Gayle v. Dwoskin
Filing
15
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 10/14/11. (kld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
RUBY GAYLE,
Plaintiff,
v.
ROBERT DWOSKIN,
Defendant.
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Civil Action No. 5:11cv00078
By: Michael F. Urbanski
United States District Judge
MEMORANDUM OPINION
This matter is before the court on Plaintiff’s Motion for Reconsideration of Memorandum
to Dismiss (Dkt. #13), which the court construes as a Rule 60(b) motion for relief from
judgment. For the reasons set forth below, the motion is DENIED.
I.
Plaintiff Ruby Gayle, proceeding pro se, originally filed this action in the United States
District Court for the Eastern District of Virginia, Richmond Division, on June 21, 2011.
Because venue was not proper, the case was transferred to the United States District Court for
the Western District of Virginia, Harrisonburg Division, by Order dated August 8, 2011. The
court granted plaintiff’s Application to Proceed in Forma Pauperis on August 9, 2011.
Plaintiff alleges in this case that her attorney, Robert Dwoskin, committed malpractice by
failing to sue successfully on her behalf in a previous § 1983 action filed in this court.
Specifically, plaintiff claims Dwoskin failed to comply with a scheduling order and to
communicate with her about her case, resulting in the dismissal without prejudice of the § 1983
action.1 See Gayle v. City of Waynesboro, No. 5:08cv00091, 2009 WL 2488963, at *1 (W.D.
Va. Aug. 13, 2009).
After reviewing plaintiff’s complaint, the court determined sua sponte that it lacked
subject matter jurisdiction to hear this claim and dismissed the case without prejudice by
Memorandum Opinion and Order entered August 15, 2011. Plaintiff has sent several letters to
the court following the dismissal of her case, and she now moves for reconsideration.
II.
Motions for reconsideration, while not uncommon in federal practice, are not recognized
under the Federal Rules of Civil Procedure. See Ambling Mgmt. Co. v. Univ. View Partners,
LLC, No. WDQ-07-2071, 2010 WL 457508, at *1 n.3 (D. Md. Feb. 3, 2010); Above the Belt,
Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 100 (E.D. Va. 1983). Pursuant to the Federal
Rules, a party can move for a new trial or to alter or amend a judgment pursuant to Rule 59, or
move for relief from a judgment or order pursuant to Rule 60. The Fourth Circuit has held that
courts should construe a post-judgment motion for reconsideration filed within 28 days of the
entry of judgment as a motion to alter or amend a judgment pursuant to Rule 59(e). Dove v.
CODESCO, 569 F.2d 807, 809 (4th Cir. 1978) (“[I]f a post-judgment motion is filed within ten
days of the entry of judgment and calls into question the correctness of that judgment it should
be treated as a motion under Rule 59(e), however it may be formally styled.” 2); see also MLC
Automotive, LLC v. Town of Southern Pines, 532 F.3d 269, 277-78 (4th Cir. 2008) (noting
CODESCO continues to apply notwithstanding the amendment to Federal Rule of Appellate
1
While the case was dismissed without prejudice, the court’s dismissal order requires certain conditions be met
before Gayle will be permitted to refile her § 1983 action. Specifically, she is required: (1) to refile only in this
district, and (2) to pay the reasonable costs, expenses and attorney’s fees incurred by defendant Officer Eric A.
Fernandez due to Gayle’s failure to comply with the discovery requirements of the court’s scheduling order.
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Post-CODESCO, Rule 59(e) was amended to allow 28 days to file such a motion.
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Procedure 4). A motion that is filed later is construed as a Rule 60(b) motion for relief from
judgment or order. In re Burnley, 988 F.2d 1, 2-3 (4th Cir. 1992); Ambling Mmgt. Co., 2010
WL 457508, at *1 n.3.
The court entered its dismissal order in this case on August 15, 2011 (Dkt. #10.) Gayle
filed her motion for reconsideration on September 13, 2011 (Dkt. #13), 29 days after the entry of
judgment. Thus, Rule 59(e) is inapplicable and Gayle’s motion is construed as a motion for
relief from a final judgment or order pursuant to Rule 60(b).3
The remedy provided by Rule 60(b) is “extraordinary and is only to be invoked upon a
showing of exceptional circumstances.” Compton v. Alton S.S. Co., Inc. , 608 F.2d 96, 102 (4th
Cir. 1979). In addition to showing exceptional circumstances, a party moving for relief under
Rule 60(b) must show timeliness, a meritorious defense, and a lack of unfair prejudice to the
opposing party. Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984). Once the moving party
has made such a showing, she must satisfy one of the six grounds for relief from judgment
outlined in Rule 60(b).4 Id. “When making a motion under Rule 60(b), the party moving for
relief ‘must clearly establish the grounds therefor to the satisfaction of the district court,’ and
such grounds ‘must be clearly substantiated by adequate proof.’” In re Burnley, 988 F.2d at 3
(internal citations omitted). Rule 60(b) does not authorize reconsideration of legal issues already
addressed in an earlier ruling. United States v. Williams, 674 F.2d 310, 312 (4th Cir. 1982);
3
The August 15, 2011 dismissal order is considered a final judgment pursuant to 28 U.S.C. § 1291 and Rule 54(a),
even though it dismisses plaintiff’s case without prejudice. Because no amendment to the complaint could cure the
defects in plaintiff’s case caused by the lack of subject matter jurisdiction, it is an appealable order. See Domino
Sugar Corporation v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993) (holding a plaintiff can
appeal the dismissal of his complaint without prejudice if the grounds for dismissal clearly indicate that no
amendment to the complaint could cure the defects in plaintiff’s case).
