Lewis v. Smith et al
ORDER re 10 Writ of Error Coram Nobis, deemed to be an Objection is OVERRULED and the Court affirms the Orders of Judge Cayer. Signed by District Judge Max O. Cogburn, Jr on 1/4/2016. (Pro se litigant served by US Mail.)(chh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:15-cv-00606-MOC-DSC
ARCHIE L. SMITH III
SMITH, DEBNAM, NARRON, DRAKE,
SAINTISING & MYSERS
KELLY S. KING
BRANCH BANKING & TRUST COMPANY
JEFF D. ROGERS,
THIS MATTER is before the court on plaintiff’s pro se “Writ of Error Coram Nobis.”
In such pleading, plaintiff challenges the authority of Judge Cayer to enter an order extending the
time for defendants to file their answers or other responsive pleadings. For cause, plaintiff states
that she has not consented to have any matter handled by a magistrate judge and that the moving
defendants failed to send copies of their motions to her. As equitable remedies are not sought
when a legal remedy is available, the court has deemed defendant’s request to be an Objection
made in accordance with Rule 72 to the non-dispositive Orders of Judge Cayer.
To the extent defendant objects to the authority of a magistrate judge to dispose of a nondispositive pretrial motion, her objection is without legal basis and is overruled. Under 28
U.S.C. § 626(b) a magistrate judge, when so designated, has the authority to dispose of nondispositive motions such as motions for enlargement of time. Judge Cayer has been so
designated by the undersigned to exercise such authority.
To the extent defendant objects to the Orders based on non-receipt of copies of the
motions from defendants, each motion contains a certificate of service indicating that plaintiff
was sent a copy of the pleading via United States Mail. See Motions (#5 and #8). Plaintiff’s
conclusion that defendants did not send her copies is unsupported; rather, all that plaintiff can
proffer is that she did not receive such copies. Thus, the issue is whether non-receipt of the
motions forms any basis for overturning the Orders of Judge Cayer. This court has carefully
considered the motions and the relief afforded and finds that the Orders of Judge Cayer in no
way prejudice plaintiff as they simply extend the time allowed for defendants to either Answer or
otherwise respond to the Complaint, which is routinely granted in nearly every civil action. Such
objection is overruled.
Having considered plaintiff’s pro se motion and reviewed the pleadings, the court enters
the following Order.
IT IS, THEREFORE, ORDERED that plaintiff’s pro se Motion “Writ of Error Coram
Nobis” (#10), deemed to be an Objection, is OVERRULED and the court affirms the Orders of
Signed: January 4, 2016
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