United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on plaintiff's letter motion,
(DE 23), made pursuant to Federal Rule of Civil Procedure
60(b) received July 26, 2017, wherein plaintiff asserts that
the court's entry of summary judgment on July 13, 2017,
(DE 21), was in error. Defendant responded in opposition. It
urges the court to schedule a hearing to discuss with
plaintiff finality of this court's summary judgment
order. (DE 27). The court dispenses with any hearing. For
reasons that follow, plaintiff's motion is denied.
Plaintiff is noticed herein that the court is considering
entering a pre-filing injunction forbidding plaintiff from
filing any suit against defendant which involves claims
related to, or arising out of her 2009 forklift injury,
including all matters addressed in any prior North Carolina
case, state or federal, without leave of court.
proceeding pro se, filed this action under state and federal
law seeking damages arising from a forklift injury in 2009
allegedly sustained in the scope of her employment with
defendant. The court granted summary judgment in favor of
defendant as to all claims July 13, 2017, and directed the
clerk to close the case. (DE 21). Summary judgment issued on
the basis of res judicata where plaintiff's claims twice
previously were dismissed with prejudice in prior actions.
Plaintiff's first prior case, litigated in the General
Court of Justice, Superior Court Division for Wake County,
North Carolina, was dismissed with prejudice pursuant to
Rules 12(b)(4) and 12(b)(5) of the North Carolina Rules of
Civil Procedure for insufficiency of process and
insufficiency of service of process. Bell v. Weyerhaeuser
NR, Co. (“Bell I”), No. 14-CVS-3649
( N.C. Super. Ct. Dec. 1, 2014); see (DE 16-2 at
81). Plaintiff's second case, filed in the same court
prior to the close of Bell I and removed to this
court, concluded upon summary judgment granted April 29,
2015, in defendant's favor as to all claims on the ground
that plaintiff's claims were time-barred under the
applicable statute of limitations. Bell v. Weyerhauser
NR, Co. (“Bell II”), No.
14-CVS-15502 ( N.C. Super. Ct. Nov. 18, 2014); see Bell
II, No. 5:15-CV-18-FL, 2015 WL 1944917, at *1 (E.D. N.C.
April 29, 2015). In support of her motion, plaintiff directs
the court's attention to a document, which appears to
constitute a partial record of Bell I. The document
appears as follows:
s transmission includes also a hand-annotated partial copy of
this court's summary judgment order. (Id at
4-5). In addition, plaintiff has lodged separately on the
docket a set of documents pertinent to her underlying claims,
(DE 26), and a charge of discrimination filed by plaintiff
before the Equal Employment Opportunity Commission, dated
November 14, 2009. (DE 28). Finally, plaintiff filed with the
court a letter indicating that plaintiff possesses additional
documents pertinent to her underlying claims and purporting
to clarify that plaintiff first initiated complaints against
defendant with various government entities as early as 2005.
Motion for Relief from Final Judgment
60(b) authorizes the court to “relieve a party . . .
from a final judgment, order, or proceeding for . . .
mistake, inadvertence, surprise, or excusable neglect.”
Fed.R.Civ.P. 60(b). Under Rule 60(b), a movant first must
demonstrate that the movant acted promptly, that the movant
has a meritorious claim or defense, and that the opposing
party will not suffer prejudice by having the judgment set
aside. See Nat'l Credit Union Admin. Bd. v.
Gray, 1 F.3d 262, 264 (4th Cir. 1993); Augusta
Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,
843 F.2d 808, 811 (4th Cir. 1988) (per curiam). If those
three threshold conditions are met, the court then must
determine whether the movant has satisfied “one of the
six enumerated grounds for relief under Rule 60(b).”
Nat'l Credit Union, 1 F.3d at 266.
letter suggests that documents attached to her facsimile
transmission should be interpreted to demonstrate that
Bell I was not dismissed with prejudice and that
disposition of this action based upon res judicata was,
therefore, unwarranted. (Id. at 2 (“I would
also like to make the courts aware that the case mentioned in
several paragraphs of this supposal [sic] dismissal with
prejudice is an' untruth'. [sic]”)). However,
plaintiff's submission only further confirms this
court's earlier conclusion that defendant's motion to
dismiss Bell I was allowed and the case was
dismissed with prejudice where it states “14CVS3649:
Vernice Bell v. Weyerhauser Co . . .
Defendant's Motion to Dismiss for Insufficiency
of Service of Process - Allowed[.]” (DE 23 at
3 (emphasis added)); see also Bell I, Dec. 1, 2014,
Order Granting Mot. to Dismiss, No. 14-CVS-3649, (DE 16-2 at
81) (ordering that “Plaintiff's claims for relief
and this action are hereby dismissed with
prejudice.”) (emphasis added).
summary judgment in this case rested on the separate and
independent prior disposition of Bell II, which
disposition also supports summary judgment on the basis of
res judicata. See (DE 21 at 5
(“Plaintiff's claims in this matter are res
judicata barred; therefore, the action must be dismissed.
Specifically, plaintiff's claims rest upon the same
factual allegations constituting the basis for Bell
I and Bell II”)
(emphasis added)). Plaintiff's recent filings, do not
address Bell II, and therefore cast no doubt upon
this court's holding that where Bell II was
decided on the merits, involved the same parties, and
presented the same claims in issue here, this action is res
judicata barred. See Grausz v. Englander, 321 F.3d
467, 472 (4th Cir. 2003).
upon the foregoing, plaintiff has not satisfied any “of
the six enumerated grounds for relief under Rule 60(b)[,
]” Nat'l Credit Union, 1 F.3d at 266, but
simply attempts to re-litigate issues already decided by the
court. Rule 60 permits no such procedure. See CNF
Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395,
401 (4th Cir. 1995); Saunders v. City of Petersburg
Police Dep't, 158 Fed.Appx. 491, 491 (4th Cir. 2005)
(stating “Rule 60(b) may not be used to ...