United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
before the court is plaintiff's motion for leave to file
late objections. (ECF No. 20). However, on November 9, 2018,
a judgment order dismissing this matter with prejudice was
entered. Therefore, the court has construed plaintiff's
motion as one seeking relief under Federal Rule of Civil
Procedure 59(e) or 60(b).
appeals court has noted, “the Federal Rules of Civil
Procedure allow a litigant subject to an adverse judgment to
file either a motion to alter or amend the judgment pursuant
to Rule 59(e) or a motion seeking relief from the judgment
pursuant to Rule 60(b). Although the two rules appear
similar, they are in fact quite distinct.” Robinson
v. Wix Filtration Corp, LLC, 599 F.3d 403, 411 (4th Cir.
2010). “A Rule 59(e) motion may only be granted in
three situations: `(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.'” Mayfield v.
National Ass'n for Stock Car Auto Racing,
Inc., 674 F.3d 369, 378 (4th Cir. 2012) (quoting
Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir.
2007)). “It is an extraordinary remedy that should be
applied sparingly.” Id.
60(b) of the Federal Rules of Civil procedure provides in
On motion and just terms, the court may relieve a party . . .
from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based upon an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
from final judgment under Rule 60(b) is an extraordinary
remedy that “is only to be invoked upon a showing of
exceptional circumstances.” Pressley Ridge Schools
v. Lawton, 180 F.R.D. 306, 308 (S.D. W.Va. 1998).
Dispositions of Rule 60(b) motions are reviewed for abuse of
discretion. See id.
seeks to reopen the time for filing objections arguing that
“during the period to object he was transferred between
prison[s] and lacked accessed [sic] to a library or material
need[ed] to object.” ECF No. 20 at p.1. However, when
the Proposed Findings and Recommendation was filed, the BOP
Inmate Locator indicated that plaintiff was incarcerated at
FCI Gilmer where he remains incarcerated today. See
ECF No. 20 at p.3.
these circumstances, the court cannot conclude that Rule
59(e) relief is necessary to prevent manifest
injustice.Nor can the court conclude that plaintiff
has demonstrated the type of excusable neglect that would
entitle him to relief under Federal Rule of Civil Procedure
60(b)(1). Finally, plaintiff has not shown that he is
entitled to relief under Rule 60(b)(6).For all these
reasons, plaintiff's motion is
Clerk is directed to send copies of this Memorandum Opinion
and Order to counsel of record and unrepresented parties.
 A motion to alter or amend a judgment
pursuant to Federal Rule of Civil Procedure 59(e) “must
be filed no later than 28 days after the entry of the
judgment.” Plaintiff's filing is postmarked
December 7, 2018, which would fall within the 28-day
 Plaintiff does not argue that there
has been an intervening change of controlling law, that new
evidence has become available, or that clear ...