Opinion
1:01CV00643
August 27, 2003
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff Donald Steven Butler's ("Plaintiff" or "Butler") Motion for Reconsideration [Document #17]. Pursuant to his Motion for Reconsideration, Plaintiff seeks to have the Court reevaluate its December 12, 2002 Order and Judgment [Document #16] in which Defendant's Motion for Summary Judgment [Document #9] was granted. For the reasons explained below, Plaintiff's Motion for Reconsideration is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
A detailed factual account of this case is contained in the Court's December 12, 2002 Memorandum Opinion [Document #15]. As a result, a complete factual history of this matter is not necessary. That notwithstanding, the Court notes that Plaintiff originally filed suit against Defendant Sears Roebuck Co. ("Defendant" or "Sears") alleging that Sears intentionally, deliberately, and illegally reported the non-payment of his credit card account to Equifax, thereby engaging in unfair and deceptive trade practices, in violation of Chapter 75 of the General Statutes of North Carolina. In short, Plaintiff purchased a washer/dryer unit from Sears, which later malfunctioned and caused water damage to Plaintiff's home. Sears credited Plaintiff's Sears Premium Credit Card Account ("Sears Account") for the value of the unit, and Plaintiff bought another unit, which he also charged to his Sears Account. Following his purchase, Plaintiff never remitted payment to Sears for the charges to his Sears Account. After corresponding with Sears' representatives about the damage to his home, Plaintiff took the position that he did not have to make any payments or pay his Sears' credit card for charges on the new unit until Sears settled and resolved his claim for the water damage to his home. However, there is no indication that anyone from Sears had advised Plaintiff to proceed in that manner. Eventually, Butler settled his claim with Sears for the water damage to his home, whereupon Plaintiff signed a liability release which contained language discharging Sears from any causes of action or liability that had already arisen or that Plaintiff might attempt to assert in the future arising out of and relating to the incident which generated the litigation against Sears and Equifax, that is, the damage to Plaintiff's home from the faulty washer/dryer unit.
On May 7, 2002, Defendant filed a Motion for Summary Judgment with respect to the claims Plaintiff asserted in this case. Essentially, Defendant argued that Summary Judgment was appropriate because Butler had executed a release in the first case he had brought against Defendant and taken a voluntary dismissal of that matter. Defendant asserted that the release had res judicata effect on Butler's claim in the present case. By way of a letter dated July 3, 2002 [Document #13], Plaintiff's counsel, Mr. William T. Rightsell, Jr. ("Mr. Rightsell"), was notified by the Clerk of Court for the Middle District of North Carolina that "[n]o response has been filed to the defendant's motion for summary judgment, filed May 7, 2002 [See Local Rule 56.1(e)]." The letter further provided that "[consequently, this motion will be referred to the Court on July 19, 2002 for consideration, without a hearing, on the unopposed motion." Neither Plaintiff nor his attorney ever filed a response to Defendant's Motion for Summary Judgment. Accordingly, pursuant to Local Rule 7.3(k), the Court considered Sears' Motion for Summary Judgment as being uncontested. Nevertheless, the Court also considered the substantive basis for Sear's Motion for Summary Judgment which contended that Plaintiff's claim for unfair trade practices should fail as a matter of law. On December 12, 2002, this Court granted Defendant's Motion for Summary Judgment both procedurally and substantively as a matter of law for the reasons asserted by Defendant. Thereafter, on December 23, 2002, Plaintiff, appearing pro se, filed the instant Motion for Reconsideration requesting that the Court reevaluate its decision and allow Plaintiff's Motion for Reconsideration.
It is clear that Plaintiff's attorney, Mr. Rightsell was representing him at the time Defendant's Motion for Summary Judgment was filed because subsequent to the filing of Defendant's Motion for Summary Judgment, on May 24, 2002, Mr. Rightsell, along with Defendant's counsel, submitted a Stipulation of Dismissal [Document #11] which requested that Equifax be dismissed as a Defendant in this case. On June 6, 2002, this Court entered an Order [Document #12] to that effect.
