Clear Sky Car Wash LLC et al v. City of Chesapeake Virginia et al

Filing 63

OPINION AND ORDER denying plaintiff's motion for reconsideration under rule 60(b) and alternative motion to amend under Rule 15. Signed by District Judge Mark S. Davis on 4/11/13. Copies distributed as directed.(afar)

_FILED_
UNITED

STATES

DISTRICT

EASTERN DISTRICT
Norfolk

COURT

APR 12 2013

OF VIRGINIA

Division

CLERK. US ^'STRICT COURT
NORFOLK. VA

CLEAR SKY CAR WASH,

et

LLC,

al.,

Plaintiffs,
v.

Civil

CITY

Action No.

2:12cvl94

OF CHESAPEAKE,

VIRGINIA,

et al.,
Defendants.

OPINION

AND

ORDER

This matter is before the Court on Plaintiffs Clear Sky Car
Wash LLC
Sky

("Clear Sky"),

Operating"),

Einsmann's

Clear Sky Car Wash Operating LLC ("Clear

Samuel

("Einsmann")

Jacknin

("Jacknin"),

(collectively

"Plaintiffs")

and

Charles

Motion

for

Relief from Judgment pursuant to Federal Rule of Civil Procedure
60(b)
of

and alternative

Civil Procedure 15,

In such motions,
ruling

the

to grant
reasons

to

Amend pursuant

filed on January

16,

to

2013.

Federal
ECF No.

Rule
51.

Plaintiffs ask this Court to reverse its prior

dismissing

necessary,
For

Motion

the

case

Plaintiffs
set

forth

with

prejudice

leave
below

Reconsideration and alternative Motion

and,

if

deemed

to amend their Complaint.
Plaintiffs'

Motion

to Amend are DENIED.

for

I. Factual History1
The

instant

Department

of

States

Route

Bridge

over

dispute

Transportation

17/Dominion
the

Project

City

employees,

including

the

of

and

to

widen

replace

United

managed

the

Steel

Elizabeth

the

Virginia
Way

to

Virginia

River

under

contract

("City")

Manager,

by

and

Defendant

its

Carole

and a Maryland corporation retained by

Defendant

("Greenhorne")

of

Defendant

project

of

been

Chesapeake,

("Gillespie"),

City,

has

a

and

Branch

Right

of

("VDOT")

Southern

Defendant

out

Boulevard

This

("Project").

Gillespie

arises

Greenhoren

its

employees,

&

O'Mara

Defendants

Incorporated

Thomas

Copeland

("Copeland"), Evelyn Jones, and Daniel Jones.2
Plaintiffs

920

Great

Plaintiff

have

Bridge

owned and operated a

Boulevard in Chesapeake,

Clear Sky owns

the

land,

other aspects of this business.
City

received

car

approval

from Defendant VDOT.

of

the

wash business

Virginia

since

car wash equipment,

at

2008.

and all

On February 17, 2009, Defendant
Project's

major

design

features

Such design features contemplated the fee

1 The facts recited here are drawn from Plaintiffs' Complaint and are
assumed true for the purpose of deciding the motions currently before
the Court.
They are not to be considered factual findings for any
purpose other than consideration of the pending motions.
A more
detailed

Order

factual

dismissing

history

the

("Dismissal Order").

may

instant

be

found

action,

See ECF No.

in

this

entered

Court's

on

Opinion

December

18,

and

2012

47.

2 Defendant City retained Defendant Greenhorne to perform right of way
acquisition and related services for the Project.

simple

use

of

businesses,

land

belonging

including all

of

to

private

Plaintiff

Great Bridge Boulevard ("Land").

individuals

Clear Sky's

and

land at

920

Defendant City began acquiring

parcels of land for the Project in June 2010 and first contacted
Plaintiffs concerning their Land in October 2010.
The

dispute

Plaintiff

acquire

instant

Clear

concerns

Sky's

Defendant

Land.

City's

Specifically,

twice allowed Defendant City to enter and appraise
its

fixtures.

Such appraisals were based on

footage—as opposed to pad site—value,

noting a higher value
Defendant

Gillespie,

than the
selected

the Land for acquisition,

expressed

concerns

selected,

posing several questions

some

delay,

first

by

email

expressed

their

Following

the

Defendant
and

then

the Land and
Land's

square

appraisal

through

and approved

as communicated to Plaintiffs through

Greenhorne.

After

Plaintiffs

Defendant City,

first

Defendant

about

the

to

with the second appraisal

first.
the

attempts

such communication,

appraisals

City

the

responded

again

dissatisfaction

about

and

by
with

the

Plaintiffs

final

value

appraisal process.
to

letter

such

questions,

after

Plaintiffs

Defendant

City's

initial

response.

