Hicks v. Transit Management of Asheville, Inc.

Filing 33

MEMORANDUM OF DECISION AND ORDER denying 31 Motion for Relief from Order. Signed by District Judge Martin Reidinger on 4/17/12. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv94

DAVID HICKS,
Plaintiff,
vs.
TRANSIT MANAGEMENT OF
ASHEVILLE, INC., a wholly
owned subsidiary of FIRST
TRANSIT, INC.,
Defendant.

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MEMORANDUM OF DECISION
AND ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for Relief
from Order [Doc. 31].
I.

PROCEDURAL BACKGROUND
The Plaintiff David Hicks initiated this civil action against the Defendant

Transit Management of Asheville, Inc. in state court seeking to recover
$9,704.32 he contends he is owed in unpaid sick leave after the Defendant
terminated his employment. [Doc. 1-1 at 4-5]. The Defendant removed the
action to this Court on the grounds of the existence of a federal question,
contending that this case is governed by a collective bargaining agreement
and thus the Plaintiff’s claim is pre-empted by the Labor Management

Relations Act, 29 U.S.C. § 185(a). [Doc. 1]. After removing this action, the
Defendant filed a Motion to Dismiss the action. [Doc. 5].
In support of his Response to the Motion to Dismiss, the Plaintiff
submitted two exhibits, including an Affidavit setting out additional facts not
contained in the Complaint.

[Doc. 11].

The Defendant moved to strike

Plaintiff’s Affidavit. [Doc. 14]. Rather than respond to the Motion to Strike, the
Plaintiff moved for leave to file an Amended Complaint.

[Doc. 17].

On

November 7, 2011, the Magistrate Judge granted the Plaintiff leave to file an
Amended Complaint and denied as moot the Motion to Dismiss and the
Motion to Strike. [Doc. 24]. In the Order, the Magistrate Judge specifically
directed the Plaintiff as follows:
The Court, however, INSTRUCTS Plaintiff that he
should file an Amended Complaint that incorporates
the factual allegations contained in his affidavit into
the body of the Amended Complaint so that
Defendant can adequately respond to the allegations.
The Amended Complaint, rather than affidavits
attached to it, is the proper place for alleging all
factual allegations necessary to state a claim against
Defendant. Moreover, if Defendant moves to dismiss
the Amended Complaint and Plaintiff attaches
additional affidavits setting forth factual allegations not
contained in the Amended Complaint, the Court will
strike the affidavits and rule on the motion based on
the well pled factual allegations contained in the
Amended Complaint.

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[Id. at 3-4].
The Plaintiff filed an Amended Complaint on November 18, 2011. [Doc.
25]. The allegations of the Amended Complaint, however, were essentially
identical to the allegations contained in the original Complaint. The Amended
Complaint contained only three additional paragraphs, which stated as
follows:
10. That attached hereto as Exhibit 5 is an affidavit of
Plaintiff.
11. That attached hereto as Exhibit 6 is an Order of
Administrative Law Judge dated August 17, 2009
awarding Plaintiff Social Security.
12. That attached hereto as Exhibit 7 is the entire
contract between Defendant’s predecessor in interest,
PROFESSIONAL TRANSIT MANAGEMENT OF
ASHEVILLE, INC. and LOCAL UNION 128 of the
AMALGAMATED TRANSIT UNION.
[Id. at ¶¶ 10-12]. Attached to the Amended Complaint were three exhibits,
including the Affidavit of the Plaintiff. Contrary to the explicit instructions of
the Magistrate Judge, none of the factual allegations set forth in the Plaintiff’s
Affidavit were incorporated into the Amended Complaint. Accordingly, on
November 28, 2011, the Magistrate Judge entered an Order striking the
Amended Complaint for failure to comply with the November 7, 2011 Order.
[Doc. 26].
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Following entry of the Magistrate Judge’s November 28, 2011 Order, the
Defendant moved to renew its Motion to Dismiss and Motion to Strike. [Doc.
27]. The Plaintiff did not respond to the Defendant’s Motion to Renew. On
January 20, 2012, the Magistrate Judge granted the Defendant’s Motion to
Renew and recommended that the Defendant’s Motion to Dismiss be granted.
[Doc. 28]. The parties were specifically advised that any objections to the
Magistrate Judge's Recommendation were to be filed in writing within fourteen
(14) days of service.

No written objections to the Memorandum and

Recommendation were filed.
On February 14, 2012, the Court entered an Order adopting the
Magistrate Judge’s Recommendation, and the Plaintiff’s Complaint was
dismissed. [Doc. 29].

A Judgment was entered in accordance with the

Court’s Order on the same day. [Doc. 30].
Thereafter, on March 5, 2012, the Plaintiff filed the present Motion for
Relief pursuant to Rule 60 of the Federal Rules of Civil Procedure, citing
counsel’s “excusable neglect” in failing to read the Magistrate Judge’s
November 7, 2011 Order. [Doc. 31]. The Defendant filed a Response in
opposition to the Plaintiff’s Motion on March 19, 2012. [Doc. 32].
Having been fully briefed, this matter is ripe for disposition.

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II.

