McNeilly v. Norman et al

Filing 62

ORDER denying Pltf's 49 Motion for Reconsideration re: 34 Order. Signed by District Judge Martin Reidinger on 2/22/2019. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00286-MR-DLH

MARY McNEILLY, Administrator of
the Estate of ARCHIE K. McNEILLY,
JR.,

)
)
)
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Plaintiff,
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vs.
)
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ALAN NORMAN, officially as Sheriff )
of Cleveland County, LIBERTY
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MUTUAL INSURANCE CO., as surety )
for the Sheriff, DURWIN BRISCOE,
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officially, DAVID GIBSON, A.D.
)
McCRAY, BRITTANY MORTON,
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JAMES D. OAKS, JORDAN T.
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PERKINS, M.R. USSERY, TODD A.
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WYLLYS, R.N. WESTBROOK, each
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of them individually and officially,
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SOUTHERN HEALTH PARTNERS,
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INC., TERESA SMITH,CRYSTAL LAIL, )
PAMELA PATTERSON, and
)
MANUEL MALDONADO, each of
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them individually,
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Defendants.
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_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion to
Reconsider [Doc. 49].

The Plaintiff moves the Court to reconsider its August 7, 2018 Order
[Doc. 34] dismissing Southern Health Partners, Inc., Teresa Smith, Crystal
Lail, Pamela Patterson, and Manuel Maldonado (“the SHP Defendants”) from
this action and its October 19, 2018 Order [Doc. 47] denying certification of
the August 7, 2018 Order for an appeal. [Doc. 49].
The Court may grant a motion for reconsideration under Rule 59(e) of
the Federal Rules of Civil Procedure only in the following 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 to
prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002)
(quoting Collison v. Int’l Chem. Workers Union, 34 F.3d 233, 236 (4th Cir.
1994)). Furthermore, “Rule 59(e) motions may not be used to make
arguments that could have been made before the judgment was entered.”
Hill, 277 F.3d at 708. Indeed, the circumstances under which a Rule 59(e)
motion may be granted are so limited that “[c]ommentators observe ‘because
of the narrow purposes for which they are intended, Rule 59(e) motions
typically are denied.’” Woodrum v. Thomas Mem’l Hosp. Found., Inc., 186
F.R.D. 350, 351 (S.D.W.Va. 1999) (quoting 11 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed.

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1995)). Here, the Plaintiff argues that reconsideration is necessary to correct
a clear error of law or to prevent manifest injustice.
This is now the Plaintiff’s third attempt to litigate the same issues that
have been previously addressed by two judges of this Court. The Plaintiff
makes the same arguments and cites to the same authorities she previously
presented in her Response in opposition to the Defendants’ Motion to
Dismiss, and her Objections to the Memorandum and Recommendation.
While the Plaintiff argues that the Court’s decision is “clearly erroneous,” the
Plaintiff focuses her argument on the tolling provisions applicable to 42 U.S.C.
§ 1983 claims. Those tolling provisions pertain to the issue of whether these
claims were timely filed.

The applicability of the statute of limitations,

however, was not the central issue that was presented to this Court nor was
it the focus of this Court’s Orders. The Defendants have not even asserted
that the statute of limitations had expired. Rather, the central issue presented
concerned the Plaintiff’s attempted removal of a case from state court to
federal court. The Order of this Court concerns the legal conclusion that the
federal court does not have subject matter jurisdiction when a plaintiff takes
actions that in substance and in effect serves to remove a case to federal
court after that respective plaintiff has already chosen to file her case in the
state court forum.
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This ruling follows the plain language of 28 U.S.C. § 1441 and the
congressional intent behind this statute to limit removal to only defendants.
This Court also properly relied on authority of the Supreme Court and the
Ninth Circuit, whose decisions clearly show that 28 U.S.C. § 1441 expressly
limits the right of removal to defendants and that when a plaintiff attempts
removal, such as in the present case, the federal court will not have subject
matter jurisdiction over the action. For all these reasons, the Plaintiff’s motion
for reconsideration of the August 7, 2018 Order dismissing her claims against
the SHP Defendants is denied.
The Plaintiff has also failed to show a basis for reconsideration of this
Court’s Order denying Plaintiff’s Motion to Certify Order for Appeal. The
Plaintiff argues only one basis for reconsideration of this Court’s denial of
Plaintiff’s motion, namely that she is unable to refile her 42 U.S.C. § 1983
claims in state court. [Doc. 50 at 16]. In so arguing, the Plaintiff raises the
same arguments that have already been addressed by this Court. Moreover,
the Plaintiff’s primary argument for reconsideration – that she is unable to
refile her § 1983 claim -- is belied by the fact that she in fact refiled her claims,
including her § 1983 claim, against the SHP Defendants in state court on
November 16, 2018. [See Doc. 61-1].

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In sum, the Plaintiff has not raised any additional facts or made any
additional argument to establish that the Order Denying Plaintiff’s Motion to
Certify Order for Appeal was clearly erroneous or that reconsideration is
necessary to prevent manifest injustice. Accordingly, the Plaintiff’s motion for
reconsideration of that Order is also denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to
Reconsider [Doc. 49] is DENIED.
IT IS SO ORDERED.
Signed: February 22, 2019

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