United States District Court, E.D. North Carolina, Northern Division
Earl Britt, Senior, U.S. District Judge
matter is before the court on defendant City of Elizabeth
City (“the City”) and the individual
defendants' (collectively “defendants”)
motion for relief and reconsideration. (DE # 68.) Joseph Lee
Caraway (“plaintiff”) responded in opposition.
(DE # 73.) Defendants filed a reply. (DE # 74.) The matter is
now ripe for adjudication.
move the court to reconsider its 30 November 2018 order
granting in part and denying in part defendants' motion
for summary judgment. Specifically, defendants “request
that the Court grant relief pursuant to [Federal Rule of
Civil Procedure 60(b)] from the final judgment denying
qualified immunity as a matter of law and reconsider pursuant
to [Federal Rule of Civil Procedure 54(b)] its interlocutory
[o]rder denying summary judgment.” (Defs.' Mot.
Recons., DE # 68, at 2.) Defendants challenge the court's
analysis of the parties' cross- motions for summary
judgment on plaintiff's claims, including the denial of
Lieutenant Jamie LaCombe (“LaCombe”) and Officer
Cathy Hewitt's (“Hewitt”) entitlement to
qualified immunity. In response, plaintiff disputes the
standard of review defendants contend the court should apply
in resolving the motion and contend the court did not commit
clear error to the extent it denied defendants' motion
for summary judgment.
court first determines the appropriate standard of review. In
its 30 November 2018 order, in response to the two arguments
advanced by defendants on the issue of qualified immunity,
(see Defs.' Mem. Supp. Summ. J., DE # 42, 8-10),
the court found that “because probable cause or its
absence is an evidentiary issue in this case . . . [the]
claim for retaliatory arrest is not defeated” and that
“LaCombe and Hewitt took personal action leading to
plaintiff's arrest, ” (see DE # 64, at 20,
21). As for defendants' argument regarding probable
cause, because the court found a “genuine dispute of
material fact as to whether the City enforced a policy
banning all amplification at the Festival[, ]”
(id. at 18), and a genuine issue of material fact as
to “the application of and scope of the Policy, which
is necessary to understanding if the Policy was applied to
plaintiff, ” (id. at 16), it was unable to
conclude that there was probable cause to arrest plaintiff
for either a violation of the City's Noise Ordinance, or
LaCombe and Hewitt's alleged attempt “to get
[p]laintiff to comply with the noise ordinance by turning off
his amplification, ” (Defs.' Mem. Supp. Summ. J.,
DE # 42, 9). The court's denial of defendants' motion
for summary judgment on the basis of qualified immunity
defense because of a genuine issue of a material fact is an
interlocutory order. See Johnson v. Jones, 515 U.S.
304, 313, 319-20 (1995) (declining to find a district
court's denial of summary judgment based on a pretrial
record on the issue of qualified immunity final for a
determination of appealability); Pegg v.
Herrnberger, 845 F.3d 112, 117 (4th Cir. 2017)
(“[W]e have jurisdiction to consider purely legal
questions, but not over the district court's
determination that the summary judgment record in this case
raised a genuine issue of fact because that is not a final
decision for purposes of 28 U.S.C. § 1291.”)
(internal quotation marks and citation omitted).
any order. . . however designated, that adjudicates fewer
than all the claims. . . of fewer than all the parties does
not end the action. . . and may be revised at any time before
the entry of a judgment adjudicating all the claims.
Fed. R. Civ. P. 54(b). Courts, however, do not possess
unlimited discretion in this regard. See Carlson
v. Bos. Sci. Corp., 856 F.3d 320, 326 (4th Cir. 2017)
(finding denial proper when a motion for reconsideration is
“merely a vessel for the very evidence that was
initially lacking in opposition to summary judgment”);
Allen v. Anderson, No. 5:13-CT-3238-FL, 2018 WL
1542232, at *3 (E.D. N.C. Mar. 29, 2018), aff'd,
736 Fed.Appx. 416 (4th Cir. 2018). Rather, “a court may
revise an interlocutory order under the same circumstances in
which it may depart from the law of the case: (1) a
subsequent trial produc[ing] substantially different
evidence; (2) a change in applicable law; or (3) clear error
causing manifest injustice.” Carlson v. Bos. Sci.
Corp., 856 F.3d 320, 325 (4th Cir. 2017) (internal
quotation marks and citations omitted).
these factors are present here. Instead, defendants'
motion relies on new evidentiary authorities, (see
Def.s' Mem. Supp., DE # 69, at 11, 13 & n.4 (a page
of LaCombe's deposition testimony and a 10 December 2018
declaration)), additional legal arguments based upon newly
cited legal authorities, and new factual arguments based upon
these legal authorities. These are not proper grounds for the
district court to consider when determining whether to
reconsider a denial of summary judgment for a genuine issue
of material fact. See Carlson, 856 F.3d at 324-25
(“The Federal Rules of Civil Procedure require parties
to cite all evidence in support of their positions at summary
judgment. . . The responsibility to comb through the record
in search of facts relevant to summary judgment falls on the
parties-not the court.”).
aforementioned reasons, the court DENIES defendants'
motion for reconsideration. A jury ...