Plasman v. Decca Furniture (USA), Inc., 12 CVS 2832
| Decision Date | 26 October 2015 |
| Docket Number | 12 CVS 2832 |
| Citation | 2015 NCBC 97 |
| Court | Superior Court of North Carolina |
| Parties | CHRISTIAN G. PLASMAN, in his individual capacity and derivatively for the benefit of, on behalf of and right of nominal party BOLIER & COMPANY, LLC, Plaintiff, v. DECCA FURNITURE (USA), INC., DECCA CONTRACT FURNITURE, LLC, RICHARD HERBST, WAI THENG TIN, TSANG C. HUNG, DECCA FURNITURE, LTD., DECCA HOSPITALITY FURNISHINGS, LLC, DONGGUAN DECCA FURNITURE CO. LTD., DARREN HUDGINS, DECCA HOME, LLC, and ELAN BY DECCA, LLC, Defendants, and BOLIER & COMPANY, LLC, Nominal Defendant, v. CHRISTIAN J. PLASMAN a/k/a BARRETT PLASMAN, Third-Party Defendant. |
Law Offices of Matthew K. Rogers, PLLC, by Matthew K. Rogers for Plaintiff Christian G. Plasman and Third-Party Defendant Christian J. Plasman a/k/a Barrett Plasman.
McGuireWoods LLP by Robert A. Muckenfuss, Elizabeth Zwickert Timmermans, Andrew D. Atkins, and Jodie H. Lawson, for Defendants Decca Furniture (USA), Inc., Decca Contract Furniture, LLC, Richard Herbst, Wai Theng Tin, Tsang C. Hung, Decca Furniture, Ltd., Decca Hospitality Furnishings, LLC, Dongguan Decca Furniture Co. Ltd., Darren Hudgins, Decca Home, LLC, Elan by Decca, LLC, and Nominal Defendant Bolier & Company, LLC.
{1} THIS MATTER is before the Court upon Plaintiff Christian G. Plasman and Third-Party Defendant Christian J. Plasman a/k/a Barrett Plasman's (collectively, the "Plasmans") Motion to Clarify Order Dated August 25, 2015 and for Judicial Settlement for the Record on Appeal ("Motion" or "Motion to Clarify") in the above-captioned matter. The Motion was filed on September 21, 2015. The Court held a hearing on the Motion on October 16, 2015, at which all parties were represented by counsel. For the reasons discussed below, the Motion is DENIED.
{2} The factual and procedural background of this case is lengthy, and the relevant background details are recited in Bolier & Co., LLC v. Decca Furniture (USA), Inc., 2015 NCBC LEXIS 55 (the "May 26 Order") and in Plasman v. Decca Furniture (USA), Inc., 2015 NCBC LEXIS 90 (N.C. Super. Ct. Oct. 2, 2015) (the "Amended Order") ( Plasman v. Decca Furniture (USA), Inc., 2015 NCBC LEXIS 86 (N.C. Super. Ct. Aug. 25, 2015) (the "August 25 Order") to correct a citation error). The Court, therefore, elects to recite only those facts and procedural history that are necessary to resolve the issues raised in the Motion to Clarify.
{3} The Court resolved seven pending motions in the May 26 Order. Of particular relevance here, the Court specifically denied in the May 26 Order the Plasmans' motion to amend ("Motion to Amend") a February 27, 2013 preliminary injunction order (the "P.I. Order") entered in the United States District Court for the Western District of North Carolina (the "Federal Court") while this case was pending in the Federal Court.[1] The Plasmans filed a Notice of Appeal of the May 26 Order on June 25, 2015.
{4} On August 25, 2015, this Court entered the August 25 Order, whereby the Court concluded that N.C. Gen. Stat. § 1-294 did not operate to stay the case and ordered that the action would proceed in this Court during the pendency of the Plasmans' appeal. The Court entered the Amended Order on October 2, 2015 to correct a technical citation error in the August 25 Order. Except as otherwise noted, hereafter the "August 25 Order" shall mean both the August 25 Order and the Amended Order.
{5} On September 21, 2015, the Plasmans filed the present Motion "pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure and Rule 11(c) of the North Carolina Rules of Appellate Procedure." (Pl.'s Mot. Clarify 1.) The Motion and its supporting brief are jumbled in their requests for relief. Based upon the papers and the arguments of counsel, the Court concludes that the Motion seeks: (i) reconsideration of the August 25 Order under N.C. R. Civ. P. 59 and/or 60 in light of the Plasmans' charge that the Court failed to consider or appreciate their Supplemental Motion for Preliminary Injunction Conditions and Plaintiff Safeguard Conditions ("Supplemental Motion") filed March 13, 2013 in the Federal Court, (ii) reconsideration of the August 25 Order under N.C. R. Civ. P. 59 and/or 60 in light of the Plasmans' charge that the Court erred in its "substantial rights" analysis, and (iii) judicial settlement of the Record on Appeal pursuant to Rule 11(c) of the North Carolina Rules of Appellate Procedure.
