United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon Plaintiff's Motion for
Reconsideration [Doc. No. 18] of this Courts Order, granting
Defendant's Motion for Two Independent Medical Exam [Doc.
No. 17]. Defendants have filed a response and Plaintiffs have
elected not to file a reply. Accordingly, this matter is ripe
relevant procedural history is as follows: this action was
filed May 18, 2016 and subsequently removed to this Court on
June 15, 2016. [Doc. No. 1]. Plaintiff claims Defendant's
negligence caused her physical and psychological damage.
[Doc. No. 1 Ex. 1]. On May 31, 2017, Defendant moved for two
independent medical examinations and filed a memorandum of
law in support of that motion. [Doc. No. 16]. Plaintiff
failed to file a response. Accordingly, the Court granted
Defendant's motion in its entirety on June 15, 2017.
[Doc. No. 17]. On June 20, 2017, Plaintiff moved for the
Court to reconsider that Order. [Doc. No. 18].
district court retains the power to reconsider and modify its
interlocutory judgments, including partial summary judgments,
at any time prior to final judgment when such is
warranted.” Am. Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514-15 (4th Cir. 2003) (citing
Fayetteville Investors v. Commercial Builders,
Inc., 936 F.2d 1462, 1469 (4th Cir. 1991)); See
also Fed. R. Civ. P. 54(b).
[C]ourts applying Rule 54(b) have borrowed factors from Rule
59(e) and Rule 60(b), which include (1) evidence not
previously available has become available, (2) an intervening
change in the controlling law, (3) a clear error of law or
manifest injustice, (4) mistake, inadvertence, surprise or
excusable neglect, or (5) any other reason justifying relief
from the operation of the judgment.
Sarma v. Wells Fargo & Co., No. 1:15-MC-63, 2016
WL 410013, at *3 (M.D. N.C. Feb. 2, 2016) (quoting McGhee
v. United States, No. 5:09-CT-3192-BO, 2011 WL 2976274,
at *1 (E.D. N.C. July 22, 2011) (citing Fayetteville
Investors, 936 F.2d at 1469)). Plaintiff argues that the
fourth and fifth prongs, listed above, are relevant here and
weigh in Plaintiff's favor. Pl.'s Br. at 3-5
Therefore, Plaintiff concludes, the Court should reconsider
and amend the Order so as to reflect a
“compromise” between the two parties'
injustice is an inclusive concept that encompasses, inter
alia, the impact of the challenged ruling on [the party
seeking reconsideration].” Robinson v. Wix
Filtration Corp., LLC, 599 F.3d 403, 421 (4th Cir. 2010)
(King, J., dissenting on other grounds) (citing Zinkand
v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)). Plaintiff
argues that the Order, as it stands, would needlessly subject
Plaintiff to additional mental and physical stress and strain
so as to punish Plaintiff for attempting to work with
opposing counsel to reach a compromise. Such an impact would,
under the dissenting opinion in Robinson, work a
manifest injustice. Pl.'s Br. at 3. This argument,
however, lacks merit. Defendants point out that the
doctors' examinations will be reasonably convenient
because both doctors work in the same building and Defendants
would provide professional transportation for Plaintiff if so
requested. Further, the doctors are testing related, but
different things. The first doctor, Dr. Gualtieri, is a
medical doctor testing for physical damage, whereas the
second doctor, Dr. Hervey, is a neuropsychologist testing for
psychological damage. [Doc. No. 16 at 2-3]. Because of
Defendant's willingness to accommodate Plaintiff and
because the heart of the dispute falls to Plaintiffs physical
and psychological injuries, the Order, as it stands, would
not work a manifest injustice.
establish grounds of mistake or inadvertence, a movant is
required to "make some showing of why he was justified
in failing to avoid mistake or inadvertence." Moore
v. Bethesda Fire. Dept, Inc., No. 90-2906, 1991 WL
126579, at *5 (4th Cir. July 15, 1991). Plaintiffs second
argument is entirely based upon the allegation that the
parties were discussing a compromise that would satisfy both
parties. PL's Br. at 4-5. Plaintiff provided an email
conversation between parties' respective counsel as proof
of such discussion. [Doc. No. 18 Ex. 1] However, even if the
Court was to assume that such discussion constitutes mistake,
it does not explain why Plaintiff could not have informed the
Court of such discussions, whether through a motion to stay,
a formal response to the original motion, or, at the very
least, a phone call or email. Such a mistake cannot be
excused because the parties may have or may have not been
discussing a compromise at the time.
Plaintiffs Motion for Reconsideration of this Court's
Order, granting Defendant's Motion for Two Independent
Medical Exam, is ...