United States District Court, E.D. Virginia, Richmond Division
SUNDARI K. PRASAD, Plaintiff,
FACEBOOK, et al., Defendants.
HANNAH LAUCK UNITED STATES DISTRICT JUDGE
K. Prasad, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The matter is before the Court for review
of Prasad's Petition for Rehearing (ECF No. 13). For the
reasons set forth below, the Petition for Rehearing (ECF No.
13) will be DENIED.
Memorandum Order entered on February 15, 2018, the Court
directed Prasad to file a particularized complaint within
fourteen (14) days of the date of entry thereof. (ECF No. 9.)
Almost two months elapsed and Prasad failed to file a
particularized complaint. Accordingly, by Memorandum Opinion
and Order entered on April 13, 2018, the Court dismissed the
action without prejudice. (ECF No. 10, 11.)
April 19, 2018, the Court received Prasad's
Particularized Complaint. (ECF No. 12.) The Particularized
Complaint was not accompanied by any explanation as to why
Prasad failed to submit it in a timely manner.
21, 2018, the Court received Prasad's Petition for
The Amended Complaint
Court will construe the filing of the Particularized
Complaint, as a motion under Federal Rule of Civil Procedure
59(e). See MLC Auto., LLC v. Town of S. Pines, 532
F.3d 269, 277-78 (4th Cir. 2008) (stating that filings made
within twenty-eight days after the entry of judgment are
construed as Rule 59(e) motions (citing Dove v.
CODESCO, 569 F.2d 807, 809 (4th Cir. 1978))).
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pac. Ins. Co. v.
Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) (citation omitted) (internal quotation marks omitted).
The United States Court of Appeals for the Fourth Circuit
recognizes three grounds for relief under Rule 59(e):
"(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." Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser Corp. v.
Koppers Co., 771 F.Supp. 1406, 1419 (D. Md. 1991);
Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625,
626 (S.D.Miss. 1990)). Prasad does not explicitly address any
of the above recognized grounds for relief in her
Particularized Complaint. Nor does the record readily suggest
that Prasad's dilatory filing of the Particularized
Complaint satisfies any of these grounds. As the matter was
dismissed without prejudice, Prasad remains free to refile
the action. Accordingly, the Court will DENY Prasad any
relief under Fed.R.Civ.P. 59(e) in conjunction with her
filing of the Particularized Complaint.
Petition for Rehearing
Prasad filed her Petition for Rehearing after the
twenty-eight-day period for filing a motion pursuant to
Federal Rule of Civil Procedure 59, the Court reviews this
submission as a motion pursuant to Federal Rule of Civil
Procedure 60(b). See In re Burnley, 988 F.2d 1, 2-3
(4th Cir. 1992). Federal Rule of Civil Procedure 60(b) allows
a court to "relieve a party ... from a final judgment,
order, or proceeding." Fed.R.Civ.P. 60(b). It is an
extraordinary remedy requiring a showing of exceptional
circumstances. May field v. Nat'l Ass 'n for
Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir.
2012) (citing Ackermann v. United States, 340 U.S.
193, 202 (1950)). The party seeking relief under Rule 60(b)
"must make a threshold showing of timeliness, 'a
meritorious claim or defense,' and lack of unfair
prejudice to the opposing party." Coleman v.
Jabe, 633 Fed.Appx. 119, 120 (4th Cir. 2016) (quoting
Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir.
2011)). A party must also demonstrate "exceptional
circumstances." Dowell v. State Farm Fire & Cas.
Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (quoting
Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984)).
After a party satisfies this threshold showing, "he [or
she] then must satisfy one of the six specific sections of
Rule 60(b)." Id. (quoting Werner, 731
F.2d at 207).
Prasad fails to identify any exceptional circumstances that
would warrant setting aside the April 13, 2018 Memorandum
Opinion and Order. Indeed, in her Petition for Rehearing she
fails to offer any explanation as to why she failed to submit
a particularized complaint in a timely manner. Accordingly,
the Petition for Rehearing (ECF No. 13) will be DENIED.
appropriate Order will accompany ...