The

central

discussions
repeatedly

appraise

was

issue

the

propriety

expressed

the

to

Land and

concerns

the

the
of

parties
the

throughout

appraisals.

regarding

the

Plaintiffs

methods

resulting valuations.

their

used

Further,

to

upon

learning
while

that

Defendant

overseeing

Plaintiffs

Copeland

Project

objected

to

had

reviewed

negotiations

the

lack

of

the

and

an

appraisals

acquisition,

independent

review

appraiser.
Although

the

parties

were

primarily

concerned

with

the

appraisal,

they did also apparently engage in limited discussion

concerning

certain

Specifically,

relocation

during

benefits

the parties'

discussions,

Defendant

City

whether

it

Defendant

City

advised

Plaintiffs

with

such

advised

benefits

that

no

upon

such

payable

would

provide
that

application

Plaintiffs asked

would

been

benefits.

provide

Defendant

had

Plaintiffs.

relocation

it

application.

to

them

City

further

No

further

made.

discussion or application concerning such benefits occurred.
Plaintiffs

and

Defendant

throughout

November

and

regarding

Plaintiffs'

City

December

concerns

City advised Plaintiffs
$2.15

million

analysis

The

from

Court

Complaint
alleged

"based

the"

notes

are

events

that

on

that

the

occurred.

corresponding

into

On January 27,

January

City's

2012

appraisal

2012,3 Defendant

it calculated just compensation at
original

appraisal.

dates

with
The

and

Defendant

unchanged,

first

inconsistent

2011

with

of Plaintiff Clear Sky's Land.

continued

Defendant

provided

respect

context

of

calculations

to
the

in

the

this

and

City's

Deputy

section

of

the

which

the

year

Complaint

in

leads

to

the

conclusion that all events described in Paragraphs 138 through 154 of
the Complaint occurred in 2012.
Therefore, the Court has adjusted the
dates accordingly.

City

Attorney

counsel,

subsequently

advised

the

through

that they could appeal Defendant City's "calculation of

benefits."

Finally,

after

several

discussions,

Defendant

City

notified

not

Plaintiffs,

discuss

settlement

nor

take

months

of

back-and-forth

Plaintiffs

further

action

that

until

it

would

Plaintiffs

obtained their own appraisal.
On

March

Take in

2012,

Defendant

the Circuit Court

defeasible

Sky.

22,

fee

interest

On March 30,

directly

to

for the

in

the

City

filed

City of

Land

a

Certificate

Chesapeake

owned

by

of

to gain a

Plaintiff

Clear

2012, Defendant City issued a written demand

Plaintiffs

requiring

them to

vacate

and

turn over

possession of such Land no later than May 1, 2012.
II.

On

April

11,

Procedural History

2012,

Plaintiffs

removed

the

Certificate

of

Take to this Court4 and simultaneously filed the separate instant
action

against

Defendants,

comply with the

4 By

Opinion

remanded

the

federal

and

Order

Certificate

alleging

that

Defendants

Uniform Relocation Assistance

entered

on

of

back

Take

September
to

the

5,

2012,

Circuit

failed

to

and Real

this

Court

Court

for

the

City of Chesapeake on the ground that this Court lacked subject matter
jurisdiction over a condemnation proceeding instituted in state court
and removed to federal court without a necessary federal question or
individual right of action.
City of Chesapeake, Va. v. Clear Sky Car
Wash,

LLC,

No.

In so holding,

2:12cvl95,

the

Court

(E.D.

Va.

specifically held that

2012

WL

3866508

the

Sept.

5,

2012).

land acquisition

provisions of the URA did not create a private right of action.
Id.
Because the Complaint in this action alleged several violations of
those provisions, the Court incorporated and referred to its prior
Opinion and Order ("Remand Order") in the Dismissal Order from which
Plaintiffs now seek relief.

Property

Acquisitions

Assisted

Programs

Plaintiffs'

Act

Violations

under

United

States

under

the

(4)

1985

Breach of

Fifth

in

and

of

(3)

(conspiracy),
and

(6)

the

URA;

so,

violated
Plaintiffs

(2)

Due

Amendments

Protection

to

the

Violations
and

Federally

rights.

Equal

Rights

and

doing

Fourteenth

Amendment

Civil

Contract;

and,

Violations

Fourteenth

Federal

constitutional

Constitution;

Constitution;

(5)

and

(1)

the

for

("URA")

statutory

alleged six Counts:

§§ 1983,

Policies

Process
to

the

Violations

United

Equitable

42

U.S.C.

(attorneys'

1988

under

States

fees);

Estoppel.

Plaintiffs

sought declaratory and injunctive relief against all Defendants,
as well as damages of not less
judgment

interest,

and

than $9 million,

attorneys'

fees

as

pre-

to

all

and postDefendants

except Defendant VDOT.
All

named

Defendants

filed

motions

to

Complaint pursuant to Federal Rule of Civil
ECF Nos.

7,

12,

24,

29,

31.

dismiss

Plaintiffs'

Procedure 12(b)(6).

The majority of

such motions

also

sought dismissal under Federal Rule of Civil Procedure 12(b)(1).
On December 18,

2012,

this

Court

entered an Opinion and Order,

granting Defendants' motions to dismiss.
On

January

Reconsideration
60(b)

or,

in

16,

2013,

pursuant

the

to

ECF No. 47.

Plaintiffs
Federal

alternative,

Motion

filed

Rule
for

of

a

Motion

Civil

Leave

to

for

Procedure
Amend

the

Complaint

pursuant

Plaintiffs'

I

(URA

to

motions

Federal

Rule

concern only the

violations).

