Dixon v. Ballard

Filing 29

MEMORANDUM OPINION AND ORDER denying Plaintiff's 24 MOTION for Reconsideration. Signed by Senior Judge David A. Faber on 4/20/2015. (cc: counsel of record and unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
DAVID LAWRENCE DIXON,
Plaintiff,
v.

CIVIL ACTION NO. 1:13-07498

DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is Dixon’s Motion for
Reconsideration under Fed. R. Civ. P. 60(b).

(Doc. No. 24).

For

the reasons that follow, the motion is denied.
By Judgment Order entered by this court on September 11,
2014, the court adopted Magistrate Judge VanDervort’s proposed
findings and recommendation (PF&R) in which he recommended that
the district court grant defendant’s motion to dismiss, deny
plaintiff’s petition under 28 U.S.C. § 2254, and direct the Clerk
to remove this case from the court’s active docket.
Rule 60(b) of the Federal Rules of Civil Procedure provides
that
On motion and upon such terms as are just, the court
may relieve a party or a party’s legal representative
from a final judgment, order, or proceeding for the
following reasons: (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
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or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies
relief.
Fed. R. Civ. P. 60(b).

As a preliminary matter, a party must

also show “that his motion is timely, that he has a meritorious
defense to the action, and that the opposing party would not be
unfairly prejudiced by having the judgment set aside.”1

Park

Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1987).
Courts generally address these latter three considerations before
proceeding to consider the moving party’s stated reason for
opening the default judgment.

Nat’l Credit Union Admin. Bd. v.

Gray, 1 F.3d 262, 266 (4th Cir. 1993)(“Once the movant has met
the threshold showings, he must satisfy one of the six enumerated
grounds for relief under Rule 60(b).”).

Where a party is unable

to establish justification, however, the court may bypass the
threshold analysis.

Robinson v. Wix Filtration Corp., LLC, 599

F.3d 403, 411 n.9 (4th Cir. 2010).
Here, Dixon is not entitled to relief from judgment because
he cannot satisfy the initial threshold requirements.

Nor has he

shown grounds for relief from judgment under any of the
subsections of Rule 60(b).

1

As the court noted in
F.3d 262, 264 (4th Cir.
occasionally noted as a
v. Carbo, 731 F.2d 204,
at 264); and Compton v.
Cir. 1979).  

Because he cannot make the requisite

Nat’l Credit Union Admin. Bd. v. Gray, 1
1993), “exceptional circumstances” is
fourth threshold requirement. See Werner
207 (4th Cir. 1984)(cited in Gray, 1 F.3d
Alton S.S. Co., 608 F.2d 96, 102 (4th

2

showing under Rule 60(b), he is not entitled to relief from
judgment.

Accordingly, his motion is DENIED.

The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and
unrepresented parties.
It is SO ORDERED this 20th day of April, 2015.
ENTER:
David A. Faber
Senior United States District Judge

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