Tate v. NC Pepsi-Cola Bottling Company of Charlotte, INC
Filing
50
MEMORANDUM OF DECISION AND ORDER denying as untimely 48 Motion for Reconsideration. Signed by District Judge Max O. Cogburn, Jr on 10/26/11. (gpb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:09cv36
BENJAMIN TATE,
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Plaintiff,
Vs.
NC PEPSI-COLA BOTTLING
COMPANY OF CHARLOTTE, INC.,1
Defendant.
_______________________________
MEMORANDUM OF
DECISION AND ORDER
This matter is before the court on a motion for reconsideration by plaintiff [docket #
48] pursuant to F ED. R. C IV. P. 59(e).2 The court will deny the motion for reconsideration
as untimely.
I.
Background
The facts of this employment discrimination case are set forth in detail in the court’s
previous order granting defendant’s motion for summary judgment and the court need not recount
them for the purpose of this Order. Plaintiff filed his complaint on February 1, 2009, alleging
claims against defendant for employment discrimination on the basis of disability and race,
and a claim for emotional distress. On July 14, 2010, defendant moved for summary
1
The correct corporate defendant is Bottling Group LLC.
2
Although plaintiff does not specify the Rule under which the motion for
reconsideration is brought, the only procedure for such a motion is Rule 59 of the Federal Rules
of Civil Procedure.
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judgment. On August 17, 2011, the court heard oral argument from the parties on the
summary judgment motion. On August 29, 2011, the court issued a Memorandum of
Decision and Order, in which the court granted summary judgment to defendant and
dismissed the case with prejudice. The court issued a final judgment in favor of defendant
on the same day. On September 28, 2011, thirty days after the court’s order grant summary
judgment to defendant, plaintiff filed a Notice of Appeal to the Fourth Circuit. On the same
day, plaintiff filed his motion for reconsideration in this court.
II.
Analysis
F ED. R. C IV. P. 59(e) requires that a motion to alter or amend a judgment “must be
filed no later than 28 days after the entry of the judgment.” F ED. R. C IV. P. 59(e). The
court’s summary judgment Order and Judgment were both entered on Monday, August 29,
2011. Therefore, the deadline for filing a motion for reconsideration was 28 days later, on
Monday, September 26, 2011. Plaintiff did not file his motion for reconsideration until
September 28, 2011. Thus, his motion for reconsideration was untimely, and this court lacks
jurisdiction to consider the motion. Celanese Acetate, LLC v. Lexcor, Ltd., No. 3:08-cv-530FDW, 2009 WL 2253210, at *2 (W.D.N.C. July 28, 2009) (“Importantly, Rule 59(e)’s tenday limitation is not one of prudence or discretion, but of jurisdiction.”) (under a prior
version of Rule 59(e) imposing a 10-day limit).
III.
Conclusion
For the reasons stated herein, plaintiff’s motion for consideration [docket # 48] is
DENIED as untimely.
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IT IS SO ORDERED.
Signed: October 26, 2011
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