Johnson v. Hendrick Automotive Group
ORDER granting in part and denying in part 104 Motion for Reconsideration and 106 Motion for Reconsideration as set forth in order; denying 122 Motion for Reconsideration of costs taxed. Signed by Senior Judge Graham Mullen on 12/5/2011. (Pro se litigant served by US Mail.)(bsw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:10-cv-109-W
RAYMOND A. JOHNSON,
HENDRICK AUTOMOTIVE GROUP,
and HENDRICK HONDA
THIS MATTER comes before the Court on Plaintiff’s Motion for Reconsideration of
Summary Judgment (Doc. 104), Plaintiff’s Amended Motion for Reconsideration of Summary
Judgment (Doc. No. 106), and Plaintiff’s Motion for Reconsideration of Costs Taxed (Doc. No.
122). Defendants submitted responses (Docs. Nos. 114, 123) articulating grounds for denying
Plaintiff’s motions. After reviewing all pertinent documents and considering applicable case law,
the Court GRANTS IN PART and DENIES IN PART Plaintiff’s Motions for Reconsideration of
Summary Judgment (Doc. No. 104, 106), and AMENDS but does not vacate the Court’s order (Doc.
No. 99) granting summary judgment for Defendant as stated herein. The Court also DENIES
Plaintiff’s Motion for Reconsideration of Costs Taxed (Docs. Nos. 122) for the reasons stated
Plaintiff does not lodge any specific objections to the procedural and factual background
contained in the Court’s order dated May 3, 2011 (Doc. No. 99). Therefore, the portion of the order
entitled “Background” is hereby adopted and incorporated by reference as if fully set forth herein.
Following entry of the order, Plaintiff filed a Motion for Reconsideration (Doc. No. 104), an
Amended Motion for Reconsideration (Doc. No. 106), and a Motion for Reconsideration of Costs
Taxed (Doc. No. 122).
Plaintiff’s Motion for Reconsideration is based on purported authentication of a previously
inadmissible document. At the summary judgment hearing, Plaintiff sought to introduce into
evidence a document that contained notes of Employment Security Commission (“ESC”)
Adjudicator Laura Gray (“Gray Notes”). Plaintiff alleges that the Gray Notes tended to prove that
Hendrick Honda disputed Plaintiff’s right to unemployment benefits, which Plaintiff contends,
Defendants were contractually obligated not to do. On May 3, 2011, the Court issued an order
granting Defendants’ motion for summary judgment and ruling on several other pending motions.
(Doc. No. 99). The Court excluded the Gray Notes from evidence as inadmissible because they
were not authenticated. In so doing, the Court noted that “questionable nature” of the document,
referenced it as Plaintiff’s “lone piece of evidence,” and recognized the “potential significance of
the document.” (Doc. No. 99, p. 7). The Court stopped short, however, of stating that authentication
of the document would result in a different ruling on the pending motions, instead concluding that
the record demonstrates “Plaintiff suffered no injury whatsoever, and especially not at the hands of
Defendant.” (Doc. No. 99, p.8).
The summary judgment order did not result in a final judgment because Defendants’
counterclaims against Plaintiff remained. Defendants subsequently dismissed their counterclaims,
and final judgment issued on May 17, 2011 (Doc. No. 103). Plaintiff filed the instant “Motion for
Reconsideration” the same day the clerk’s office issued the final judgment. Plaintiff attached a
“Certification of Authenticity of Documents” signed by ESC Assistant Secretary Viline V.
Cherlinczuk and dated May 13, 2011, to his Motion for Reconsideration. (Doc. No. 104-1, p.3).
Such certification purports to authenticate Gray’s Notes. Consequently, Plaintiff petitions the Court
to reconsider its grant of Defendants’ motion for summary judgment on the basis of newlyadmissible evidence.
II. STANDARD OF REVIEW
“The Federal Rules of Civil Procedure do not provide for a postjudgment ‘motion for
reconsideration.’ Rather, they provide for a Rule 59(e) motion to alter or amend the judgment or
a Rule 60(b) motion for relief from judgment.” Katyle v. Penn. Natl. Gaming, Inc., 637 F.3d 462,
471 n. 4 (4th Cir. 2011). The Fourth Circuit has also stated, “‘In this circuit, the standard governing
relief on the basis of newly discovered evidence is the same whether the motion is brought under
rule 59 or rule 60. . . .’” Henley v. FMC Corp., 20 Fed. Appx. 108, 114-15 (4th Cir. 2001) (quoting
Boryan v. United States, 884 F.2d 767, 771 (4th Cir.1989) (internal citation omitted)).