ECF

No.

of

Civil

Court's

51.

Procedure

dismissal

Specifically,

of

15.5
Count

Plaintiffs

contend that the Court erred in finding that they had failed to

allege that

they were denied non-monetary relocation assistance

in violation of

also

42

§

U.S.C.

conflated

the

4625

§

extent

the

in

Court

§ 4625.

to

words"
ECF

opposition
Department

of

All

Jones,

and

timely

filed

responses

respectively.

Daniel

ECF

Nos.

on

55-57.

response on February 1, 2013.

No.

the

51.

"to

add

responses

in

United

and

25,

Defendant

58.

few
of

Greenhorne,

21,

a

violations

filed

City

To

alternatively

alleged
have

and

ECF No.

Court
the

Defendants

January

this

misunderstood

Plaintiffs

("USDOT");

Jones;

Id. ; see

and

Defendants'

Transportation

that

Complaint

Motion.

URA.

ECF

Defendants

Plaintiffs'

Evelyn

their

the

argue

URA

otherwise,

amend

50.

the

of

Complaint.

regarding

No.

to

of

the

finds

permission

II

Plaintiffs

requirements

allegations

clarifying

Subchapter

4625.

related

request

of

States

Copeland,

Gillespie

and

VDOT

29,

filed

all

2013,
a

late

Plaintiffs failed to

' Plaintiffs apparently attempted to file the instant motion on January
15,

2013.

ECF No.

49.

However,

Plaintiffs

itself and instead filed two copies of
Support

of

Motion

for

Reconsideration.

ECF

first filed the motion on January 16,

2013,

filed Memorandum in Support.

50-51.

ECF Nos.

failed to file

the motion

the accompanying Memorandum in
Nos.

49-50.

Plaintiffs

resting on its previously
Plaintiffs also filed a

Notice of Appeal on January 16, 2013.
ECF No. 52.
Plaintiffs' appeal
has not yet been docketed with the Court of Appeals for the Fourth
Circuit due to the pending motions before this Court.
See ECF No. 54.

file any reply.
motions.

As

No party has requested a hearing on the pending

the

time

for

filing

has

now

passed,

the

instant

motions are ripe for this Court's review.
III.

Standard of

A. Rule

Federal

Rule

of

Civil

60(b)

Procedure

seek relief "from a

final judgment,

R.

In order

Civ.

P.

60(b) .

"the

motion,

movant

meritorious defense,
party,
F.2d

and
204,

Steamship

must

206-07
Co.,

a

party

to

to bring an appropriate Rule

60(b)

a

showing

96,

of

unfair prejudice

Cir.

F.2d

permits

Fed.

make

order,

circumstances."

(4th

608

60(b)

or proceeding."

a lack of

exceptional

Review

1984)
102

timeliness,
to

Werner

(citing

(4th

Cir.

a

the opposing

v.

Carbo,

Compton

v.

1979)).

731
Alton

Once

a

movant has demonstrated the four threshold requirements,

Federal

Rule

under

which

These

grounds

court

of

Civil

may

Procedure

grant

relief

60(b)
from

lists
a

final

the

grounds

judgment.

are:

(1)
mistake,
inadvertence,
surprise,
or
excusable
neglect;
(2)
newly discovered evidence
that,
with
reasonable diligence, could not have been discovered
in

time

to

move

for

a

new

trial

under

Rule

59 (b) ;

(3) fraud
(whether
previously
called
intrinsic
or
extrinsic),
misrepresentation,
or misconduct by an
opposing party;
(4)
the judgment is void;
(5)
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 (6) any other reason that
justifies relief.

a

Fed.

R.

60(b)

Civ.

"must

P.

60(b) .

clearly

satisfaction of

The

party

seeking

relief

the

grounds

therefore

establish

the district court

clearly

substantiated

F.2d 1,

3

(4th Cir.

under Rule 60(b)

by

Rule

to

the

... and such grounds must be

adequate

1992)

under

proof."

In

re

Burnley,

(internal citations omitted).

is an "extraordinary remedy"

only in "exceptional circumstances."

988

Relief

that is to be used

Compton,

608

F.2d at

102.

To determine whether such exceptional relief is appropriate,
court "must engage in the delicate balancing of

final judgments,

done in light of
Co.

v.

United

denied,

the court's conscience

[a]11 the facts."

States,

399 U.S.

927

A Rule 60(b)
not a

substitute

423

F.2d

Id.

73,

for a

a

post-judgment

motion

(quoting Bankers Mortg.

77

(5th

193,

198

s[eeks]

(1950).

to

court's

Donohoe
United

Const.
States

original

60(b)

reconsideration

of

Co.,
v.

Cir.

1970),

cert.

a

does

legal

57

not

395,

674

the

to

it

CNF

400

F.2d

is

clearly

court

a

improper,

motion

Constructors,

(4th

310,

district

issues addressed in

authorize

issue."

F.3d

Williams,

order,

See Ackermann

"To the extent that

have

reconsider its prior ruling with respect

Rule

that justice be

timely and proper appeal.

340 U.S.

because

and

motion seeking relief from a final judgment is

United States,

district

judicata,

(1970)).

v.

the

'the sanctity of

expressed in the doctrine of res

the incessant command of

the

Cir.

