Bryan v. Berryhill

Filing 7

MEMORANDUM OF DECISION AND ORDER granting 6 Motion to Set Aside Judgment. The Order dismissing Plaintiff's case without prejudice entered April 21, 2017 4 and the accompanying Clerk's Judgment entered on April 2 1, 2017 5 are hereby VACATED. IT IS FURTHER ORDERED that the Plaintiff shall pay the required $400.00 filing fee file within five (5) days of the entry of this Order. Signed by District Judge Martin Reidinger on 05/31/17. (emw) Modified text on 5/31/2017 (emw).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00071-MR

NOELLE BRYAN,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL,
)
ACTING, COMMISSIONER OF
)
SOCIAL SECURITY
)
)
Defendant.
)
________________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff's “Motion for Relief
from Judgment Pursuant to Fed. R. Civ. P. 60(b)(1),” which the Court
construes as a Motion to Alter or Amend Judgment under Rule 59 of the
Federal Rules of Civil Procedure. [Doc. 6].
I.

FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2017, the Plaintiff filed her Complaint and application to

proceed in forma pauperis. [Docs. 1, 2]. On March 10, 2017, the Court
entered an Order denying the Plaintiff’s application to proceed in forma
pauperis and giving the Plaintiff thirty (30) days to pay the required filing fee
for this action. [Doc. 3]. In the Order, the Court warned the Plaintiff that failure

to pay the required filing fee within thirty (30) days of the entry of the Order
denying her application would result in the dismissal of this action. [Id.].
Plaintiff failed to pay the required filing fee within the thirty (30) days of
the entry of the Court’s Order denying the Plaintiff’s application to proceed in
forma pauperis. On April 21, 2017, forty-one (41) days after the Court’s entry
of its Order denying the Plaintiff’s application to proceed in forma pauperis,
the Court sua sponte entered an Order dismissing this case without
prejudice. [Doc. 4].
On April 25, 2017, the Plaintiff filed the present Motion for Relief from
Judgment. [Doc. 6]. The Plaintiff’s motion asserts that upon the entry of the
Court’s Order denying Plaintiff’s application to proceed in forma pauperis,
Plaintiff’s counsel immediately notified the Plaintiff of the Court’s Order. [Id.
at ¶ 3]. The Plaintiff advised her counsel that she would send the filing fee
but would have to do so in payments. [Id. at ¶ 4]. The Plaintiff made payments
of $200.00 each to her counsel’s office on March 24, 2017 and March 31,
2017, well prior to the deadline for paying the filing fee. [Id. at ¶ 5]. Plaintiff’s
counsel, however, inadvertently neglected to forward a check for payment of
the filing fee to the Clerk’s office upon receipt of the Plaintiff’s payments. [Id.
at ¶ 6].

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The Plaintiff asserts that but for her counsel’s oversight, she would
have fully complied with the Order of the Court. [Id. at ¶ 7]. Plaintiff further
asserts that her counsel had received the full filing fee payment from the
Plaintiff within the time allowed by the Court and her counsel is prepared to
immediately forward such payment to the Clerk of Court. [Id.]. The Plaintiff
specifically requests the Court find that Plaintiff’s counsel “has committed
mistake, inadvertence, and/or excusable neglect by failing to forward the
Plaintiff’s payment of the filing fee to the Clerk of Court,” and that the Court
set aside the Judgment dismissing her case. [Id. at ¶¶ A, B].
II.

