Kimner v. Duke Energy Corporation et al

Filing 14

ORDER denying Plaintiff's 12 Motion to Vacate the Court's 11 Clerk's Judgment, 10 Order on Motion for Leave to Proceed in forma pauperis Order on Motion to Dismiss, and MOTION for Recusal is DENIED. Signed by District Judge Frank D. Whitney on 8/27/2024. (Pro se litigant served by US Mail.)(brl)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:24-CV-00411-FDW-DCK
AUDREY L. KIMNER,

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Plaintiff,
v.
LYNN GOOD AND
DUKE ENERGY CORPORATION,
Defendants.

ORDER

THIS MATTER is before the Court on Plaintiff’s pro se Motion to Vacate the Clerk’s
Judgment, Vacate the Order granting Plaintiff’s Application to proceed in forma pauperis and
dismissing Plaintiff’s Complaint with prejudice, and Motion for Recusal.1 (Doc. No. 12.) As
explained in the Court’s Order, Plaintiff failed to exhaust the administrative remedies available to
her through both the Duke Energy Retirement Cash Balance Plan and the Duke Energy Retirement
Savings Plan; Plaintiff failed to present a valid Qualified Domestic Relations Order entitling her
to any portion of the Plans in the first instance; and Plaintiff failed to show any duty owed by
Defendants to Plaintiff for the status of the First Lawsuit, any breach of such duty, or any alleged
damages that resulted from said breach. (Doc. No. 10, pp. 3–4.) Additionally, the Court’s Order
also explained Plaintiff failed to assert any action on behalf of Defendant Good which indicates
active involvement in any tortious conduct. (Id., p. 4.).

The Court notes Plaintiff’s Motion’s caption states it is a “Request to . . . Recuse . . . .” (Doc. No.
12, p. 1.) Plaintiff writes “these two judges who should recuse . . . .” (Id., p. 2.) As Plaintiff does
not identify the judges she is referring to and does not make any specific arguments, the Court
finds this to be without merit.
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The Court believes Plaintiff intended to file her Motion pursuant to Federal Rule of Civil
Procedure 60(b), which provides relief from a final judgment, order, or proceeding. Relief under
this rule constitutes “an extraordinary remedy that should not be awarded except under exceptional
circumstances.” Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th
Cir. 2012). The moving party must initially show timeliness, a meritorious defense, a lack of unfair
prejudice to the opposing party, and exceptional circumstances. Dowell v. State Farm Fire & Cas.
Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). Then, the moving party must satisfy the
requirements of Rule 60(b). Id. The Court finds there is no basis to vacate the Clerk’s Judgment
and no basis to vacate its Order granting Plaintiff’s Application to proceed in forma pauperis and
dismissing Plaintiff’s Complaint with prejudice.
Plaintiff is once again strongly cautioned against repeatedly filing frivolous or improper
actions. Doing so may result in the imposition of sanctions and/or prefiling injunctions that would
limit Plaintiff’s ability to file further lawsuits in this Court.
IT IS THEREFORE ORDERED that Plaintiff’s pro se Motion to Vacate the Clerk’s
Judgment, Vacate the Order granting Plaintiff’s Application to proceed in forma pauperis and
dismissing Plaintiff’s Complaint with prejudice, and Motion for Recusal, (Doc. No. 12), is
DENIED.
IT IS SO ORDERED.
Signed: August 27, 2024

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