312

1995)

(4th

Cir.

Inc.

for

v.

(quoting
1982)).

Additionally,
that

the

"[w]here the motion is nothing more than a request

district

court

change

authorized by Rule 60(b)."
The

Fourth

Circuit

its

mind

Williams,

has

held

...

it

[also]

is

not

674 F.2d at 313.

that

a

motion under Rule

60(b)

is addressed to the sound discretion of the trial judge and will
not

be

disturbed

Aikens

v.

Werner,
more

on

Ingram,

731

appeal

652

F.2d at

deferential

save

206.

a

496,

F.3d

for
501

(4th

"The

where

the

level

showing
Cir.

of

the

concerns simply matters already addressed in
the district court."

CNF Constructors,
B. Rule

Federal
ability

Rule

to

15(a) (2)

of

amend

Civil

the

provides

"a

Rule

also

becomes

...

see

even

60(b)

motion

the final order of

57 F.3d at 401.

Procedure

party

See

15

Complaint.

that

abuse.

2011);

review

of

review

of

15

Fed.
may

governs

R.

Civ.

amend

its

Plaintiffs'

P.

15.

Rule

pleadings

only

with the opposing party's written consent or the court's leave.

The

court

Fed.

R.

federal

should

Civ.

P.

policy

freely

give

15(a)(2).
in

favor

leave

when

justice so

This directive
of

resolving

requires."

"gives effect

cases

on

their

to

the

merits

instead of disposing of them on technicalities."

Matrix Capital

Mgm't

Fund

LP

Cir.

2009)

Cir.

2006)).

v.

Bearing

(quoting

Laber

Accordingly,

Point,
v.

Inc.,

576

F.3d

172,

193

(4th

Harvery,

438

F.3d

404,

426

(4th

"leave

to

amend

[under

Rule

15(a)]

should be denied only when the amendment would be prejudicial to

10

the opposing party,
moving party,
The
amend

or the amendment would be futile."

Fourth

filed

cannot

be

considered
V.

"repeatedly

judgment
until

City of

see also Katyle v.

(4th Cir.

judgment
vacates

the

2012)

motion
its

60(b).").

on

a

has

of

the

held

that

dismissal

judgment

Fredericksburg,

Penn Nat.

amend

judgment

However,

obligations

entered

vacated."

Va. , No.

12-1119,

15, 2013)

(citing

637 F.3d 462,

grant a post-

the

Gaming,

Calvary

complaint
to

unless

Fed.

R.

standard appears

to have

or

little effect

"[t]o

determine

the

court

or

60(b)'s]

standards.

be

Put

warranted

either

[Rule

just

another

it

Fed.

to

as
R.

Civ.

way,

"a

would
P.

on

similar

prejudice,
F.3d

at

59(e)

motion
bad

427) .

prejudgment

court

should

Katyle,
evaluate

need

not

legal

judgment

or

futility.'"

Id.

may

637

to

amend

F.3d at 471.

post[-]judgment

'under the same legal standard as

before

court

motion

a

filed

faith,
The

a

15(a)."

motion to amend the complaint
a

...

analyzing

The court need only ask whether the amendment should

granted,

pursuant

with

is

when

59(e)

Specifically,

vacatur

court

P.

first

judgment motion to amend under Rule 15(a).

itself

district

Civ.

court

post-

concern

a

the

a

whether

of

been

to

Inc.,

pursuant

this

motion

district court may not

("[A]

to

a

has

is

the

Id.

, 2013 WL 1019388, at *2 (4th Cir. Mar.

cases);

470

Circuit

after

Christian Ctr.

F.3d

there has been bad faith on the part of

not

11

summarily

was

entered—for

(quoting
"deny

Laber,
a

motion

438
to

amend

simply

plaintiff,

because

it

has

entered

be it a judgment of dismissal,

a judgment after trial on the merits."
al. ,

Federal

2010)

Practice

(citing Laber,

court must vacate
60(b)

prior

to

' [a]

discretion

in

grounds

Rule 59(e)[,

438

Procedure

a

conclusion
denying

to

a

Thus,

the

motion

reverse

at

814

to Rule

59(e)

2012)

Bd.

amend

district

of Governors,

(unpublished)

(3d

...

ed.

[Rule]

amend

abused

is

court's

a
its

sufficient

denial

of

motion.'"

4 93 Fed.

(quoting Laber,

or

to

court

and presumably also a Rule 60(b),]

v. West Virginia Univ.

n.l

leave

district

to

the

or

although "a district

post-judgment

that

the

a summary judgment,

§ 1489

F.3d 404).

against

6 Charles Alan Wright et

its judgment pursuant

which

on

and

granting

complaint,

(4th Cir.

judgment

a

Logar

App'x 4 60, 4 63

438

F.3d at

427-

28)) .

IV.
Plaintiffs

move

first

Analysis

for

relief

December 18,

2012 Dismissal Order as

alternative,

for

allegations

under

addresses

leave

to amend

Rule

Plaintiffs'

Rule

I

and

the

Accordingly,

60(b)

60(b)

from

to Count I and then,

Count

15.

