Echols v. CSX Transportation, Incorporated

Filing 57

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/24/2024. (adun, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ROY

FRANKLIN ECHOLS,

Plaintiff,
Civil

V.

Action

3:19CV947

No.

CSX TRANSPORTATION,
Defendant.

MEMORANDUM OPINION

Roy Franklin Echols,
filed
>\

this

Petition

REHEARING,

The matter

action.

For
n

a Virginia inmate proceeding pro

Rehearing

And

is

before

Rehearing

the

Enbanc

Court

on Echols's

{"PETITION

//

se.

ECF No 55), which was filed on February 26,

FOR
For

2024.

the reasons that follow, the PETITION FOR REHEARING will be denied.

I.

PROCEDURAL

HISTORY

By Memorandum Opinion and Order

entered on

2021

July 27,

("July 27 ORDER"), the Court dismissed the action without prejudice
because Echols
("CSX").

failed to timely

(ECF Nos.

23, 24.)

serve CSX Transportation,

Echols appealed.

Inc.,

On January 5, 2022,

the United States Court of Appeals for the Fourth Circuit dismissed
Echols's appeal.

Thereafter,
and Supplemental

(ECF No.

36.)

on June 14, 2023, Echols filed a
Pleading

the MOTION TO LEAVE,

n

("MOTION TO LEAVE,"

\\

Motion

ECF No.

to

Leave

40.)

In

Echols asserted that his failure to serve CSX

in a timely manner was attributable to the fact that CSX listed "a
fraudulent church address on
No.

40,

at 2

[Google World Wide Website].

(ECF

n

(capitalization corrected)

(alteration in original)

(underline omitted).)

Because the MOTION TO LEAVE was filed more than twenty-eight

days after the entry of the July 27 ORDER, the MOTION TO LEAVE was
governed by Fed.
2-3

(4th Cir.

60(b)

that,

Civ.

in his

P.

See In re Burnley,

60(b) .

988 F.2d 1,

Echols failed to identify the part of Rule

1992).

MOTION TO LEAVE,
o

R.

view,

entitled him to

Further,

relief.

the

which was filed almost two years after the entry

f the challenged judgment and without any explanation for that
See

delay, was not filed in a reasonable time.
W.

Daniel & Co.,

held on

Inc.,

924 F.2d 535,

several occasions

that

a

538

Rule

McLawhorn

(4th Cir.

60(b)

1991)
is

motion

v.

John

("We have
not timely

brought when it is made three to four months after the original
judgment and no valid reason is given for the delay.
Operating

Co.

Utility Workers of TVn. ,

v.

1974);

Consol.

Corp.,

383 F.2d 249

Opinion

Masonry

and Order

Echols's

MOTION

FOR

On August 31,
Judgment

n

("MOTION

&

Inc.

entered on August

11,

2023,

(ECF Nos.

41,

42.)

LEAVE.

2023,

Echols filed a

TO ALTER,

It

ECF No.

2

V.

(4th Cir.

Wagman

Accordingly,

1967)).

(citing Cent.

491 F.2d 245

Fireproofing,

(4th Cir.

//

the

Constr.

by Memorandum
Court

denied

Motion To Alter or Amend

43).

By Memorandum Opinion

and Order entered on November 1,
TO

2023,

the Court denied the MOTION

In denying the MOTION TO ALTER,

ALTER.

the Court noted:

Echols contends, in a cursory manner, that relief
pursuant to his MOTION FOR LEAVE was appropriate under
Rule 60(b), subsections (1), (3), and (6).
In support
of those arguments, Echols simply notes the lack of
timely service may be attributable to the Marshal's

attempt to serve process at
[an]
incorrect address.
Echols makes no effort to explain why his MOTION FOR
LEAVE

was

failed

filed

to

within

demonstrate

a

reasonable

that

the

time.

Court

Echols

committed

a

has

clear

error
of
law
in
denying
his
MOTION
FOR
LEAVE.
Furthermore,
Echols
fails
to
explain
how
it
was
manifestly unjust to deny the MOTION FOR LEAVE.
(ECF No.

15,

51,

at

4.)

{ECF No.

Echols appealed.

45.)

On February

2024, the United States Court of Appeals for the Fourth Circuit
On February 26,

dismissed Echols's appeal.

2024,

Echols filed his

PETITION FOR REHEARING wherein he once again seeks

to debate

the

dismissal of the action for failure to timely serve CSX.

II.

Echols's
time.

(4th Cir.

of

Am.,

1967)) .

appeal

F.2d
Inc, v.

Further,
.

.

(4th Cir.
(4th Cir.

u

Dec.

REHEARING

John W.

was

Daniel

not

filed

in

& Co.,

Inc.,

924

reasonable

F.2d 535,

(citing Cent. Operating Co. v. Utility Workers

1991)

491

Fireproofing,

496

FOR

See McLawhorn v.

538

*1

PETITION

ANALYSIS

245

(4th

Wagman Constr.

Rule

Bowling v.

5,

1966)).

Cir.

1995)
To

60(b)
Monk,

1974);

No.

not

the

extent

3

do

95-1202,

(citing Hall v.
that

Masonry

383 F.2d 249

Corp.,

may

Consol.

(4th Cir.

service

for

1995 WL 711960,

Warden,
Echols

364

&

an
at

F.2d 495,

believed

that

a

prior decision of this Court was in error, his remedy was to pursue
an

appeal.

Echols's

PETITION

FOR REHEARING

(ECF No.

55)

will

be

denied.

The Clerk is directed to send a copy of the Memorandum Opinion
to

Echols.

It

is

so

ORDERED.

/s/
Robert

E.

Payne

Senior United States

Richmond,
Date:

Virginia

September

.

2024

4

District Judge