Parker v. Owens
ORDER denying 18 Motion for Reconsideration. Signed by District Judge Max O. Cogburn, Jr on 3/12/2018. (Pro se litigant served by US Mail.)(chh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:17-cv-00720-MOC-DSC
THIS MATTER is before the Court on plaintiff’s Motion to Amend Order Dated March
8, 2018, Pursuant to Rule 60 (#17) (hereinafter “Motion to Amend”), which plaintiff filed March
12, 2018. Immediately after filing that motion, plaintiff filed a Notice of Appeal (#18). Thus,
before the Court can address the substance of the motion, two procedural concerns must first be
Civil Rule 62.1
Traditionally, the filing of an appeal divests the district court of jurisdiction. However,
Rule 62.1 of the Federal Rules of Civil Procedure provides district court with the ability to address
certain motions filed during the pendency of an appeal. In particular, Rule 62.1(a) provides, as
(a) Relief Pending Appeal. If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is
pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands
for that purpose or that the motion raises a substantial issue.
Fed.R.Civ.P. 62.1. Thus, if the Court were to determine that the instant motion filed after the
Notice of Appeal, it would be limited to either denying the motion or providing the appellate court
with an indicative ruling that it intended to grant the motion or that the motion raised an issue
requiring additional consideration. Although it may have been fortuitous for plaintiff, it appears
that the Motion to Amend was filed before the Notice to Appeal, albeit nearly instantaneously.
Appellate Rule 4(a)
A court may consider, without resort to Rule 62.1, motions listed under Rule 4(a)(4) of the
Federal Rules of Appellate Procedure, when they are filed before the Notice of Appeal. Here, the
Motion to Amend was filed as pleading number 18 and the Notice of Appeal was filed as pleading
number 19. The Court finds that consideration of the Motion to Amend under appellate Rule 4(a)
is appropriate inasmuch as the Motion to Amend was filed first and, to the extent the filing may
have been simultaneous, it is more advantageous for the plaintiff for such consideration to be
plenary. While plaintiff cites Rule 60 in support of his Motion to Amend, Rule 59(e) governs
motions to amend and Rule 60 provides for relief from judgment and orders based on clerical error,
oversight, and mistakes. See Fed.R.Civ.P. 60; c.f. Fed.R.Civ.P. 59. However, both motions are
listed under appellate Rule 4(a)(4). See Fed.R.App.P. 4(a)(4)(iv) & (vi). Thus, the Court may
dispose of the instant motion by either granting or denying the relief sought therein. Fed.R.App.P.
The Court has fully reviewed plaintiff’s Motion to Amend, the Memorandum attached
thereto, and his exhibits. For cause, defendant states in relevant part that the “Court has not
reviewed Plaintiff’s Memorandum of Law supporting objections with evidence filed March 5,
2018.” This is not an accurate statement. In its Order (#16) overruling plaintiff’s Objections, this
Court specifically cites plaintiff’s March 5th filling (#15) at page two of the Order. The Court
then went on to address the only substantive argument made in that “Reply,” which concerned
plaintiff’s mistaken conclusion that North Carolina, concerning identifying a public policy
violated, as somehow precluding application of federal law to that claim See Reply (#15) at 1.
Plaintiff was, as he continues to in the 32 pages he has now submitted, confused over the source
of the right conferred and law that governs who can be sued by asserting that right. While the
Court agrees that a claim under the NCEEPA springs from the public policy of North Carolina,
that public policy is identical (for purposes of this discussion) to the rights plaintiff also asserted
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. State and federal law are also
harmonious on who can be sued under those provisions, and that does not include supervisors.
Chung v. BNR, Inc./N. Telecom, Inc., 16 F.Supp.2d 632, 634 (E.D.N.C.1997); Lorbacher v.
Housing Authority, 493 S.E.2d 74, 79 (N.C.Ct.App.1997).
Much of the remainder of the Memorandum filed in support of the Motion to Amend
attacks this Court’s Order dismissing the action. See “Memorandum of Law Support Plaintiff’s
Motion to Amend Judgement Pursuant to Rule 60” (#18) (errors in the original). The Court has
fully considered those arguments and can find no reason to alter or amend its decision dismissing
this case. Plaintiff clearly does not acknowledge that by asserting federal causes of action in his
Complaint in state court the defendant had the absolute right to remove those claims to this Court.
Without such recognition as a starting point, the Court clearly understands plaintiff’s confusion
that under the state and federal law employment discrimination laws he has invoked, there is no
supervisory liability. Likewise, there is no persuasive basis for amending the Order dismissing the
supplemental state law claims.
Plaintiff is advised that this Court takes no pleasure in dismissing his claims; however, its
job is to follow the law as it is handed down. If plaintiff believes that this Court is wrong in its
application or reading of the law, his recourse is to appeal to the Court of Appeals for the Fourth
Circuit. There simply is no reason in any of the pleadings that he has filed to amend the earlier
Order or Judgment, remand to state court, or allow this case to proceed any further. The Court
will, therefore, deny the Motion to Amend for the reasons discussed herein and in its previous
Order (#16), which is fully incorporated by reference.
IT IS, THEREFORE, ORDERED that plaintiff’s Motion to Amend Order Dated March
8, 2018, Pursuant to Rule 60 (#18) is DENIED.
Plaintiff is advised that, with the denial of his Motion to Amend, the Notice of Appeal is
now effective. In accordance with Federal Rule of Appellate Procedure 4(a)(4)(B)(ii), if plaintiff
intends to also challenge this Order on appeal he must file a either a separate Notice of Appeal or
an Amended Notice of Appeal, in compliance with appellate Rule 3(c), within the time prescribed
under Rule 4(a)(1), which is measured from the date this Order is entered. Plaintiff is advised that
no additional fee is charged for filing an Amended Notice of Appeal.
Signed: March 12, 2018
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