Here, Plaintiff did not specify which Federal Rule of Civil Procedure he relied upon to bring
his motion. The Court sua sponte construed Plaintiff’s pro se filing as a “Motion for Relief from
Judgment under Rule 60” of the Federal Rules of Civil Procedure. (Doc. No. 105). The Court notes,
however, that upon further review, the motion for reconsideration was filed within the 28-day
window allowed under Rule 59(e), and therefore, it appears that Rule 59, as opposed to Rule 60,
applies. The Fourth Circuit recently stated, “We have squarely held . . . that a motion filed under
both Rule 59(e) and Rule 60(b) should be analyzed only under Rule 59(e) if it was filed no later than
1 days after entry of the adverse judgment and seeks to correct that judgment.” Robinson v. Wix
Filtration Corp., LLC, 599 F.3d 403, 412 (4th Cir. 2010) (citing Small v. Hunt, 98 F.3d 789, 797
(4th Cir.1996); see also Vaughan v. Murray, No. 95-6081, 1995 WL 649864, at *3 n. 3 (4th Cir.
Nov.6, 1995)). Therefore, the Court will consider Plaintiff’s motion in light of Rule 59(e), which
the Court hereby deems more applicable, as opposed to Rule 60 as referenced in the notice issued
In December 2009, after the filing of the motion before the court in Robinson, Rule
59(e) was amended to extend the relevant time period from ten days to twenty-eight days.
by the Court as to how it would construe Plaintiff’s motion.
In order to obtain relief under rule 59(e), courts have recognized only three limited grounds
for granting Rule 59(e) motions: “‘(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.’” United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d
284, 290 (4th Cir.2002) (quoting Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir.1998)); see also Hutchinson v. Staton, 994 F.2d 1076,1081 (4th Cir.1993). There has been no
intervening change in controlling law, and neither side argues such. The sole basis for the motion
is the reconsideration of the evidence – Gray’s Notes. Thus, the Court considers the issue at bar in
light of the second and third grounds announced in Westinghouse, supra.
A. Reconsideration of Summary Judgment
At the outset, the Court notes that the only issue before the Court is whether the Court erred
in excluding the Gray Notes as evidence in ruling on Defendant’s motion for summary judgment.
All other portions of the Court’s previous order are neither based on nor supported by the Gray
Affidavit that Plaintiff now seeks to authenticate and offer as “new evidence.”
The Court originally excluded Gray’s Notes because Plaintiff had failed to authenticate the
document pursuant to the Federal Rules of Evidence. “‘Although the pleadings of pro se litigants
are construed liberally, there is no lower standard when it comes to rules of evidence and
procedure.’” In re Thomas, F. Supp 2d., 2008 WL 112042 *3 n.4 (W.D.Va. 2008) (quoting Powers
v. Runyon, 974 F.Supp. 693, 696 (S.D.Ind.1997)). “While pro se litigants are afforded some latitude
when it comes to technical procedural requirements, the Court expects them to follow the same rules
of evidence and procedure as is required by those who are authorized to practice law.” El Rey v.
Celebration Station, 2006 WL 2811497 *2 (W.D.N.C. 2006); see also Klabiner v. Rinaldi, 2001 WL
823529 *5 (M.D.N.C. 2001) (“Additionally, there is no establishment of the authenticity of any
document put before the court by [the plaintiffs]. Although pro se plaintiffs are afforded liberal
construction of their complaints, motions and other pleadings, the court cannot ignore the rules of
evidence and procedure at this stage of the litigation.”). Plaintiff now seeks to cure his deficiency
and revisit the Court’s award of summary judgment for Defendant.
Numerous problems exist to preclude the Court from granting Plaintiff the relief he seeks.
Presuming without deciding that Plaintiff could satisfy the requirements for reconsideration under
Rule 59(e)2 and that Gray’s Notes have been properly authenticated, the Court still cannot consider
the contents of the document. “Rule 501 mandates that state law determines evidentiary privileges
that apply to state claims litigated in federal court.” Hartsell v. Duplex Products, Inc., 895 F.Supp.
The Court notes that Plaintiff faces great difficulty in satisfying such requirement.
First, the evidence is not new, nor is it newly discovered. It simply did not comply with the
Rules of Evidence the first time Plaintiff sought to introduce it. The plain language of Rule
59(e) does not compel reconsideration where the evidence under consideration is not “new”
evidence and could have been “discovered” with reasonable diligence. Plaintiff had access to all
parties necessary to achieve authentication prior to the summary judgment hearing. Thus, with
reasonable diligence, the document could have been authenticated at the summary judgment
stage. A Rule 59(e) motion “may not be used to relitigate old matters, or to raise arguments or
present evidence that could have been raised prior to the entry of judgment.” Westinghouse
Savannah River Co., 305 F.3d at 290 (quoting 11 Wright, et al., supra, § 2810.1, at 127–28).
Second, in order to rely on newly discovered evidence as the basis for his Rule 59(e) motion,
Plaintiff “must produce a ‘legitimate justification for not presenting’ the evidence during the
earlier proceeding.” Small v. Hunt, 98 F.3d 789, 798 (4th Cir. 1996) (quoting RGI, Inc. V.
