Perry et al v. The United States of America et al
Filing
17
ORDER denying 15 MOTION by Rosetta Perry, Kenneth J. Price to Reconsider 14 Judgment Order, as set forth herein. Signed by Judge Joseph R. Goodwin on 1/6/2021. (cc: counsel of record; any unrepresented party) (kew)
Case 2:20-cv-00317 Document 17 Filed 01/06/21 Page 1 of 4 PageID #: 94
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ROSETTA PERRY, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:20-cv-00317
THE UNITED STATES OF AMERICA, et al.,
Defendants.
ORDER
Pending before the court is Plaintiffs’ Motion for Reconsideration [ECF No. 15]
of my earlier Order dismissing this case [ECF No. 13]. Though Plaintiffs’ Motion for
Reconsideration does not specify the applicable Federal Rule of Civil Procedure, the
Court presumes the motion is brought pursuant to Rule 59(e), the usual vehicle for
such motions. The United States responded to the motion [ECF No. 16] and Plaintiffs
failed to reply. The motion is now ripe for consideration. For the reasons stated below,
the motion [ECF No. 15] is DENIED.
I.
Background
Plaintiffs filed their Complaint [ECF No. 1] on May 5, 2020, initiating this civil
action. The next day, the Clerk issued electronic summonses for Defendants New
River Health Association, Inc. (“New River”) [ECF No. 2] and the United States of
America [ECF No. 3]. Plaintiffs were then required to serve Defendants in accordance
with Federal Rule of Civil Procedure 4. On August 12, 2020, I entered an Order [ECF
Case 2:20-cv-00317 Document 17 Filed 01/06/21 Page 2 of 4 PageID #: 95
No. 8] directing Plaintiffs to demonstrate good cause for failing to serve Defendants
within 90 days of filing the complaint, as required by Federal Rule of Civil Procedure
4(m). Plaintiffs responded on August 21, 2020, arguing that the United States was
properly served because Plaintiff had directed the West Virginia Secretary of State
to serve the United States Attorney for the Southern District of West Virginia via
certified mail. [ECF No. 9]. Plaintiffs’ Response did not discuss at all whether they
had good cause for failing to properly serve New River and the Attorney General of
the United States. [ECF No. 9]. Therefore, I held that Plaintiffs failed to demonstrate
good cause and dismissed this case without prejudice on September 8, 2020. [ECF No.
13].
Plaintiffs now ask me to reconsider my dismissal. [ECF No. 15].
II.
Legal Standard
“In general, ‘reconsideration of a judgment after its entry is an extraordinary
remedy which should be used sparingly.’” Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998) (quoting 11 WRIGHT
ET AL.,
FEDERAL PRACTICE
AND
PROCEDURE § 2810.1, at 124 (2d ed. 1995)). “Rule 59(e) permits a court to amend a
judgment . . . for three reasons: (1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available at trial; or (3) to correct
a clear error of law or prevent manifest injustice.” EEOC v. Lockheed Martin Corp.,
116 F.3d 110, 112 (4th Cir. 1997) (citing Hutchison v. Staton, 994 F.2d 1076, 1081
(4th Cir. 1993)). Courts “will not address new arguments or evidence that the moving
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Case 2:20-cv-00317 Document 17 Filed 01/06/21 Page 3 of 4 PageID #: 96
party could have raised before the decision issued.” Banister v. Davis, 140 S. Ct. 1698,
1703 (2020).
The three grounds on which a party can use Rule 59(e) to challenge a judgment
leave no room for rehashing arguments made prior to the judgment or which could
have been made prior to the judgment. See Pac. Ins. Co., 148 F.3d at 403 (“Rule 59(e)
motions may not be used, however, to raise arguments which could have been raised
prior to the issuance of the judgment, nor may they be used to argue a case under a
novel legal theory that the parties had the ability to address in the first instance.”);
id. (“‘The Rule 59(e) motion may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to the entry of
judgment.’”) (quoting 11 WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2810.1,
at 127–28 (2d ed. 1995)). “A party’s mere disagreement with the court’s ruling does
not warrant a Rule 59(e) motion.” Smith v. Donahoe, 917 F. Supp. 2d 562, 572 (E.D.
Va. 2013).
III.
Discussion
Plaintiffs fail to meet the standard for reconsideration in this case. In fact,
Plaintiffs do not even cite the applicable standard or discuss any of the available
grounds in their Motion. Instead, Plaintiffs argue for the first time that New River
was properly served on July 7, 2020, prior to my Order to Show Cause. See [ECF No.
15, at 2]. Even if true, this argument was available to Plaintiffs at the time they
responded to the Order to Show Cause. Because Rule 59(e) “may not be used . . . to
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raise arguments which could have been raised prior to the issuance of the judgment,
nor may they be used to argue a case under a novel legal theory that the parties had
the ability to address in the first instance,” this argument does not provide grounds
upon which I could reconsider my ruling. Pac. Ins. Co., 148 F.3d at 403. Further, the
remainder of Plaintiffs’ Motion does nothing more than rehash their arguments that
service upon the United States Attorney was proper through the West Virginia
Secretary of State and that they should not be penalized for “attempting to find
alternatives to personal service” during the COVID-19 pandemic. [ECF No. 15, at 3].
Because Rule 59(e) “may not be used to relitigate old matters,” these arguments also
fail to provide grounds for reconsideration. Pac. Ins. Co., 148 F.3d at 403 (quoting 11
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2810.1, at 127–28 (2d ed. 1995)).
IV.
Conclusion
Plaintiffs fail to argue any of the three available grounds upon which to grant
a Motion for Reconsideration. Therefore, the Motion [ECF No. 15] is DENIED. The
court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
4
January 6, 2021
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