United States District Court, W.D. North Carolina, Asheville Division
MARY McNEILLY, Administrator of the Estate of ARCHIE K. McNEILLY, JR., Plaintiff,
ALAN NORMAN, officially as Sheriff of Cleveland County, LIBERTY MUTUAL INSURANCE CO., as surety for the Sheriff, DURWIN BRISCOE, officially, DAVID GIBSON, A.D. McCRAY, BRITTANY MORTON, JAMES D. OAKS, JORDAN T. PERKINS, M.R. USSERY, TODD A. WYLLYS, R.N. WESTBROOK, each of them individually and officially, SOUTHERN HEALTH PARTNERS, INC., TERESA SMITH, CRYSTAL LAIL, PAMELA PATTERSON, and MANUEL MALDONADO, each of them individually, Defendants.
Reidinger, United States District Judge.
MATTER is before the Court on the Plaintiff's
Motion to Reconsider [Doc. 49].
Plaintiff moves the Court to reconsider its August 7, 2018
Order [Doc. 34] dismissing Southern Health Partners, Inc.,
Teresa Smith, Crystal Lail, Pamela Patterson, and Manuel
Maldonado (“the SHP Defendants”) from this action
and its October 19, 2018 Order [Doc. 47] denying
certification of the August 7, 2018 Order for an appeal.
Court may grant a motion for reconsideration under Rule 59(e)
of the Federal Rules of Civil Procedure only in the following
circumstances: “(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 to prevent manifest injustice.” Hill v.
Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (quoting
Collison v. Int'l Chem. Workers Union, 34 F.3d
233, 236 (4th Cir. 1994)). Furthermore, “Rule 59(e)
motions may not be used to make arguments that could have
been made before the judgment was entered.”
Hill, 277 F.3d at 708. Indeed, the circumstances
under which a Rule 59(e) motion may be granted are so limited
that “[c]ommentators observe ‘because of the
narrow purposes for which they are intended, Rule 59(e)
motions typically are denied.'” Woodrum v.
Thomas Mem'l Hosp. Found., Inc., 186 F.R.D. 350, 351
(S.D.W.Va. 1999) (quoting 11 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and
Procedure § 2810.1 (2d ed.1995)). Here, the
Plaintiff argues that reconsideration is necessary to correct
a clear error of law or to prevent manifest injustice.
now the Plaintiff's third attempt to litigate the same
issues that have been previously addressed by two judges of
this Court. The Plaintiff makes the same arguments and cites
to the same authorities she previously presented in her
Response in opposition to the Defendants' Motion to
Dismiss, and her Objections to the Memorandum and
Recommendation. While the Plaintiff argues that the
Court's decision is “clearly erroneous, ” the
Plaintiff focuses her argument on the tolling provisions
applicable to 42 U.S.C. § 1983 claims. Those tolling
provisions pertain to the issue of whether these claims were
timely filed. The applicability of the statute of
limitations, however, was not the central issue that was
presented to this Court nor was it the focus of this
Court's Orders. The Defendants have not even asserted
that the statute of limitations had expired. Rather, the
central issue presented concerned the Plaintiff's
attempted removal of a case from state court to federal
court. The Order of this Court concerns the legal conclusion
that the federal court does not have subject matter
jurisdiction when a plaintiff takes actions that in substance
and in effect serves to remove a case to federal court after
that respective plaintiff has already chosen to file her case
in the state court forum.
ruling follows the plain language of 28 U.S.C. § 1441
and the congressional intent behind this statute to limit
removal to only defendants. This Court also properly relied
on authority of the Supreme Court and the Ninth Circuit,
whose decisions clearly show that 28 U.S.C. § 1441
expressly limits the right of removal to defendants and that
when a plaintiff attempts removal, such as in the present
case, the federal court will not have subject matter
jurisdiction over the action. For all these reasons, the
Plaintiff's motion for reconsideration of the August 7,
2018 Order dismissing her claims against the SHP Defendants
Plaintiff has also failed to show a basis for reconsideration
of this Court's Order denying Plaintiff's Motion to
Certify Order for Appeal. The Plaintiff argues only one basis
for reconsideration of this Court's denial of
Plaintiff's motion, namely that she is unable to refile
her 42 U.S.C. § 1983 claims in state court. [Doc. 50 at
16]. In so arguing, the Plaintiff raises the same arguments
that have already been addressed by this Court. Moreover, the
Plaintiff's primary argument for reconsideration - that
she is unable to refile her § 1983 claim -- is belied by
the fact that she in fact refiled her claims, including her
§ 1983 claim, against the SHP Defendants in state court
on November 16, 2018. [See Doc. 61-1].
the Plaintiff has not raised any additional facts or made any
additional argument to establish that the Order Denying
Plaintiffs Motion to Certify Order for Appeal was clearly
erroneous or that reconsideration is necessary to prevent
manifest injustice. Accordingly, the Plaintiffs motion for
reconsideration of that Order is also denied.
IS, THEREFORE, ORDERED that the Plaintiffs Motion to
Reconsider [Doc. 49] is DENIED.