Combs et al v. Ashe County et al

Filing 102

ORDER re: 94 Notice of Appeal and Motion for Stay; affirming the Magistrate Judge's Order and denying Plaintiff's Motion to Stay. Signed by Senior Judge Graham Mullen on 11/20/2017. (Pro se litigant served by US Mail.)(nvc)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION DOCKET NO. 5:14-cv-00136 )) TOMMY R. COMBS Plaintiff, v. ASHE COUNTY, et al, Defendants. ) ) ) ) ) ) ) ) ) ) ORDER THIS MATTER is before the Court upon Plaintiff’s Notice of Appeal and Motion for Stay (Doc. No. 94). This issue is now ripe before this Court. On August 15, 2014, Plaintiff filed claims on behalf of himself and his deceased brother, R.J. Combs, related to the removal of property from their farm that occurred on August 16, 2011. On July 6, 2016, the Court dismissed without prejudice all claims brought on behalf of R.J. Combs for lack of standing. The Court noted that R.J.’s sister, Florence Combs Miller, was appointed to be the executrix of R.J.’s estate and that she was not a party to the litigation. Almost a year later, on July 5, 2017, Florence Combs Miller filed a Motion to Intervene. The magistrate judge denied the Motion to Intervene, concluding that the “proposed intervention and amendment are futile.” Plaintiff and Ms. Miller timely filed their Notice of Appeal of this order. Pursuant to Rule 72 of the Federal Rules of Civil Procedure, a District Court reviewing an order on a nondispositive motion must modify or set aside any part of the order that is clearly erroneous or is contrary to law. In the Notice of Appeal of this order, Plaintiff and Ms. Miller claim that “[t]here is no time limit on discrimination in North Carolina.” However, the magistrate judge correctly found that any claims brought by the Estate of R.J. Combs would be futile because they are brought well after the expiration of the statute of limitations. Thus, the decision of the magistrate judge is not clearly erroneous or contrary to law. Further, Plaintiff does not allege any reason why a stay would be warranted in this matter nor does Plaintiff actually request a stay in the body of the Notice of Appeal. IT IS THEREFORE ORDERED that the magistrate judge’s order is AFFIRMED and that Plaintiff’s Motion for Stay is DENIED. Signed: November 20, 2017

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