Plaintiff contends he is appearing pro se at this point because of some "privileged discussion" he had with his attorney. Plaintiff, however, does not reveal what attorney he had discussions with or the specific nature of the privilege that he is claiming.
II. DISCUSSION
Butler's request that the Court set aside its previous ruling is appropriately addressed as for a motion for reconsideration. Rule 60(b) of the Federal Rules of Civil Procedure provides, in pertinent part, that the Court may relive a party from a judgment or order on the basis of "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b) (1). "To bring himself within Rule 60(b), the movant must make a showing of timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances." Werner v. Carbo, 731 F.2d 204, 206 (4th Cir. 1984) (citation omitted). When directed at the court, the purpose of such a motion is to provide "the district court [an opportunity] to correct an erroneous [order or] judgment and thereby avoid the necessity of an appeal." United States v. Jones, 42 F. Supp.2d 618, 620 (W.D.N.C. 1999). It is important to recognize, however, that Rule 60(b) provides for extraordinary relief that is only to be provided upon a showing of exceptional circumstances. Compton v. Alton S.S. Co., 608 F.2d 96, 102 (4th Cir. 1979).
Both Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure permit the Court to entertain a Motion for Reconsideration. Rule 59(e) does not set out a specific standard, but rather recognizes that a court can alter or amend a judgment. Fed.R.Civ.P. 59(e). The Fourth Circuit has recognized three occasions upon which a court may amend an earlier judgment pursuant to Rule 59(e): (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; and, (3) to correct a clear error of law or prevent manifest injustice. Pacific Ins. Co. v. Am. Nat. Fire Ins., 148 F.3d 396, 403 (4th Cir. 1998) (citation omitted). Because Butler's argument regarding his attorney at the time the Court considered Sears' Motion for Summary Judgment is not premised upon a change in law, new evidence, or an error of law, the Court will examine Butler's Motion for Reconsideration as though he filed it pursuant to Rule 60(b).
As an initial matter, the Court notes that Plaintiff did not introduce any additional facts in his Motion for Reconsideration, but rather he disputes the Court's decision based upon the facts that were available to the Court at the time it considered Defendant's Motion for Summary Judgment. (Mot. for Recons. at 1.) As the basis of his Motion for Reconsideration, Butler contends that Sears' actions are sufficient to establish the elements of fraud, which would then support a claim for unfair and deceptive trade practices. Specifically, Butler maintains that Sears made misleading statements when it negotiated with him to settle the claim he brought against it for water damages to his home, and then "published misleading statements suggesting that Butler had simply failed to pay his bills to them." (Mot. for Recons. at 4.) As a second basis to support his Motion for Reconsideration, Butler, appearing pro se, asserts that the Court should set aside its previous order to permit him, through new counsel, to respond to Defendant's Motion for Summary Judgment. Essentially, Butler now requests that the Court permit him to appear with new counsel and present a full argument in opposition to Defendant's Motion for Summary Judgment which he or his attorney previously failed to do. (Mot. for Recons. at 4.)
With regard to Butler's first basis for requesting reconsideration, that is, that the facts available to the Court establish the elements of fraud to support his claim for unfair and deceptive trade practices, the Court dismissed Plaintiff's claim after addressing this identical issue in its December 12, 2002 Memorandum Opinion. Butler, however, now asks the Court to reconsider its decision as to the insufficiency of the facts to support a claim for a violation of the Unfair and Deceptive Trade Practices Act.
To establish a claim for unfair or deceptive trade practices under N.C. Gen. Stat. § 75-1.1 a plaintiff must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, and, (3) which proximately caused injury to the plaintiff. Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001).