Rule

under

motion

the

in the

related factual

the

before

Court

first

considering

whether to grant Plaintiffs leave to amend under Rule 15(a)(2).
A. Motion for Reconsideration under Rule

To be eligible for Rule
establish

that

their

request

60(b)
for

12

relief,
such

60(b)

Plaintiffs must first

relief

was

timely

made,

based

on

"a

prejudice

meritorious

to

the

defense,"

opposing

"exceptional circumstances."

Auto.

to

result

and

Powell v.

is

State

(4th Cir.

1993)

that

they

Dismissal Order,

"unfair

Fire

&

by
Cas.

(quoting Werner,
the movant

"must

the six specific sections of Rule 60(b)."

Defendants unanimously contend that Plaintiffs
show

in

justified

Farm

Once such a showing is made,

[then] satisfy one of
Id.

not

party,"

Ins. Co. , 993 F.2d 46, 48

731 F.2d at 207).

will

have

a

meritorious

defense

to

have failed
the

Court's

that relief under Rule 60(b) would not unfairly

prejudice Defendants, and that exceptional circumstances justify
such relief in this case.6
1.

The
requires

first

threshold

the movant

defense.
ensure

Meritorious Claim or Defense

Powell,

to

condition

show that

[the]

do

not

contend

has

under

Rule

a meritorious

[sought]

Boyd v.

that

relief

60(b)

claim or

This condition is designed to

relief

have been a futile gesture."

Defendants

he

993 F.2d at 48.

"that granting

to

will not in the end

Bulala,

Plaintiffs

905 F.2d 764,

failed

to

timely

769

seek

relief under Rule 60(b).
Rule 60(c)(1) establishes the timing
requirements for motions filed pursuant to Rule 60(b) and requires
only

that

"[a]

motion

under

Rule

reasonable time-and for reasons (1),

60(b)

must

be

made

within

a

(2), and (3) no more than a year

after the entry of
the
judgment or order or
the date of the
proceeding."
Fed. R. Civ. P. 60(c)(1).
Plaintiffs filed the instant
motion twenty-nine (29) days after this Court's entry of the Dismissal
Order.
Because no party challenges the timeliness of Plaintiffs'
motion

and

because

Plaintiffs'

filed

less

than

one

month

after

the

entry of judgment, the Court finds Plaintiffs' motion to be timely.
This is especially true in light of the intervening court holidays
between the entry of judgment and Plaintiffs'

13

filing.

(4th Cir. 1990)

(citing 11 Wright & Miller,

Procedure: Civil § 2857 at 161 (1973)).

Federal Practice and

Accordingly,

the Fourth

Circuit has held that a "meritorious defense requires a proffer
of

evidence

which

party...."

Augusta

Contracting
Cent.
n.8

would

Corp.,

Cir.

v.

Util.

1974))
Rule

from

a

evidence!,]

60 (b)

...

the

812

Workers

of

Am.,

the

Inc.

[moving]
v.

1988)

491

Fodor

(citing

F.2d 245,

meritorious

252

defense

in the context of a motion for relief

movant

defense

mere

the

(4th Cir.

The

meritorious

for

Coatings,

(considering

judgment).

establish

finding

Fiberglass

requirement of

default

a

843 F.2d 808,

Operating Co.
(4th

permit

by

a

assertion

of

"is

not

required

preponderance

facts

to

of

the

constituting

a

meritorious defense in an original complaint" may be sufficient.
Cent.

Operating,

411 F.2d 123,

Here,

130

491

F.2d

(4th Cir.

at 252 n.8
1969))

(same).

of

the

URA's

various

provisions

misunderstanding of such provisions,
allegations in the Complaint.

its

primarily,

reading

concerning

of

survive

the

minimal

non-monetary

a

and,

based

on

a

misread the related factual

Thus,

Plaintiffs'

argument

takes

with the Court's legal analysis and then with

motion

to

facts

relocation

already considered whether
to

Hodge,

Plaintiffs contend only that this Court conflated the

requirements

issue,

(citing Tolson v.

the

included
assistance.

Complaint

dismiss

14

and

has

was

in

the
The

Complaint
Court

has

sufficiently pled

concluded

that

it

was

not.'

Reviewing

Rule

60(b),

nothing

Plaintiffs'

the

more

Court

than

Motion

finds

rehash

for

that

issues

Reconsideration

Plaintiffs'

have

no more

merit

60(b)

does

prior

ruling with

not

now

than

authorize

a

respect

to

arguments

specifically

resolved in this Court's Dismissal Order.

then.

district

court

issues

addressed

Plaintiffs'

they did

under

addressed

reconsider

in

and

arguments

Furthermore,
to

do

that

Rule
its

court's

Federal Rule of Civil Procedure 8(a)(2) required Plaintiffs to set
forth "a short and plain statement of the[ir] claim showing that
the [y]

...

[were]

entitled

to

relief."

Fed.

R.

Civ.

P.

8(a) (2) .