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These grounds include: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence;
(3) fraud, 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. Fed. R. Civ. P. 60(b).
3
Barnett v. United States, No. 7:06cv00051, 2007 WL 712288, at *1 (W.D. Va. Mar. 6, 2007)
(“[T]he purpose of Rule 60(b) is not to rehash those issues which have already been addressed in
an earlier ruling.” (citing CNF Constructors, Inc. v. Dohohoe Construction Co., 57 F.3d 395, 401
(4th Cir. 1995))). The rule was not intended as a substitute for a direct appeal. Dowell v. State
Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993).
III.
In her motion, plaintiff asks the court to reconsider its ruling on subject matter
jurisdiction. Specifically, plaintiff argues that “[t]he jurisdiction of this case derived from the
original jurisdiction [of] an action that is pursuant to 42 U.S.C. 1983, 5 and the Fourteenth
Amendment of the Constitution of the United States and raises issues of original Federal
Jurisdiction but ancillary State claims are also raised.” (Dkt. #13, at 1.) Plaintiff asserts the
court’s jurisdiction over this malpractice action stems from the prior § 1983 case that gave rise to
her claim of malpractice. She argues that because her prior § 1983 suit and the instant
malpractice action arise out of “a common nucleus of operative facts,” this court has “the power
to hear the nonfederal claims along with the federal ones,” and should exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(a). (Dkt. #13, at 2.)
Plaintiff fails to make the required showing for relief pursuant to Rule 60(b). She merely
rehashes arguments concerning subject matter jurisdiction that were addressed in the court’s
prior ruling. This is not an appropriate basis for relief. Barnett v. United States, 2007 WL
712288, at *1.
As explained in the August 15, 2011 Memorandum Opinion, plaintiff has not met her
burden of establishing federal subject matter jurisdiction exists in this case. Plaintiff’s claim is
one of professional malpractice, which is governed by Virginia law. She does not allege a §
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1983 civil rights claim against Dworskin or otherwise raise a question of federal law such that
this court has jurisdiction under 28 U.S.C. § 1331. Despite her assertions to the contrary, the fact
that her malpractice claim stems from an allegedly botched prosecution of a § 1983 case does not
give rise to federal question jurisdiction. Nor is there diversity jurisdiction pursuant to 28 U.S.C.
§ 1332, as plaintiff’s complaint makes clear that both she and defendant are citizens of Virginia.
Because the court does not have original jurisdiction over plaintiff’s claim, the issue of
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 is inapposite.5
Gayle has failed to make the threshold showing under Rule 60(b), let alone satisfy one of
the six specific grounds for relief. Plaintiff’s case presents no exceptional circumstances. There
are simply no grounds on which the court may grant relief from its order dismissing Gayle’s
claim for lack of subject matter jurisdiction.
Federal courts are courts of limited jurisdiction, and the court has an independent
obligation to evaluate, sua sponte, its subject matter jurisdiction if it is in doubt. Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977). “[W]hen a federal court
concludes that it lack subject-matter jurisdiction, the court must dismiss the complaint in its
entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Federal court is not the proper
place for plaintiff to pursue her malpractice claim against her former attorney. As noted in the
court’s letter response to plaintiff dated September 12, 2011, plaintiff can find her nearest state
court, the Circuit Court for the City of Waynesboro, at 250 South Wayne Street, Suite 202, P.O.
Box 910, Waynesboro, VA 22980-0910, or by calling (540) 942-6616.
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To the extent plaintiff argues that the court has supplemental jurisdiction over this state law malpractice claim by
virtue of its original jurisdiction over the § 1983 claim she brought against the City of Waynesboro and others, her
argument fails. Plaintiff’s § 1983 claim against the City of Waynesboro has been dismissed, and plaintiff has not
reinstituted that action, choosing instead to file this malpractice action against her former attorney.
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For the reasons set forth herein, the plaintiff’s Motion for Reconsideration (Dkt. #13),
which has been construed as a motion for relief pursuant to Rule 60(b), is hereby DENIED.
The Clerk is directed to send a copy of this Memorandum Opinion and accompanying
Order to the plaintiff.
Entered: October 14, 2011
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
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