finding.”).) Further, Plaintiff’s arguments regarding a Clerk of

2

Additionally, while Plaintiff makes much of the dismissal
of former Plaintiff Vincent Butler and cases regarding dismissal
of dispensable nondiverse parties, she fails to address the
issue of former Plaintiff Butler as a nondispensable nondiverse
party, rendering the cases she cites for the dispensable
nondiverse exception to be unpersuasive in this matter.
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Superior Court’s subject-matter jurisdiction over common-law
tort claims do not address an issue this court specifically
raised: the likely repackaging of probate claims into alleged
common law tort claims here in an attempt to garner federal
jurisdiction despite the probate exception for federal courts.
(Id. at 27-28.)
As to Plaintiff’s fourth assignment of error, the court
notes that the issue was not whether the Estate was open for
purposes of properly naming the representative as a defendant,
as Plaintiff argues in her motion. Instead, this court
specifically noted the concern in its Memorandum Opinion and
Order that “Plaintiffs are suing on behalf of an estate that
does not legally exist.” (Id. at 29.) This is a different issue
than the one that Plaintiff addresses in her Rule 59(e) motion,
which is accordingly misplaced in its analysis.
This court also notes the concern raised repeatedly by
Defendants that unlicensed or disbarred attorneys are ghostwriting these allegedly pro se motions and “engaging in the
unauthorized practice of law[.]” (Defs.’ Resp. (Doc. 63) at 2
n.1.) This concern is heightened by the repeated assertions in
this supposedly pro se Plaintiff’s brief regarding elementary
lessons for first-year law students, raising the logical
question of how she could properly assert to a court what law
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students would know. Nevertheless, given that this court finds
no basis upon which to grant the Rule 59(e) motion, it will not
address this concern at this time. However, to the extent
Plaintiff requests sanctions be issued against Defendants for
citing a case she finds to be irrelevant, without any further
support for this extreme request, this court warns of the
concerns regarding the authorship of the pro se filings in this
case.
Finally, as the case is properly dismissed, there is no
need to address the substitution of the Estate of prior
Defendant David R. Guin. (See Docs. 66, 66-1, 67.)
III. CONCLUSION
For the reasons stated herein, Plaintiff’s Motion to Alter
or Amend September 25, 2015 Judgment (Doc. 62) is DENIED.
This the 18th day of May, 2016.

_______________________________________
United States District Judge

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