To

satisfy their obligation under Rule 8(a)(2), Plaintiffs were required
to allege "enough facts to state a claim to relief that is plausible
on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (emphasis added).
A claim is plausible "when the plaintiff
pleads

factual

inference that
Ashcroft v.

entirety of
paragraphs

content

that

allows

the defendant

Iqbal,

556 U.S.

Plaintiffs'
containing

the

is liable

662,

678

court

to

(2009).

the

reasonable

alleged."

The Court considered the

229-paragraph Complaint
factual

draw

for the misconduct

allegations

and found only

related

to

four

relocation

assistance.
Dismissal Order at 37 n.16, ECF no. 47 (citing Compl.
UH 128, 144-46).
Plaintiffs cite one additional paragraph in support
of their contention that they
monetary relocation assistance.

alleged a claim for denial of non
ECF No. 50 (citing Compl. H 109). To
the extent the Court's prior holding was unclear, the Court reiterates
that the thrust of Plaintiffs' Complaint, as well as all of the
briefings concerning the motions to dismiss, concerned the propriety
of Defendant City's appraisal of Clear Sky's Land.
The Complaint
clearly alleged several purported violations of the URA based on the

appraisal and the valuation of the Land.
See Compl. % 190.
The
Complaint then requested (in the Prayer for Relief) specific findings
concerning the appraisal and the Plaintiffs' related rights under the
None of these claims or requests for relief stated, or even
URA.
suggested,
that
Defendants
had
failed
to
provide
non-monetary
relocation assistance.
In viewing the Complaint as a whole, the Court
found that
"none of the pleaded facts address[ed]
non-monetary
assistance under § 4625."

Dismissal Order at

38 n.16,

ECF No.

47.

In

so holding,
the
Court
specifically rejected
the
summarily cited
provisions of
§ 4625's corresponding regulations as
sufficient to
provide the factual basis for a plausible claim to relief under

§ 4625,

stating that "the Court is not bound by legal conclusions set
Id. at 38 n.17 (citing Eastern Shore Mkts.,

forth in the Complaint."
Inc.

v. J.D.

Assocs.

Ltd.

P'ship,

213 F.3d 175,

15

180

(4th Cir.

2000)).

original

order.

CNF

Williams,

674

at

F.2d

Constructors,
312)

F.3d

at

60(b)

("Rule

57

400

does

not

motion for reconsideration of a legal issue.").
the

district

meritorious

court

claim

F.2d at 313.

60(b)

to

or

"change

defense

its

under

mind"

Rule

(quoting

authorize

a

A request for
is

also

60(b).

not

a

Williams,

674

"It is a well settled principle of law that a Rule

motion

seeking

relief

from

a

final

judgment

substitute for a timely and proper appeal."

Powell,

is

not

a

993 F.2d at

48.

Plaintiffs'

grounds

for

seeking

post-judgment

relief

not

only constitute improper requests for the Court to change its
mind,

but,

even if

the Court were authorized

to reconsider its prior analysis,

relief

ultimately be "a futile gesture."

Boyd,

Pismissal

Order,

this

Court

(or even inclined)

under Rule

Order

at

30,

ECF

specifically

No.

leave to pursue a cause of

related regulations)

not

exist.

held

would be

not

"permit

Fiberglass
such

a

nothing

relief,

843

therefore,

for

than

the

F.2d at
does

a

Subchapter

right

of action.

Plaintiffs

Plaintiffs
futile

812.

now

seek

§ 4625 and its

already determined does

the

gesture,

[moving]

not

16

that

(violation of

awarding

more

finding

Coatings,

action

Thus,

that the Court has

Accordingly,

seek

47.

would

905 F.2d at 769. In its

II—including § 4625—does not create a federal
Pismissal

60(b)

as

party...."

Plaintiffs'

present

relief

the

it

they
would

Augusta

request

Court

for

with

a

meritorious claim or defense against

Accordingly,

Plaintiffs

have

its prior Pismissal Order.

failed

to

satisfy

the

first

threshold requirement for relief under Rule 60(b).8
2.

Grounds for Relief under Rule 60(b)

Even if the Plaintiffs'

allegations were sufficient to meet

the threshold requirement of establishing a meritorious claim or
defense,

such

entitled

to

allegations

relief

fail

under

to

Rule

show

60(b).

that

Plaintiffs

Plaintiffs'

Motion

Reconsideration does not specify which subsection of

they are invoking.
in

Plaintiffs'

ECF No.

51.

Memorandum

Reconsideration,

it

is

clear

in
that

Support
Rules

above,

Rule

"the judgment

60(b)(4),

Fed.

the

for

(3),

(5)

and

as reviewed

allows

relief

R.

P.

Civ.

A judgment is "void" for purposes of Rule 60(b) (4)
court rendering

60(b)

Motion

arguments,

which

is void."

of

60(b) (2),

Neither do Plaintiffs'

judgment if

Rule

for

Based on the grounds set forth

are not at issue.
implicate

are

decision lacked personal

or

from

60(b)(4).

"only if the

subject matter

jurisdiction or acted in a manner inconsistent with due process
of

law."

However,
an
9

Wendt v.

Leonard,

431

F.3d 410,

412

(4th Cir.

2005).

