United States District Court, E.D. North Carolina, Eastern Division
MOLLY YATES, individually, next-of-kin, personal representative and widow of BRADLEY YATES, Plaintiff,
TYREE DAVIS, current chief of the Enfield N.C. Police Department, in his individual and official capacity; WILLIE TILLERY, former chief of the Enfield, N.C. Police Department, in his individual and official capacity; and WILLIE HAMMIEL, officer of the Enfield Police Department in his official and individual capacity, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff's motion for
relief from order of dismissal, (DE 40), and plaintiff's
motion to remand (DE 46). Previously-dismissed defendants Wes
Tripp, Jason Ketter, and Christopher Boden (“former
defendants”) have filed opposition to the former
motion. No. response to the latter motion has been filed, and
the time to do so has elapsed. For reasons noted,
plaintiff's motion for relief is denied and
plaintiff's motion to remand is granted.
initiated this action November 6, 2017, in the General Court
of Justice, Superior Court Division, for Halifax County,
North Carolina, asserting federal claims under 42 U.S.C.
§ 1983, claims under the North Carolina Constitution,
and North Carolina common law claims sounding in negligence
and wrongful death. On January 2, 2018, defendants Tyree
Davis, Willie Hammiel, and Willie Tillery's
(“current defendants”) removed this action
pursuant to federal question jurisdiction in that plaintiff
“has based certain  claims for relief against
Defendants, by virtue of and under the United States
Constitution, and provisions of federal law, including 42
U.S.C. §1983.” (DE 1¶ 2).
January 29, 2018, former defendants filed motion to dismiss,
which the court granted on July 16, 2018, dismissing former
defendants without prejudice for failure of plaintiff to
serve said defendants with proper service of process. On
February 1, 2018, current defendants filed answer. (DE 15).
On August 22, 2018, case management order was entered,
providing that “[a]ny motion for leave to join
additional parties or to otherwise amend the pleadings shall
be filed by plaintiff by October 1, 2018.” (DE 27 at
November 5, 2018, plaintiff filed amended complaint, naming
both current and former defendants as well as “Halifax
County Emergency Services, in their official capacity.”
(DE 30 at 1). No. attachments were filed with the November 5,
2018, document. On the next day, November 6, 2018, plaintiff
filed motion for extension of time to amend complaint and
motion for extension of time to file amended complaint,
stating only, without reason, that plaintiff seeks order
extending time to amend complaint up to and through November
30, 2018. (DE 31). Also on November 6, 2018, plaintiff filed
an additional complaint, naming only former defendants and
Halifax Services, with proposed summons for each attached.
(DE 32). The November 5, 2018, amended complaint and November
6, 2018, complaint, in addition to naming different
defendants, contain different claims. (Compare DE 30
with DE 32). On November 14, 2018, current
defendants filed motion to strike plaintiff's November 5,
2018, amended complaint, to which plaintiff filed no
December 12, 2018, the court granted current defendants'
motion to strike, striking plaintiff's amended complaint
(DE 30) and complaint (DE 32), and denying as moot
plaintiff's motion for extension of time, holding
“[p]laintiff's disregard for the controlling
federal rules, prior scheduling orders, local rules of the
court, in addition to plaintiff's refusal to seek
opposing counsel's consent or leave of the court, warrant
granting current defendants' motion to strike and denying
as moot plaintiff's motion for extension of time.”
(DE 38 at 4).
January 7, 2019, new counsel for plaintiff filed
appearance. On January 14, 2019, plaintiff filed the
instant motion for relief from the court's July 16, 2018
order, dismissing former defendants without prejudice.
Plaintiff argues that “plaintiff Molly Yates the widow
of the deceased, should not be penalized from having her day
in court for the failure of her former counsel to properly
serve process over the Halifax County Sheriff and his two (2)
deputies, ” (DE 40 at 2), and seeks the court allow
plaintiff one year to refile her claims against dismissed
defendants pursuant to the North Carolina savings clause,
see N.C. R. Civ. P. 41(b); N.C. Gen. Stat. §
1A-1, Rule 41(b). No. other argument is offered. Former
defendants filed opposition to which plaintiff filed no
on February 4, 2019, plaintiff filed consent stipulation of
dismissal without prejudice as to all federal claims against
current defendants, (DE 44), as well as motion to remand
remaining state-law claims back to state court for lack of
federal subject matter jurisdiction, (DE 46).
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 Admin. Bd., 1 F.3d at 266.
plaintiff has failed to address any of the threshold
requirements under Rule 60(b) and requests only, almost six
months after entry of the court's order, that the court
amend its original order by adding a savings provision, in
accordance with North Carolina General Statute 1A-1, 41(b).
statue states as follows: “If the court specifies that
the dismissal of an action commenced within the time
prescribed therefor, or any claim therein, is without
prejudice, it may also specify in its order that a
new action based on the same claim may be commenced within
one year or less after such dismissal.” N.C. Gen. Stat.
1A-1, 41(b) (emphasis added). Plaintiff did not request
application of the North Carolina savings clause, and the
court did not so specify in its July 16, 2018 order. See
Topshelf Mgmt., Inc. v. Campbell-Ewald Co., 203
F.Supp.3d 608, 612 (M.D. N.C. 2016) (“The law was clear
at the time of dismissal that it was Topshelf's burden to
request a savings clause, had it desired one.”).
Because plaintiff has failed to meet any of the requirements
for relief under Rule 60(b), plaintiff motion for relief is
light of plaintiff and current defendants' consent
stipulation of dismissal without prejudice of all federal
claims against current defendants, the court dismisses
without prejudice plaintiff's federal claims against
current defendants. Because the only remaining claims arise
under state law, the court is without federal question