United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge.
matter is before the court on plaintiff's motion to set
aside final order of judgment pursuant to Fed R. Civ. P.
60(b), which the court construes to include a motion to
extend the time to file a notice of appeal and motion to
reopen the appeal. (DE 45). The issues raised have been fully
briefed and are ripe for adjudication. For the following
reasons, this court denies plaintiff's motion.
August 17, 2016, plaintiff filed this action, pro
se, against defendants, alleging that defendants officer
Stephen Strickland, officer Tracey Carter, and Bobby Dean
Kemp Jr. violated plaintiff's rights and trespassed on
his land when officer Strickland pulled over Bobby Dean Kemp
Jr. in a traffic stop and arrested him, leaving behind
Kemp's vehicle on plaintiff's property for 5 hours.
court issued an order on March 7, 2017 granting certain
defendants' motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6). (DE 37). Final judgment was entered on March 7,
2017, dismissing the case. (DE 38). On April 7, 2017,
plaintiff filed a notice of appeal. (DE 40). On June 26,
2017, the United States Court of Appeals for the Fourth
Circuit issued an unpublished opinion citing Fed. R. App. P.
4(a)(1) and dismissing plaintiff's appeal. (DE 43);
see Fed. R. App. P. 4(a)(1) (“In a civil case,
except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c),
the notice of appeal required by Rule 3 must be filed with
the district clerk within 30 days after entry of the judgment
or order appealed from”). On July 5, 2017, plaintiff
filed the current motion in what appears to be an attempt, at
least in part, to correct the untimely filing of his notice
of appeal. This matter was reassigned to the undersigned
district judge on July 28, 2017.
court construes plaintiff's motion to include a motion 1)
to extend the time to file an appeal; 2) to reopen the time
to file an appeal; or 3) to set aside final order of
court first turns to plaintiff's motion to extend the
time to file an appeal. Fed. R. App. P. 4(a)(5) allows the
district court to extend the time to file a notice of appeal
if: “(i) a party so moves no later than 30 days after
the time prescribed by this Rule 4(a) expires; and (ii)
regardless of whether its motion is filed before or during
the 30 days after the time prescribed by this Rule 4(a)
expires, that party shows excusable neglect or good
cause.” Fed. R. App. P. 4(a)(1) allows 30 days
following the entry of an order to file a notice of appeal.
seeks to extend the time to file a notice of appeal
approximately 120 days after the court issued its order and
final judgment dismissing plaintiff's case. Pursuant to
Fed. R. App. P. 4(a)(5)(i), plaintiff's time to file a
motion to extend the time to file a notice of appeal expired
60 days prior to the filing of this motion. Therefore, the
motion is not timely and is DENIED on that basis.
plaintiff has filed a motion to reopen the time to file an
appeal. Fed. R. App. P. 4(a)(6) allows the district court to
reopen the time to file an appeal. The time to file an appeal
may only be reopened if: “(A) the court finds that the
moving party did not receive notice under Fed.R.Civ.P. 77(d)
of the entry of the judgment or order sought to appealed
within 21 days after entry; (B) the motion is filed within
180 days after the judgment or order is entered or within 14
days after the moving party receives notice under Federal
Rule of Civil Procedure 77(d) of the entry, whichever is
earlier; and (C) the court finds that no party would be
does not deny receipt of the order and final judgment
dismissing this case with prejudice as required by Fed. R.
App. P. 4(a)(6). Plaintiff asserts instead that because of
his inexperience practicing before federal courts, his
untimely filing was due to “professional
incompetence.” (DE 45 at 4-5). Because plaintiff
received proper and timely notice of the order and judgment
of the court, plaintiff's motion is DENIED.
plaintiff has filed a motion to set aside final order of
judgment. Fed.R.Civ.P. 60(b) allows the court to relieve a
party from a final judgment, order, or proceeding for the
(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 or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
asserted change in decisional law subsequent to a final
judgment provides no basis for relief under Rule 60(b).
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