"voidness" is narrowly construed and generally requires

egregious
Because

requirement

error

Plaintiffs
under Rule

before
have

relief

failed

to

60(b)—a meritorious

under
meet

Rule
the

60(b)(4)

first

is

threshold

claim or defense—the

Court

does not address whether Plaintiffs established a lack of prejudice to
defendants (a point the parties apparently dispute).
For ease of
reference,
the
Court
will
discuss
the
exceptional
circumstances
requirement below,

in its discussion of Rule 60(b) (6) .

17

appropriate.

Id. at 413

F.3d 330,

335

any

error

such

mistakenly

(7th Cir.

(citing United States v. Tittjung,
2000)).

occurred,

arrived at

allege

a

claim

§ 4625

of

for

the

but

the

Plaintiffs do not allege that

instead

conclusion

non-monetary

URA.

Thus,

235

suggest
that

that

Plaintiffs

relocation

the

only

this

Court

failed

assistance

potentially

to

under

applicable

grounds for relief in this case are Rules 60(b) (1) and (6) .

Rule
on

60(b)(1)

"mistake,

Rule

provides relief

inadvertence,

60(b)(1).

The

surprise,

Fourth Circuit

certain limited circumstances,

has

indeed

Williams,
Lines

this

674

Co.,

222

a

at

F.2d

to
313

358

is

unhappy
at

346-47.

Court

designed

to

mind"

are

cognizable

Plaintiffs'

not

convince

excusable

"[i]n

'mistake'

Rule

60(b)

1995)).

not

Court."

United

v.

States

relief

appropriate

judgment."

"the district

the

However,

Allegations

under Rule

in

by

Tarkington

the

neglect."
that

mistakes

is

judgment based

acknowledged

word

60(b)(1)
with

or

has

include

(2d Cir.

Rule

§ 2858

the

(citing

of

party

supra,

read

F.2d

subsection

because
al.,

been

from a final

of

court

60(b).

11

Id.

"merely

Wright

mistakes
[to]

under

et

by

the

change

its

Accordingly,

arguments that the Court mistakenly read the URA and

misunderstood

their

allegations

in

the

Complaint

are

insufficient to support relief under Rule 60(b)(1).

Likewise,
relief

under

Plaintiffs fail to show that they are entitled to
Rule

60(b)(6),

which

18

authorizes

the

Court

to

relieve

reason

Plaintiffs

that

from

justifies

its

Pismissal

relief."

Order

Fed.

R.

for

Civ.

"any

P.

60(b)(6).

Subsection 6 is the "catchall" provision of Rule 60(b).

652

F.3d

textual

at

500.

While

limitations,"

provision's

the

the

"context

provision

Fourth

requires

'extraordinary circumstances'

itself

Circuit

that
when

the

"includes
held

be

invoked

reason

for

not fall within the listed reasons given in Rule

Id.

The

Fourth Circuit,

sitting en

Aikens,

has

it may

banc,

has

other

few

that

the

in only

relief

does

60(b) (1)- (5) ."

emphasized that

"[t]his very strict interpretation of Rule 60(b) is essential if
the

finality

of

judgments

(quoting Liljeberg v.
847,

873

reason

(1988)

asserted

addressed

on

is

be

preserved."

Id.

Health Servs. Acquisition Corp.,

(Rehnquist,
for

to

the

appeal

C.J.,

Rule

from

the

dissenting)).

60(b)(6)

motion

judgment,

...

993

F.2d

at

48).

The

could

required to justify relief under Rule 60(b)(6)
when

the movant

district
502.

"It

court
is

seeks
erred

the

Rule

60(b) (6).

the

have

been

[i]s

Id.

(citing

circumstances

are thus lacking

relief based only on the claim that
in

office

perceived errors,"

486 U.S.

motion

the

extraordinary

501

" [I]f

merely an inappropriate substitute for an appeal."
Powell,

at

dismissing
of

appeal

[the]
that

is

action...."
designed

to

"the

Id.

at

correct

not the province of the district court under

Thus,

Plaintiffs'

contentions

that

this

Court

erred in interpreting the URA and further erred in applying the

19

URA

to

those

factual

insufficient

to

provision.

They

allegations

support

are

relief

more

made

in

under

the

Rule

appropriately

Complaint

60(b)'s

the

are

catchall

subject

of

an

appeal.
In

sum,

for relief

the

Court

under Rule

finds

60(b),

that

have

Plaintiffs,

failed

to

the grounds" entitling them to such relief.
F.2d

at

3.

The

only

grounds

as

the

movants

"clearly establish

In re Burnley,

alleged—the

perceived

988

errors

of

this Court-do not present a meritorious claim or defense to the
Dismissal

60(b) (1)
more

Order,

nor

or 60(b) (6) .

do

they

Instead,

relief

under

such grounds amount

than an improper request that this Court

See Williams, 674 F.2d at 313.
more

support

appropriately

Plaintiffs'

the subject of

Court

will

deny

Plaintiffs'

Motion

to nothing

perceived errors are

an appeal,

For these reasons,

Rule

change its mind.

and Rule

not a substitute for a timely and proper appeal.
340 U.S. at 198.

either

60(b)

See Ackermann,

as fully stated above,
for

is

Reconsideration

the

under

Rule 60(b).
B.

