United States District Court, D. South Carolina, Columbia Division
Beverley D. Wilson, doing business as Wilson Pediatrics, Inc., Plaintiff,
B&B Properties, Defendant.
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE.
Beverley D. Wilson, doing business as Wilson Pediatrics,
Inc., filed a complaint and motion for temporary restraining
order against Defendant B&B Properties on July 10, 2017.
Plaintiff, proceeding pro se and in forma pauperis, alleged
she entered into a ten-year lease agreement with Defendant
for a medical suite. Plaintiff alleges she was forcibly
evicted on June 30, 2017, after being in arrears on her lease
payments in excess of $22, 000.00. Plaintiff sought to enjoin
Defendant from finalizing the eviction and moved the court to
allow her to resume occupancy under the parties' lease
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
D.S.C., this matter was referred to United States Magistrate
Judge Shiva V. Hodges for pretrial handling. The Magistrate
Judge issued a Report and Recommendation on July 17, 2017,
wherein she recommended the complaint be summarily dismissed
because Plaintiff failed to allege an amount in controversy
in excess of $75, 000.00. See 28 U.S.C. § 1332(a). On
August 4, 2017, Plaintiff filed an amended complaint in which
she asserted causes of action for negligence and intentional
infliction of emotional distress, as well as a claim that
Defendant violated her due process rights. Plaintiff further
claimed damages for lost income so as to meet the amount in
controversy. On August 23, 2017, the court issued an order
concluding that Plaintiff could not establish sufficient
damages to a legal certainty, and that Defendant's
actions were not fairly attributable to the State so as to
state a claim under the due process clause. Accordingly, the
court dismissed the complaint for lack of subject matter
matter now is before the court on Plaintiff's motion for
reconsideration and to recuse, which motion was filed on
September 1, 2017. See Fed.R.Civ.P. 59(e). On September 14,
2017, Plaintiff filed a “Motion and Memorandum for
Recusal” purportedly addressed to the Honorable Terry
L. Wooten, Chief Judge.
Motion for Reconsideration
Rule 59 addresses grounds for new trials, some courts have
reasoned that the concept of a new trial under Rule 59 is
broad enough to include a rehearing of any matter decided by
the court without a jury. 11 Wright & Miller, Federal
Practice & Procedure § 2804. Notwithstanding the
broad nature of Rule 59, motions for reconsideration are
disfavored. They are not a matter of routine practice.
Settino v. City of Chicago, 642 F.Supp. 755, 759
(N.D. Ill. 1986). Several courts have observed that they are
neither expressly cognizable under the Federal Rules of Civil
Procedure nor authorized by the local rules of the district
court. See, e.g., Fisher v. Samuels, 691 F.Supp. 63,
74 (N.D. Ill. 1988).
for reconsideration are inappropriate merely to introduce new
legal theories or new evidence that could have been adduced
during the pendency of the prior motion. Keene Corp. v.
International Fidelity Ins. Co., 561 F.Supp. 656 (N.D.
Ill.), aff'd, 736 F.2d 388 (7th Cir. 1982). The Fourth
Circuit recognizes only three limited grounds for a district
court's grant of a motion under Rule 59(e): (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available earlier; or (3) to
correct a clear error of law or prevent manifest injustice.
Hutchinson v. Staton, 994 F.2d 1076 (4th Cir. 1993).
The Fourth Circuit has emphasized that counsel's mere
disagreement with the court's ruling does not warrant a
Rule 59(e) motion. Id. (citing Atkins v.
Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss.
contends the court erred in focusing on Plaintiff's
claims for negligence, contending that her cause of action
hinges on res ipsa loquitur negligence as establishing
complete liability of Defendant for the collapse of
Plaintiff's computer billing system. South Carolina does
not follow the doctrine of res ipsa loquitur. Watson v.
Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010). Even if
it did, the court would lack subject matter jurisdiction for
the reasons set forth in the court's August 23, 2017
Motions to Recuse
federal judge is obligated to recuse himself if a person with
knowledge of the relevant facts might reasonably question his
impartiality. 28 U.S.C. § 455(a). Disqualification is
required if a reasonable person would have a reasonable basis
for questioning the judge's impartiality, not whether the
judge is in fact impartial. United States v. Cherry,
330 F.3d 658, 665 (4th Cir. 2003) (quoting In
re Beard, 811 F.2d 818, 827 (4th Cir. 1987)).
The proper test is whether another with knowledge of all the
circumstances might reasonably question the judge's
impartiality. Id. (quoting Beard, 811 F.2d
at 827). “[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion. . .
. Almost invariably, they are proper grounds for appeal, not
for recusal.” Liteky v. United States, 510
U.S. 540, 555 (1994).
contends the court has significant conflicts of interest that
prevented the court from ruling fairly in her case. Plaintiff
contends the court abused its judicial power in making
certain rulings in an action Plaintiff filed against
Defendants John T. Moss and Moss and Associates P.A. in the
Court of Common Pleas for Richland County, South Carolina. In
that case, Plaintiff alleged that Defendants provided her
poor legal advice pertaining to a bankruptcy proceeding.
Defendants removed the complaint to this court on December
20, 2013 on the grounds that the complaint constitutes a core
proceeding arising under Title 11 of the United States
Bankruptcy Code. See Wilson v. Moss, 3:13-3567-MBS.
The court subsequently referred the matter to a bankruptcy
judge for disposition. Id., ECF No. 15. Contrary to
Plaintiff's assertions, the court did not try the case,
and the order referring the complaint to the bankruptcy judge
was affirmed by the Court of Appeals for the Fourth Circuit
on January 19, 2016. Id., ECF No. 29. Plaintiff's
claims of bias are without merit.
reasons stated, Plaintiff's motions to reconsider and
recuse (ECF Nos. 23, 24) are denied.