As already stated, Butler contends that Sears engaged in fraudulent conduct, amounting to an unfair trade practice, when it made misleading statements, that is, Sears negotiated to settle the claim brought by Butler and simultaneously notified Equifax that he failed to pay his Sears Account bill. The Court, however, determined that the acts in which Sears engaged, notably reporting Butler's non-payment of his Sears Account to Equifax, did not constitute an unfair or deceptive act or practice. There is no basis upon which the Court should reconsider this matter because Butler has not offered any additional facts for the Court to consider. Butler's present argument is one that simply disagrees with the substantive ruling made by the Court to the extent that he believes that "based on the admitted facts [he] has a cognizable claim." (Mot. for Recons. at 1.) Butler's argument alone does not suggest any exceptional circumstance that would justify granting relief pursuant to Rule 60(b). Accordingly, as the Court has already fully considered the facts and law that are relevant to a consideration of Butler's claim for unfair and deceptive trade practices, prior to issuing its December 12, 2002 Memorandum Opinion and Order and Judgment, the Court finds no reason to revisit the matter at this time.
Butler also contends that the Court should set aside its previous order to permit him, through new counsel, to respond to Defendant's Motion for Summary Judgment. Butler asserts that Defendant's Motion for Summary Judgment was only unopposed because his counsel at the time, Mr. Rightsell, did not submit a response brief in opposition to Defendant's Motion for Summary Judgment. At best, the Court can only view Butler's additional argument as an attempt to create an exceptional circumstance that would warrant relief being granted pursuant to Rule 60(b). Butler further explains that a response was not filed because he "believed a hearing on this matter had been scheduled and that he would be able to present argument through a new attorney at that time." (Mot. for Recons. at 4.) For this reason he requests a new hearing and advised the Court that he "believed that he had made appropriate arrangements with a new attorney so that a response would be timely filed." (Mot. for Recons. at 4.) First of all, there is nothing in the record which would have led Butler to believe that he would have a hearing on Defendant's Motion for Summary Judgment. In fact, as noted previously, Butler's attorney, Mr. Rightsell, was reminded as early as July 3, 2002 that no response had been filed in response to Defendant's May 7, 2002, Motion for Summary Judgment and that the matter would therefore be submitted to the Court on July 19, 2002, for consideration without a hearing. Butler makes reference to now having a new attorney to respond to Defendant's Motion for Summary Judgment. It is noteworthy, however, that no attorney other than Mr. Rightsell has made any appearances in this case on behalf of Butler. In addition, at no time during the pendency of this case did Mr. Rightsell move to withdraw as counsel for Butler. In fact, it appears from the record that Mr. Rightsell continued to act on Butler's behalf at least until December 8, 2002 at which time Mr. Rightsell served pretrial disclosure material upon Defendant's counsel. (Def. Sears Roebuck Co.'s Resp. in Opp. to Pl.'s Mot. for Recons. at 10.) This action was taken just shortly before the Court entered its Order and Judgment on December 12, 2002. Butler's attempt now to get a new attorney and have a new hearing because he believed that Mr. Rightsell failed to respond to Defendant's Motion for Summary Judgment would still not advance Butler's present motion because a lawyer's ignorance or carelessness does not present cognizable grounds for relief from judgment. Evans v. United Life Accident Ins. Co., 871 F.2d 466, 472 (4th Cir. 1989).
The Court must also consider the prejudicial effect upon Defendant to the extent the Court would allow Butler or a new attorney to respond to Defendant's Motion for Summary Judgment more than a year after notice was given to Butler's attorney that a response had not been timely filed, and the matter would be submitted to the Court as being unopposed. Any Cir. 1988). The Court finds that it indeed would be prejudicial to Defendant at this point to allow Plaintiff to reopen this matter with a new attorney for the purpose of giving Plaintiff a second chance to respond to a Motion for Summary Judgment filed by Defendant on May 7, 2002. This is particularly so in this case, to the extent that the Court's December 12, 2002, Memorandum Opinion and Order and Judgment addressed both the procedural basis for dismissing Plaintiff's claim, as well as the substantive nature of Defendant's Motion for Summary Judgment, although Butler did not respond to Defendant's Motion for Summary Judgment.
III. CONCLUSION
For the reasons stated herein, Butler's Motion for Reconsideration fails to demonstrate any exceptional circumstances so as to warrant a reconsideration of the Court's Order and Judgment entered on December 12, 2002.
IT IS THEREFORE ORDERED that Butler's Motion for Reconsideration [Document #17] is hereby DENIED.