United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF U.S. DISTRICT JUDGE
8, 2017, this case was reassigned to this court from Senior
United States District Judge James C. Fox, who has taken
inactive senior status [D.E. 212]. The court now addresses
several pending motions of plaintiff Carol Dalenko
("Dalenko"). Three of the motions ask the court to
extend the time for Dalenko to file memoranda in support of
other pending motions. See [D.E. 201]; [D.E. 208]; [D.E.
218]. Dalenko has already filed these memoranda. See [D.E.
203]; [D.E. 209]; [D.E. 219]. The court grants Dalenko's
motions for extension of time, and has considered her
has filed two motions under Rule 60(a) of the Federal Rules
of Civil Procedure. See [D.E. 200]; [D.E. 207]. She asks the
court to clarify and correct Judge Fox's order denying
Dalenko's motions to vacate the order of summary judgment
in favor of defendants, to stay, and for sanctions. See [D.E.
194]. Federal Rule of Civil Procedure 60(a) authorizes a
court to "correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record."
"Rule 60(a) applies when the court intended one thing
but by merely clerical mistake or oversight did
another." Rhodes v. Hartford Fire Ins. Co.. 548
F.App'x 857, 859 (4th Cir. 2013) (per curiam)
(unpublished) (quotation omitted). Under Rule 60(a) a court
can "correct either such mistake to conform the text
with its original intent." Sartin v. McNair Law Firm
PA. 756 F.3d 259, 266 (4th Cir. 2014). Whether to grant
a Rule 60(a) motion rests within the court's discretion.
See id. at 265.
Fox's order contains no mistakes or ambiguities that
conflict with or obfuscate the court's original intent.
Thus, the court denies the motion. See Id. at
265-66; Rhodes. 548 F.App'x 859-60.
seeks reconsideration of the court's order denying her
motion to vacate the grant of summary judgment in favor of
defendants. See[D.E. 215]. Dalenko does not say under what
Rule she seeks reconsideration. There are two possibilities:
Rule 59(e) and Rule 60(b). See Robinson v. Wix Filtration
Corp. LLC. 599 F.3d 403, 411 (4th Cir. 2010); In re
Burnley. 988 F.2d 1, 2-3 (4th Cir. 1992) (per curiam).
If made under Rule 59(e), Dalenko's motion is untimely
because she filed it more than 28 days after the court
entered judgment. See Fed.R.Civ.P. 59(e) ("A motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment."). Thus, the court
treats Dalenko's motion as arising under Rule 60(b). See
Burnley. 988 F.2d at 2-3.
court has considered Dalenko's motion under Rule 60(b).
See Fed.R.Civ.P. 60(b); Robinson. 599 F.3d at 411-13:
Heyman v. M.L. Mkte. Co.. 116 F.3d 91.94 (4th Cir.
1997): Powell v. State Farm Fire & Cas. Auto. Ins.
Co.. 993 F.2d 46, 48 (4th Cir. 1993); Burnley.
988 F.2d at 2-3; Werner v. Carbo. 731 F.2d 204,
206-07 (4th Cir. 1984); Compton v. Alton S.S. Co..
608 F.2d 96, 101-03 (4th Cir. 1979). The motion does not meet
the governing legal standard and is denied.
final two motions request that this case be reassigned to a
different judge. See [D.E. 214]; [D.E. 222]. The court
construes these motions as motions to recuse under 28 U.S.C.
§455. See Mosley v. Tate No.3:13-CV-66-RJC.2013
WL 653271.at * 4(W.D. N.C. Feb.21.2013) (unpublished). The
court has reviewed the motions under the governing legal
standard. See Microsoft Corp. v. United States. 530
U.S. 1301, 1301-02 (2000) (Rehnquist, C.J.); Liteky v.
United States. 510 U.S. 540, 546-56 (1994);
Liljeberg v. Health Servs. Acquisition Corp.. 486
U.S. 847, 858-61 (1988); Belue v. Leventhal, 640
F.3d 567, 572-76 (4th Cir. 2011); United States v.
Lentz. 524 F.3d 501, 530 (4th Cir. 2008); United
States v. Cherry. 330 F.3d 658, 665-66 (4th Cir. 2003);
United States v. DeTemple, 162 F.3d 279, 283-88 (4th
Cir. 1998). No basis exists for recusal, and the motions are
the court DENIES plaintiff s motions to clarify and correct
[D .E. 200, 207], motions to reassign the case [D.E. 214,
222], and motion for reconsideration [D.E. 215]. The court
GRANTS plaintiff's motions for extension of time [D.E.
201, 208, 218] and motion to amend her proposed order [D.E.
[ 1] Alternatively, even if timely, the
motion does not meet the governing legal standards under Rule
59(e). See, e.g., Robinson. 599 F.3d at 407;
Zinkand v. Brown. 478 F.3d 634, 637 (4th Cir. 2007);
Ingle v. Yelton. 439 F.3d 191, 197 (4th Cir. 2006);
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