STANDARD OF REVIEW
Because the Plaintiff's motion was filed within twenty-eight days of the

entry of Judgment, the Court shall treat his motion as one seeking relief
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. See Robinson
v. Wix Filtration Corp. LLC, 599 F.3d 403, 412 (4th Cir. 2010); MLC
Automotive, LLC v. Town of Southern Pines, 532 F.3d 269, 277 (4th Cir.
2008); Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978).
Three grounds for altering or amending a judgment under Rule 59(e) are
recognized in this Circuit: “(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.” Pacific Ins. Co. v.
American Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Rule 59(e) is
considered an “extraordinary remedy” which the Fourth Circuit has cautioned
should be used only in exceptional circumstances.

Id.

Ultimately, the

decision to grant or deny a Rule 59(e) motion is a matter within the Court’s
discretion. See Robinson, 599 F.3d at 407.
III.

ANALYSIS
At the outset, the Court notes that the Plaintiff’s Motion fails to comply

with Local Civil Rule 7.1(C), which requires the filing of a brief in support of

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such Motion. Moreover, the Plaintiff offers no legal citations or authority in
support of his request for extraordinary relief. These deficiencies alone would
justify the denial of the Plaintiff’s Motion. Nevertheless, the Court will address
the merits of the Plaintiff’s request.
The Plaintiff does not address his entitlement to relief in the context of
Rule 59(e). Considering the substance of the Plaintiff’s Motion, the first two
prongs of this rule do not appear to be at issue. The Plaintiff does not assert
an intervening change in controlling law, and because the dismissal of the
Plaintiff’s Complaint was based upon review of the pleadings as a matter of
law, there is no issue as to the existence of any new evidence regarding the
Plaintiff’s claims. Thus, the Court will limit its analysis to the third prong of
Rule 59(e), i.e., whether vacating the Judgment is necessary in order to
prevent a manifest injustice.
As the sole basis for his Motion for Relief, the Plaintiff argues that his
counsel mistakenly failed to read the Magistrate Judge’s November 7, 2011
Order. Specifically, the Plaintiff contends that counsel mistakenly thought that
the Notice of Electronic Filing (NEF) that counsel received advising of the
entry of the November 7, 2011 Order was “the entire Order” itself, and that
counsel failed to notice that a copy of the Order was attached to the NEF.

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[Doc. 31].1 Consequently, counsel states that he did not read the Magistrate
Judge’s Order and was thus unaware of the Magistrate Judge’s instructions
regarding the incorporation of the factual allegations in the Plaintiff’s
Complaint into his amended pleading.
Counsel’s neglect in failing to read an Order of the Court and to comply
with its directives simply does not justify granting the Plaintiff the extraordinary
relief he requests.

As both the Supreme Court and the Fourth Circuit

repeatedly have recognized, “a party voluntarily chooses his attorney as his
representative in the action, and, thus, he cannot later ‘avoid the
consequences of the acts of omissions of this freely selected agent.’”
Robinson, 599 F.3d at 409 (quoting Link v. Wabash R.R. Co., 370 U.S. 626,
633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)).

Even if the Court could

somehow excuse counsel’s neglect in failing to read the November 7, 2011
Order, however, the Plaintiff has offered no explanation for his failure to
respond to the Defendant’s renewed Motion to Dismiss or his failure to file any
objections to the Magistrate Judge’s Memorandum and Recommendation

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The NEF to which counsel refers sets forth the Clerk’s docket entry for the
Magistrate Judge’s Order. [See Doc. 31-1]. This docket entry indicates that the Motion
to Amend was granted but makes no reference to the Magistrate Judge’s instructions in
the Order requiring the incorporation of the factual allegations from the Plaintiff’s
Affidavit.
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within the time period required. The Plaintiff was specifically advised that the
“failure to file objections to [the] Memorandum and Recommendation with the
district court will preclude the parties from raising such objection on appeal.”
[Doc. 28 at 11]. The Plaintiff cannot now seek to correct his failure to file
timely objections by seeking relief from the Court’s Order adopting that
Recommendation. See Pacific Ins. Co., 148 F.3d at 403 (“Rule 59(e) motions
may not be used . . . to raise arguments which could have been raised prior
to the issuance of the judgment . . . .”).
Finally, the Court notes that construing the Plaintiff’s motion under Rule
60(b) would provide no benefit to the Plaintiff. The Plaintiff alleges that his
counsel’s excusable neglect justifies relief from the Order and Judgment in
this case. The Fourth Circuit has held, however, that “[a] party that fails to act
with diligence will be unable to establish that his conduct constituted
excusable neglect pursuant to Rule 60(b)(1).” Robinson, 599 F.3d at 413.
For the reasons discussed above, the Court finds that the Plaintiff’s counsel
failed to act with reasonable diligence in reviewing the Orders of this Court
and complying with the Court’s directives. Therefore, even if the Plaintiff’s
motion were construed pursuant to Rule 60(b), the Plaintiff would not be
entitled to the requested relief.

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In sum, the Court concludes that the dismissal of Plaintiff’s Complaint
was legally correct and does not create a manifest injustice in this case. See
United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d
284, 290 (4th Cir. 2002).

Accordingly, the Court in the exercise of its

discretion declines to vacate the Order and Judgment dismissing the Plaintiff’s
Complaint. The Plaintiff’s Motion for Relief is hereby denied.

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Relief from
Order [Doc. 31] is DENIED.
IT IS SO ORDERED.

Signed: April 17, 2012

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