United States District Court, D. South Carolina, Florence Division
Henry Brewington and Virginia Brewington, individually and d/b/a Levelz Bar & Grill, Plaintiffs,
Melvina Devine Davis and City of Myrtle Beach, Defendants.
Bryan Harwell, United States District Judge.
Henry and Virginia Brewington filed this action in state
court alleging their nightclub, Levelz Bar & Grill
(“Levelz”), was unconstitutionally targeted by
the City of Myrtle Beach (“the City”) and others
in a campaign designed to shut down undesirable businesses in
the Myrtle Beach area. The City removed the action to this
Court, and on January 8, 2019, the Court entered a summary
judgment order dismissing the federal claims in this case,
declining to exercise supplemental jurisdiction, and
remanding all state law claims to state court. See
ECF No. 104. The Clerk entered the judgment on January 9,
2019, and thirteen days later (January 22), Plaintiffs filed
a motion entitled “Motion to Alter or Amend a Judgment
or, in the Alternative, Relief from Judgment.”
See ECF No. 108. The City filed a response in
opposition. See ECF No. 109. The Court denies
Plaintiffs' motion for the reasons explained
the Court notes Plaintiffs invoke both Fed.R.Civ.P. 59(e)
and Fed. R. Civ. P. 60(b)(2) in their motion.
See ECF No. 108 at p. 1. The Fourth Circuit has
repeatedly and “squarely held . . . that a motion filed
under both Rule 59(e) and Rule 60(b) should be analyzed
only under Rule 59(e) if it was filed no later than
 days after entry of the adverse judgment and seeks to
correct that judgment.” Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403, 412 & n.11 (4th Cir. 2010)
(emphasis added) (citing Small v. Hunt, 98 F.3d 789,
797 (4th Cir. 1996)); see Dove v. CODESCO, 569 F.2d
807, 809 (4th Cir. 1978) (“[I]f a post-judgment motion
is filed within  days of the entry of judgment and calls
into question the correctness of that judgment it should be
treated as a motion under Rule 59(e), however it may be
formally styled.” (emphasis added)); see,
e.g., Abdul-Sabur v. Virginia, 746 Fed.Appx.
266, 266 n.* (4th Cir. 2018) (“Abdul-Sabur's motion
seeking reconsideration of the dismissal order was filed
within the 28-day period for filing a motion to alter or
amend judgment under Fed.R.Civ.P. 59(e) and is properly
treated as such.”). Accordingly, the Court will analyze
Plaintiffs' motion under Rule 59(e).
59(e) permits a party to file a motion to alter or amend a
judgment within twenty-eight days after entry of the
judgment. Fed.R.Civ.P. 59(e). “Rule 59(e) motions can
be successful in only 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.” United
States ex rel. Carter v. Halliburton Co., 866 F.3d 199,
210 (4th Cir. 2017). A party may not use a Rule 59(e) motion
to make arguments it could have made before judgment was
entered. Pac. Ins. Co. v. Am. Nat. Fire Ins. Co.,
148 F.3d 396, 403 (4th Cir. 1998). “[M]ere disagreement
does not support a Rule 59(e) motion, ” Hutchinson
v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993), and
“reconsideration of a judgment after its entry is an
extraordinary remedy which should be used sparingly.”
Pac. Ins. Co., 148 F.3d at 403. “[I]f a party
relies on newly discovered evidence in its Rule 59(e) motion,
the party must produce a legitimate justification for not
presenting the evidence during the earlier proceeding.”
Id. (internal quotation marks omitted).
their motion, Plaintiffs assert the Court erred in not
allowing them more “time to provide the Court with
additional evidence, ” namely a “new Affidavit
provided by Natalie Trota-Litsey” and attached to
Plaintiffs' motion. ECF No. 108 at p. 2; see ECF
No. 108-1 (affidavit). They contend that “[t]his Court
failed to rule on [their] motion for an additional time to
provide this information, ” which allegedly
“constitutes strong evidence of tortious interference
with a contract.” ECF No. 108 at p. 2. Notably,
Plaintiffs “concede that the acknowledgment
by these Plaintiffs that their business was a
nuisance is a complication to . . .
proceeding on all causes of action except for tortious
interference with a contract.” Id.
(emphases added) Thus, Plaintiffs appear to seek
reconsideration regarding only the disposition of their state
law claim for tortious interference with a contract.
Court first notes it did in fact rule on Plaintiffs'
prior motion seeking additional time to conduct discovery,
contrary to their contention above. In a lengthy footnote,
the Court denied Plaintiffs' “Motion to Reopen
Discovery for a Period of Sixty Days” because they
failed to show good cause justifying modification of the
discovery deadline. See ECF No. 104 at pp. 18-19
n.22. Importantly, the Court explained that even if good
cause did exist, any additional discovery would not affect
disposition of Plaintiffs' federal/§ 1983
claims because “‘the continued maintenance
of an illegal use or a public nuisance is not a protected
property interest' and does not establish any
‘constitutional claims to support a § 1983
action.'” Id. at p. 19 n.22 (quoting
Trobough v. City of Martinsburg, 120 F.3d 262, 1997
WL 425688, at *3 (4th Cir. 1997) (collecting cases)). For this
same reason, the “new evidence” of the affidavit
from Natalie Trota-Litsey (ECF No. 108-1) does not affect the
Court's prior ruling regarding Plaintiffs'
federal/§ 1983 claims.
the Court notes Plaintiffs appear to have a misunderstanding
of what claims were adjudicated on the merits by the Court.
The Court only considered the merits of Plaintiffs'
federal-not state-claims by concluding (1) they
could not pursue a § 1983 action because they had
effectively admitted to maintaining a public nuisance by
entering into the consent order; (2) their individual due
process, taking, and equal protection claims failed for
additional reasons; and (3) they could not pursue a
Monellclaim without a predicate
constitutional violation. See ECF No. 104 at pp.
12-18. Having reached these conclusions and having dismissed
only the federal/§ 1983 claims on the merits,
the Court declined to exercise supplemental jurisdiction over
the state law claims. See Id. at p. 18 (citing 28
U.S.C. § 1367(c)(3) and United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966)). In short, the Court
did not reach the merits of Plaintiffs' state law claim
for tortious interference with a contract-instead, that
claim was remanded to state court for further
have not presented a basis for the Court to alter or amend
the judgment pursuant to Rule 59(e), and therefore the Court
will deny their motion.
foregoing reasons, the Court DENIES
Plaintiffs' motion [ECF No. 108].
IS SO ORDERED.