Unified Indus., Inc., 963 F.2d 658, 662 (4th Cir. 1992)). Plaintiff’s asserted justification consists
of his pro se status and lack of familiarity with the Federal Rules of Evidence. The Court is
unaware of case law within this Circuit finding pro se status and lack of legal training alone to
constitute “legitimate justification” sufficient to satisfy this requirement. Moreover, while
district courts must liberally construe pro se complaints, courts cannot act as the pro se plaintiff's
advocate. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978) (recognizing that district courts
are not expected to assume the role of advocate for the pro se plaintiff); see also Brock v.
Carroll, 107 F.3d 241, 243 (4th Cir.1997) (Luttig, J., concurring); Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir.1985).
100, 101 (W.D.N.C. 1995) (citing Doe v. Am. Nat'l Red Cross, 788 F.Supp. 884, 888 (D.S.C.
1992)). Under North Carolina law,
“All letters, reports, communication, or any other matters, either oral or written,
including any testimony at any hearing, from the employer or employee to each other
or to the Commission or any of its agents, representatives, or employees, which
letters, reports, or other communication shall have been written, sent, delivered, or
made in connection with the requirements of the administration of this Chapter, shall
be absolutely privileged communication in any civil or criminal proceedings.”
N.C. Gen. Stat. § 96-4(t)(5)(2009).3 Such privilege applies even when the statement itself forms the
basis for the cause of action in a separate suit. See Griffin v. South Piedmont Community College,
3:10-cv-412, 2011 WL 3841562 *8 (W.D.N.C. Aug. 30, 2011) (“To the extent that plaintiff’s
defamation claim is based on a statement made to the ESC, the statement is absolutely privileged
and cannot serve as the basis for plaintiff’s defamation claim.”); see also Howard v. Food Lion, Inc.,
232 F. Supp. 2d 585, 598-99 (M.D.N.C. 2002) (“It is well established that such privileged statements
made in a judicial or quasi-judicial context do not support a civil action for defamation or libel in
North Carolina.”) (citing Jarman v. Offutt, 239 N.C. 468, 472, 80 S.E.2d 248, 251 (1954); Gibson
v. Mutual Life Ins. Co. of New York, 121 N.C.App. 284, 290–91, 465 S.E.2d 56, 60–61 (1996));
Hartsell, 895 F.Supp. at 102 (striking the plaintiff’s use of ESC testimony to support state law claims
for intentional infliction of emotional distress and for negligent retention). Accordingly, Gray’s
Notes are privileged and inadmissable at trial for purposes of defeating Defendant’s summary
judgment motion on Plaintiff’s claim under state law for breach of contract.
Therefore, the Court grants Plaintiff’s Motion for Reconsideration in part for purposes of
explaining an alternative basis for ruling that Gray’s Notes were inadmissible evidence. Plaintiff’s
This statute was amended by the North Carolina General Assembly after the summary
judgment order here was entered. See North Carolina Laws S.L. 2011-401 (S.B. 532) (changing
“Commission” to “Division” and codifying as N.C. Gen. Stat. § 96-4(x)(5)). These
amendments, however, did not change the substance or application of the privilege as stated
Motion is denied in part to the extent it requests this Court to change its ruling that granted
Defendant’s motion for summary judgment.
B. Reconsideration of Costs Taxed
Plaintiff has also moved the Court to “appeal the taxation cost awarded to Defendants . . .
.” (Doc. No. 122, p.1). Federal Rule of Civil Procedure 54(d)(1) provides that “costs. . . shall be
allowed as of course to the prevailing party unless the court otherwise directs.” In fact, the Fourth
Circuit has held that “the rule gives rise to a presumption in favor of an award of costs to the
prevailing party.” Teague v. Bakker, 35 F.3d 978, 996 (4th Cir. 1994). Moreover, federal law 28
U.S.C. § 1920 and Local Rule L.R. 52.1(F) provide adequate authority to a judge or clerk of any
Court of the United States to tax costs in certain instances.
Here, following motion by Defendants (Doc. No. 109), the Clerk of Court by Order awarded
a total of $1,359.55 to Defendants as compensation for deposition transcript costs and costs of
copying documents related to the case. (Doc. No. 121). Plaintiff’s central assertion is that the
award is unreasonable because Defendants acted in bad faith. Plaintiff proffers no legal principal
to warrant reconsideration of the reasonable costs awarded in this case. Because Plaintiff offers no
basis in law for challenging the Order awarding costs, and because the award is reasonable pursuant
to federal law and local rules, Plaintiff’s Motion for Reconsideration of Costs Taxed is denied.
For the forgoing reasons, Plaintiff’s Motion for Reconsideration (Doc. No. 104) and
Amended Motion for Reconsideration (Doc. No. 106) are GRANTED IN PART and DENIED IN
PART as explained above. Moreover, Plaintiff’s Motion for Reconsideration of Costs Taxed (Doc.
No. 122) is DENIED.
IT IS SO ORDERED.
Signed: December 5, 2011
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