United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Annette Cummings (“Plaintiff” or
“Cummings”) brought this pro se action
to obtain judicial review of a decision by the General
Counsel of Defendant National Labor Relations Board
(“Defendant” or the
“Board”). Via Memorandum Opinion and Order dated
June 28, 2016 (ECF Nos. 36 & 37), this Court dismissed
this case with prejudice because this Court does not
have subject matter jurisdiction to review prosecutorial
decisions of the Board's General Counsel. See
Cummings v. Nat'l Labor Relations Bd., No.
RDB-16-0216, 2016 WL 3523573, at *4 (D. Md. June 28, 2016).
pending before this Court are Plaintiff's Motion for
Reconsideration (ECF No. 38), Motion to Vacate and Re-Open
Case (ECF No. 44), Second Motion to Vacate (ECF No. 45), and
Motion and Supporting Memorandum to Stay Pending of the
Court's [sic] Preliminary Injunction Pending Appeal and
Motion for an Immediate Administrative Stay and Motion to
Recuse and Motion for Enlargement of Time Refers to [sic]
Extension of Time to File Complaint (“Motion for
Miscellaneous Relief”) (ECF No. 48). The parties'
submissions have been reviewed, and no hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
stated herein, Plaintiff's Motion for Reconsideration
(ECF No. 38) is DENIED; Plaintiff's Motion to Vacate and
Re-Open Case (ECF No. 44) is DENIED; Plaintiff's Second
Motion to Vacate (ECF No. 45) is DENIED; and Plaintiff's
Motion for Miscellaneous Relief (ECF No. 48) is also DENIED.
Court accepts as true the facts alleged in the
plaintiff's complaint. See Aziz v. Alcolac,
Inc., 658 F.3d 388, 390 (4th Cir. 2011). A pro
se litigant's complaint should not be dismissed
unless it appears beyond doubt that the litigant can prove no
set of facts in support of his claim that would entitle him
to relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978). However, a plaintiff's status as pro
se does not absolve him of the duty to plead adequately.
See Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md.
1999) (citing Anderson v. Univ. of Md. Sch. Of Law,
130 F.R.D. 616, 617 (D. Md. 1989), aff'd, 900
F.2d 249, 1990 WL 41120 (4th Cir. 1990)). The facts of this
case were set forth fully in this Court's Memorandum
Opinion of June 28, 2016. See Cummings, 2016 WL
3523573, at 2-3.
Federal Rules of Civil Procedure do not expressly recognize
motions for “reconsideration.” Instead, Rule
59(e) authorizes a district court to alter, amend, or vacate
a prior judgment, and Rule 60 provides for relief from
judgment. As explained by this Court in Cross v. Fleet
Reserve Ass'n Pension Plan, No. WDQ-05-0001, 2010 WL
3609530, at *2 (D. Md. Sept. 14, 2010):
A party may move to alter or amend a judgment under Rule
59(e), or for relief from a judgment under Rule 60(b).
See Fed. R. Civ. P. 59(e) & 60(b). A motion to
alter or amend filed within 28 days of the judgment is
analyzed under Rule 59(e); if the motion is filed later, Rule
60(b) controls. See Fed. R. Civ. P. 59(e); MLC
Auto., LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th
Cir. 2008); In re Burnley, 988 F.2d 1, 2-3 (4th Cir.
(footnote omitted). Here, Plaintiff has failed to indicate
whether her motions, filed on July 7, 2016, August 26, 2016,
and August 31, 2016, are brought pursuant to Rule 59(e) or
60(b). In light of the liberal construction afforded pro
se pleadings, see Erickson v. Pardus, 551 U.S.
89, 94 (2007), this Court will consider Plaintiff's
arguments under both Rules 59(e) and 60(b).
Rule 59(e) of the Federal Rules of Civil Procedure
United States Court of Appeals for the Fourth Circuit has
repeatedly recognized that a judgment may be amended under
Rule 59(e) in only three 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 prevent manifest injustice. See,
e.g., Gagliano v. Reliance Standard Life Ins.
Co., 547 F.3d 230, 241 n. 8 (4th Cir. 2008). Such
motions do not authorize a “game of hopscotch, ”
in which parties switch from one legal theory to another
“like a bee in search of honey.” Cochran v.
Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003). In
other words, a Rule 59(e) motion “may not be used to
relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to entry of
judgment.” Pac. Ins. Co. v. Am. Nat'l Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting 11
Wright, et al., Federal Practice and Procedure § 2810.1,
at 127-28 (2d ed.1995)). Where a party presents newly
discovered evidence in support of its Rule 59(e) motion, it
“must produce a legitimate justification for not
presenting the evidence during the earlier proceeding.”
Id. (internal citations and quotation marks
omitted). “In general, reconsideration of a judgment
after its entry is an extraordinary remedy which should be
used sparingly.” Id. (internal citations and
quotation marks omitted).
Rule 60(b) of the Federal Rules of Civil Procedure
support a motion under Rule 60(b), the moving party must show
“timeliness, a meritorious defense, a lack of unfair
prejudice to the opposing party, and exceptional
circumstances.” Hale v. Belton Assoc., Inc.,
305 Fed. App'x. 987, 988 (4th Cir. 2009) (quoting
Dowell v. State Farm Fire & Cas. Auto. Ins. Co.,
993 F.2d 46, 48 (4th Cir. 1993)). If these threshold
requirements are met, the moving party must then show: (1)
mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud, misrepresentation or other misconduct
of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; or (6)
any other reason justifying relief from the operation of the
judgment. See Fed. R. Civ. P. 60(b). The moving
party “must clearly establish the grounds therefore to
the satisfaction of the district court, ” and those
grounds “must be clearly substantiated by adequate
proof.” In re Burnley, 988 F.2d 1, 3 (4th Cir.
1992) (citations omitted). “Rule ...