STANDARD OF REVIEW
The Plaintiff's motion seeks relief from the Order pursuant to Federal

Rule of Civil Procedure 60(b). Because the Plaintiff’s motion was filed within
twenty-eight days of the entry of the Order, however, the Plaintiff’s motion is
more properly construed as a motion to alter or amend the Order pursuant
to Federal Rule of Civil Procedure Rule 59(e). 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) (citing Dove v.
CODESCO, 569 F.2d 807, 809 (4th Cir. 1978) (holding that “if a postjudgment motion is filed within [twenty-eight] days of the entry of judgment

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and calls into question the correctness of that judgment it should be treated
as a motion under Rule 59(e), however it may be formally styled”).
The Fourth Circuit has recognized three grounds for altering or
amending a judgment under Rule 59(e): “(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 “sparingly” in exceptional circumstances.
Id. Such motions should not be used “to raise arguments which could have
been raised prior to the issuance of the judgment, nor may they be used to
argue a case under a novel legal theory that the party had the ability to
address in the first instance.” 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
The Plaintiff does not contend that there has been an intervening

change in the controlling law, or that there is any new evidence that must be
accounted for. Thus, the Court need only consider whether relief is warranted
under the third prong of Rule 59(e).
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After carefully reviewing the Plaintiff’s motion, the Court concludes that
vacating the Order is necessary to prevent manifest injustice. The Order
denying Plaintiff’s application to proceed in forma pauperis instructed Plaintiff
to pay the required filing fee within thirty (30) days of the entry of the Order
and explicitly warned the Plaintiff that failure to pay the required filing fee
would result in the dismissal of the action. [Doc. 3]. Indeed, the Plaintiff paid
the full amount of the filing fee to her counsel well before the deadline. [Doc.
6 at ¶ 5]. Plaintiff’s counsel, however, failed to forward the required filing fee
and has admitted as much. [Id. at ¶ 6]. Due to counsel’s oversight, and due
to no fault of the Plaintiff, the required filing fee was not paid resulting in the
dismissal of this action.1
Plaintiff’s counsel regularly appears before this Court and is known to
be a strict adherent to the Federal Rules of Civil Procedure as well as the

1

While the dismissal was without prejudice, Plaintiff likely would have been barred from
filing a new action. 42 U.S.C. § 405(g) requires that an action seeking judicial review of a
social security ruling must be filed within sixty days of the Commissioner's final decision.
The dismissal without prejudice of Plaintiff’s case will likely preclude Plaintiff from bringing
another action because the sixty day deadline will have passed. Boniella v. Commissioner
Social Security, 317 F. App'x. 268 (3th Cir.2009); Christides v. Astrue, 2010 WL 5387596
(M.D.Fla.2010) (citing and quoting Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th
Cir.2004)) (“Dismissal of a complaint without prejudice does not allow a later complaint to
be filed outside the statute of limitations.”). The sixty day time period contained in § 405(g)
is a statute of limitations. Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90
L.Ed.2d 462 (1986); Cleaton v. Secretary, Dept. of Health and Human Services, 815 F.2d
295 (4th Cir.1987). There is a doctrine of equitable tolling which may be applied in
appropriate circumstances but that issue is not before the Court. Bowen, 476 U.S. at 481–
82.
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Court’s Local Rules. Therefore, based in large measure on counsel’s history
of compliance with the Court’s rules and procedures, the Court finds that
counsel’s failure to forward the payment of the required filing fee constitutes
excusable neglect.
Under these exceptional circumstances, the Court finds that manifest
injustice would result if the Order dismissing Plaintiff’s case were not set
aside. Accordingly, in exercise of its discretion, the Court vacates the Order
dismissing the Plaintiff’s case.
The Court admonishes Plaintiff’s counsel to keep better track of the
deadlines and in the future will be expected to comply strictly with all
deadlines. The Court further admonishes Plaintiff’s counsel not to rely on a
presumption that the Court will be similarly lenient in the future.
ORDER
For the foregoing reasons, IT IS, THEREFORE, ORDERED that the
Plaintiff's “Motion for Relief from Judgment Pursuant to Fed. R. Civ. P.
60(b)(1)” [Doc. 6] is GRANTED, and the Order dismissing Plaintiff’s case
without prejudice entered April 21, 2017 [Doc. 4] and the accompanying
Clerk’s Judgment entered on April 21, 2017 [Doc. 5] are hereby VACATED.
IT IS FURTHER ORDERED that the Plaintiff shall pay the required
$400.00 filing fee file within five (5) days of the entry of this Order.
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IT IS SO ORDERED.
Signed: May 31, 2017

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