Reid v. State of North Carolina

Filing 34

ORDER denying 29 Motion forfor New Trial & Relief from Judgment; denying as non-justiciable 30 Motion to Join. Signed by District Judge Max O. Cogburn, Jr on 12/9/2011. (Pro se litigant served by US Mail.) (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv422
O’MARR S. REID,

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Plaintiff,
Vs.
STATE OF NORTH CAROLINA,
Defendant.
_______________________________

ORDER

THIS MATTER is before the court on plaintiff’s “Motion for New Trial & Relief
From Judgment” (#29), which has been filed post-judgment along with a number of other
post-trial motions which are non-justiciable. As no trial was conducted in this matter,
plaintiff’s request for a new trial will be summarily denied.
The court has, however, considered such motion in a light most favorable to plaintiff,
and it appears that he also seeks relief under Rule 60(b), Federal Rules of Civil Procedure,
from the Judgment (#25) of this court, which dismissed plaintiff’s action in accordance with
Rule 12(b)(1) for the reasons discussed in the court’s Memorandum of Decision and Order
(#24), which affirmed the Memorandum and Recommendation (#16) of Honorable David S.
Cayer, United States Magistrate Judge. In his motion, plaintiff asserts thirteen different errors
of law and fact he believes this court committed in conducting its de novo review of Judge
Cayer’s Memorandum and Recommendation. In support of such contentions, plaintiff has
submitted a Memorandum in Support of Motions (#31), where he details the reasons he
believes the court has erred.
The court has considered each contention and supporting argument in light of Rule
60(b), which provides for post-judgment relief where the moving party demonstrates:
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(1)
(2)
(3)
(4)
(5)
(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
any other reason that justifies relief.

Fed.R.Civ.P. 60(b). While plaintiff cited the court to Rule 60(b)(1), the court has considered
plaintiff’s motion and brief under Rule 60(b)(1)-(6). Even when the motion is broadly
considered, the court can find no basis for granting the relief requested by plaintiff and
reaffirms its earlier Memorandum of Decision and Order (#24).

ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s “Motion for New Trial & Relief
From Judgment” (#29) is DENIED. All other motions filed by plaintiff are denied as nonjusticiable.

Advice to Pro Se Plaintiff
In accordance with Wilder v. Chairman of the Central Classification Bd., 926 F.2d 367, 371
(4th Cir.)("while not mandated, the preferable practice is to include a statement to all final orders
involving pro se litigants setting forth the litigants' appellate rights"), cert. denied, 502 U.S. 832
(1991), plaintiff is advised that while a properly submitted motion for new trial could work
to enlarge the time for appeal (which did not occur in this case because there was no trial
from which plaintiff could properly seek a new trial), a Rule 60(b) motion does not extend
the time for taking an appeal. See Notes of Advisory Committee on Rules—1937. Plaintiff
is further advised to closely review the “Advice of Appellate Rights” supplied in the
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Memorandum of Decision and Order and note well that Judgment was entered November 28,
2011.

Signed: December 9, 2011

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