United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant's motion for
reconsideration of the Court's order denying its motion
to dismiss, as well as defendant's motion for stay or an
extension of time to file a responsive pleading and motion to
stay discovery. Plaintiffs have filed a motion to compel a
Fed.R.Civ.P. 26(f) conference and a motion to strike
defendant's reply to plaintiffs' response to
defendant's motion for reconsideration. Finally,
defendant has moved for leave to file excess pages in its
reply to its motion for reconsideration.
Court incorporates by reference as if fully set forth herein
the factual and procedural background as recited in its order
denying defendant's motion to dismiss. [DE 36].
Defendant, the United States, has asked the Court to
reconsider the denial of its motion to dismiss, and has filed
motions to delay the progression of the case until the motion
for reconsideration is decided. Plaintiffs, for their part,
seek to expedite commencement of discovery and for the case
to move ahead.
54(b) of the Federal Rules of Civil Procedure provides that a
court may revise any order entered prior to entry of final
judgment. The decision to do so lies within the discretion of
the court, which is not bound by the strict standards
applicable to requests to reconsider final judgment, but
which should be guided by the principles of the doctrine of
law of the case. Am. Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514-15 (4th Cir. 2003). "Thus,
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 producing substantially
different evidence; (2) a change in applicable law; or (3)
clear error causing manifest injustice." Carlson v.
Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017)
(internal quotation, alterations, and citation omitted)
(noting similarity of this standard to that applicable to
Rule 59(e) motions, except that law-of-the-case standard
allows for new evidence discovered during litigation as
opposed to evidence not available at trial to serve as basis
for reconsideration motion). Motions to reconsider
interlocutory orders are "disfavored and should be
granted sparingly." Wootten v. Commonwealth of
Virginia, 168 F.Supp.3d 890, 893 (W.D. Va. 2016)
(internal quotation and citation omitted).
evidence has been presented nor does the United States argue
that there has been a change in applicable law. Thus, it
contends that the Court committed a clear error causing
manifest injustice when it denied the Rule 12(b)(6) motion.
To demonstrate that a court committed a clear error which
would result in manifest injustice, the decision must be
"dead wrong," not "just maybe or probably
wrong; it must... strike [the court] as wrong with the force
of a five-week-old, unrefrigerated dead fish." TFWS,
Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009)
(quoting Bellsouth Telesensor v. Info Sys. & Networks
Corp., 1995 WL 520978, *5 n. 6 (4th Cir. 1995)).
United States argues that the Court failed to address its
argument that the conduct plaintiffs allege, which occurred
in Virginia, cannot support the claims plaintiffs have raised
under North Carolina law; that the Court misapplied the
holding in United States v. Kubrick, 444 U.S. 111
(1979); that the Court should have accepted the
government's request to take judicial notice of prior
proceedings; and that the Court erred in applying equitable
tolling based on plaintiffs argument that they did not know
how ATF was negligent.
the United States' first argument, the United States
noted in one sentence of its reply to the response to its
motion to dismiss that plaintiffs "pled negligent
actions in Virginia, and, perhaps, in Washington, DC that do
not support FTCA negligence claims specifically pled under
North Carolina tort law." [DE 32 at 1]. The United
States failed to raise this argument in its motion to
dismiss, nor did it expound upon it beyond one sentence in
its reply brief. This is insufficient to raise an argument
for the Court's consideration, Russell v. Absolute
Collection Servs., Inc., 763 F.3d 385, 396 n.* (4th Cir.
2014); Laborers' Int'l Union of N. Am., AFL-CIO
v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d
Cir. 1994), and the Court will not now consider it for the
first time on a motion for reconsideration. See
Wootten, 168 F.Supp.3d at 893. Nor will the Court
consider the United States' passing mention of the
discretionary function exception to the FTCA, noted on page
ten of its brief in support of reconsideration [DE 48 at 10
n.6], as this issue was not raised in the motion to dismiss.
United States amply presented its arguments as to the
application of Kubrick, whether the Court should
take judicial notice of filings in prior litigation, and
whether equitable tolling should apply when presenting its
motion to dismiss. The Court considered those arguments and
ruled as it did. Importantly, the Court was presented with a
motion under Rule 12(b)(6), which limited its consideration
of the United States' timeliness defense to what was
presented on the face of plaintiffs' complaint, and the
Court determined that relying almost exclusively on
allegations in prior litigation to decide the motion would be
improper prior to allowing the parties to engage in
discovery. See, e.g., Waugh Chapel S., LLC v. United Food
& Commercial Workers Union Local 27, 728 F.3d 354,
360 (4th Cir. 2013). At bottom, the United States asks the
Court "to rethink what the Court ha[s] already thought
through - rightly or wrongly." Above the Belt, Inc.
v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (ED.Va.
1983). That simply fails to satisfy the applicable standard,
and the motion for reconsideration is denied.
light of the Court's ruling on the motion for
reconsideration and the current posture of the case, the
Court denies without prejudice plaintiffs' motion to
compel the United States to participate in a Rule 26(f)
conference. [DE 38]. The United States' motion to stay
discovery pending the Court's ruling on its motion for
reconsideration [DE 45] is denied as moot.
for the foregoing reasons, the motion for reconsideration [DE
47] is DENIED. The motion to stay or for extension of time to
file a responsive pleading [DE 40] is GRANTED IN PART. The
United States may file its responsive pleading not later than
November 22, 2019. The motion to compel [DE 38] is DENIED
WITHOUT PREJUDICE. The motion to stay discovery [DE 45] is
DENIED AS MOOT as this case shall now ...