Alternative Motion to Amend under Rule

In addition

60(b),

to

their Motion

15

for Reconsideration under Rule

Plaintiffs have alternatively sought leave to amend their

Complaint under Rule 15 "to add a few clarifying words"
purposes

of

"dispel[ing]

any

possible

confusion

for the

regarding

the

allegation (and actual fact) that Defendants declined to provide

20

the

required relocation assistance."

noted above,

this

Court

cannot

ECF No.

grant

a

50

at

2,

post-judgment

5.

As

motion

to

amend the Complaint unless the Court first vacates its judgment
pursuant

to

either

Federal

60(b).

See

Calvary

Katyle,

63 7

F.3d

Rule

at

470.

Civil

Ctr.,

Christian

of

2013

Although

Procedure

WL

the

59(e)

or

at

*2;

1019388,

Court

has

already

determined that vacatur under Rule 60(b)—the only ground sought
in

this

case—is

summary

denial

Instead,

not
of

despite

warranted,
Plaintiffs'

fact

motion

to

does

alternative

its holding with respect

for Reconsideration,
judgment

this

not

support

motion

a

amend.

Plaintiffs'

to

to

Motion

the Court is required to evaluate the postamend

"under

the

same

legal

standard

as

a

similar motion filed before judgment was

entered—for prejudice,

bad

F.3d

faith,

Laber,

or

futility."

Katyle,

637

(quoting

permits a party to "amend its pleadings only

with the opposing party's written consent or
requires

justice so

the

court

requires."

directive's

clear

should be denied

moving party,
Fund,

to

"freely

Fed.

policy

R.

give

Civ.

favoring

P.

the court's leave"

leave

15(a) (2) .

amendment,

amend]

when

Despite

"leave

to

the

amend

there has been bad faith on the part of the

or the amendment would be futile."
576

[to

... when the amendment would be prejudicial to

the opposing party,

Mgm't

471

438 F.3d at 427).

Rule 15(a)(2)

and

at

F.3d

at

193.

An

21

amendment

is

Matrix Capital
futile

"if

the

proposed

amended

complaint

fails

to

state

a

applicable rules and accompanying standards,"
proposed amended complaint
the

federal

States
370,

ex

376

rules.'"

re.

has

60(b)

v.

to

637

Kellogg

that

and

Rule

F.3d

at

Brown

&

15—to pursue

not

the Court to find that

471

exist.

a

claim

this

F.3d

II"

the

finds

these

allegations

were

that

Court

Plaintiffs

they "did allege violation of
URA Section

and,

relocation

to

not

ask

the

extent

"sufficiently

that it further grant Plaintiffs leave to amend Count I.

Count I purports to allege a cause of
violating

considered,
private

the

at

right

URA.

length,
of

In

action.

findings

land

acquisition

URA,

and

federal

right

§ 4651,

either

states

via

found

Dismissal

URA

No.

47

from its

that

set

forth

"the

federal

§ 4655."

whether

Subchapter

II

47

of

22

this

provides
at

in

URA

agencies

ECF No.

Order,

for

20-33.

Remand Order

of action under the
by

action against Defendants

the

ECF

policies,

again

its

whether

incorporated the

consider

525

Court—under

that

Specifically,

under

the

Inc.,

from this

provisions

for

"'if the

(quoting United

Root,

assistance

clear,"

is,

the

satisfy the requirements of

Plaintiffs seek leave

already held does

Court

under

2008)).

As noted above,

both Rule

Katyle,

Wilson

(4th Cir.

fails

claim

Court

concerning
III

a

the

of

a

land acquisition policies

of

at

the

as
23.

URA,

provide

the

for

or

not

such

The

Subchapter

does

Court

incorporated
The

Court

which

against

went

on to

provides

for

certain
such

Id.

a

monetary

and

private

cause

24-33.

at

The

advisory

not provide
assistance

for a

benefits,

II

it

of

Alexander v.

Sandoval,

the

holding

Court's

create

a private

532

right

action under
II."

the

not.

URA does

the relocation
"Although

relocation

assistance

remedy."

275,

action,

Id.

did

31.

286

Subchapter

of

"that

it

private

a

U.S.

that

held

that

created

certain

forth

create

assistance,

concluded

right of

Subchapter

set

not

and

specifically

federal

does

does

action

Court

policies

Subchapter

of

relocation

II

at

Id.

(2001)).
of

In light of

the

Plaintiffs'

(citing

URA

does

request

not

to amend

their Complaint to pursue a cause of action under Subchapter II

is

futile.

Accordingly,

alternative Motion

the

to Amend under Rule
V.

For

the

reasons

Rule

copy of

15

are

DENIED.

this Order to all

will

deny

Plaintiffs'

15.

Conclusion

stated

Reconsideration under Rule
under

Court

above,

60(b)
The

Plaintiffs'

and alternative
Clerk

is

Motion

Motion

DIRECTED

to

for

to Amend
forward

counsel of record and to the Clerk of

the Court of Appeals for the Fourth Circuit.
IT IS

SO

ORDERED.

/s/
Mark
UNITED

Norfolk, Virginia

April

1\

a

2013

23

STATES

S.

Davis

DISTRICT

JUDGE