{6} The Plasmans seek relief under Rules 59 and/or 60 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 7A-45.3 requires the Court to issue a written opinion in connection with all orders granting or denying relief under Rules 59 and 60.
{7} First, the Court concludes that the Plasmans have not sought appropriate relief under Rule 60. Sink v. Easter, 288 N.C. 183, 196, 217 S.E.2d 532, 540 (1975) (emphasis in original). The August 25 Order holding that this action would continue during the pendency of the appeal is not a final judgment because it did not dispose of the case. See Pentecostal Pilgrims & Strangers Corp. v. Connor, 202 N.C.App. 128, 132, 688 S.E.2d 81, 83–84 (2010) (quoting Veazey v. Durham, 231 N.C. 357, 361, 57 S.E.2d 377, 381 (1950)) ("A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in a trial court.").
{8} Next, a party may move to alter or amend a judgment under Rule 59 within 10 days after the entry of judgment. N.C. R. Civ. P. 59(e). The Plasmans filed their Motion to Clarify on September 21, 2015, 27 days after the entry of the Court's August 25 Order. At the hearing, counsel for the Plasmans contended for the first time that the admittedly late filing could be salvaged under Rule 59 because the filing of the Court's Amended Order on October 2, 2015 created a new filing period. Assuming without deciding that the Amended Order renewed the 10-day period under Rule 59(e), and notwithstanding the fact that the Plasmans did not refile the Motion in the 10-day period following the filing of the Amended Order, the Court will treat the Motion as a timely prayer for relief under Rule 59.
{9} The Court has other concerns about whether the Plasmans have made a valid request under Rule 59.[2] However, in light of the Court's resolution of the requested relief, the Court assumes, without deciding, that the Motion is sufficient under Rule 59. "The determination of whether to grant or deny a motion pursuant to either Rule 59(a) or Rule 59(e) is addressed to the sound discretion of the trial court." Young v. Lica, 156 N.C.App. 301, 304, 576 S.E.2d 421, 423 (2003) (citing Hamlin v. Austin, 49 N.C.App. 196, 197, 270 S.E.2d 558, 558 (1980)).
{10} "[A] motion made pursuant to N.C. Gen. Stat. § 1A-1, Rule 59, 'cannot be used as a means to reargue matters already argued or to put forward arguments which were not made but could have been made.'" Batlle v. Sabates, 198 N.C.App. 407, 414, 681 S.E.2d 788, 794 (2009) (quoting Smith v. Johnson, 125 N.C.App. 603, 606, 481 S.E.2d 415, 417 (1997)).
{11} The Plasmans' Motion challenges this Court's August 25 Order, arguing that the Court should not have considered the timeliness of any Federal Court appeal and, in doing so, failed to consider the Supplemental Motion filed in the Federal Court. Specifically, the Motion suggests that a more in-depth consideration of the Supplemental Motion would have caused the Court to conclude that, because the Plasmans' right to appeal the P.I. Order never ripened or expired, the Plasmans' substantial rights were impacted by the Court's denial of the Motion to Amend.
{12} The Court concludes that the Plasmans' Motion is without merit. As an initial matter, it appears that the Plasmans misunderstand the relevance of the Court's conclusions concerning the timeliness of any Federal Court appeal in the August 25 Order. The Court concluded in the August 25 Order that the Plasmans' appeal of the Court's May 26 Order denying the Plasmans' Motion to Amend the P.I. Order did not stay the action in this Court. Plasman, 2015 NCBC LEXIS 90, at *13–14. In reaching this conclusion, the Court determined that the May 26 Order did not adversely impact the Plasmans' substantial rights and that the appeal of the May 26 Order was an untimely attempt to appeal the P.I. Order. Id.
{13} Although the Plasmans argue that the Court erred in considering the Plasmans' failure to appeal in Federal Court in the August 25 Order, (Pl.'s Mem. Supp. Mot. Clarify 2–3), their Motion to Amend predominately contended that the Federal Court improperly entered the P.I. Order and, in its particulars, sought dissolution of the P.I. Order as improvidently granted. The Court concluded that to the extent the Motion to Amend was a collateral attack on the two-year old P.I. Order, that request was untimely because any challenge to the issuance of the Federal Court's P.I. Order should have been made by appeal to the United States Court of Appeals for the Fourth Circuit, which the Plasmans acknowledge they did not seek. See Plasman, 2015 NCBC LEXIS 90, at *6.
{14} Because the Court concluded that the Plasmans had missed their opportunity to challenge the entry of the P.I. Order in Federal Court, the Court further concluded that the denial of the Motion to Amend the P.I. Order left in place the status quo after entry of the P.I. Order and thus did not affect the Plasmans' substantial rights. See id. at *13–14 (...
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