Kirby et al v. South Carolina State Accident Fund

South Carolina District Court
Judge:	Jacquelyn D Austin
Referred:	Shiva V Hodges
Case #:	3:24-cv-03586
Nature of Suit	440 Civil Rights - Other Civil Rights
Cause	42:1983 Civil Rights Act

Case Filed:	Jun 19, 2024
Terminated:	Feb 12, 2025

Last checked: Monday Dec 16, 2024 3:30 AM EST

Defendant South Carolina State Accident Fund	Represented By Lake E Summers Malone Thompson And Summers contact info
Plaintiff Jane Kirby Estate of Jane Kirby 12 Churchill Circle Columbia, SC 29206
Plaintiff Mark Kirby 12 Churchill Circle Columbia, SC 29206

Docket last updated: 70 minutes ago

Tuesday, February 25, 2025
43		43 appeal Record to 4CCA - Initial Electronic Record Tue 02/25 4:15 PM ASSEMBLED INITIAL ELECTRONIC RECORD TRANSMITTED TO FOURTH CIRCUIT COURT OF APPEALS re35 Notice of Appeal, Electronic record successfully transmitted. (ahil, ) Related: [-]
Monday, February 24, 2025
41		41 misc Document Mailed Tue 02/25 8:32 AM ***DOCUMENT MAILED40 Judgment and 39 Order on Motion for Reconsideration placed in U.S. Mail from Columbia Clerks Office to Mark Kirby, 12 Churchill Circle, Columbia, SC, 29206, and Jane Kirby, 12 Churchill Circle, Columbia, SC 29206. (ahil) Related: [-]
40		40 misc Judgment Mon 02/24 3:12 PM AMENDED JUDGMENT dismissing this action without prejudice. (ahil) Related: [-]
39		39 order Order on Motion for Reconsideration Mon 02/24 3:02 PM TEXT ORDER granting in part 34 motion for reconsideration and amending 31 Order accepting the Report and Recommendation. "A motion for reconsideration is generally raised via Rules 59 and 60 of the Federal Rules of Civil Procedure." Brooks v. Zorn, No. 2:22-cv-00739-DCN-MHC, 2024 WL 1571688, at 3 (D.S.C. Apr. 11, 2024). The Fourth Circuit has recognized only three grounds for granting a Rule 59(e) motion: "(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." Pac. Ins. v. Am. Natl Fire Ins., 148 F.3d 396, 403 (4th Cir. 1998). "[T]he rule permits a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings." Id. (internal quotation marks omitted). However, "reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." Id. (internal quotation marks omitted). "Rule 59(e) motions may not be used... to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance. Id. Rule 60(b) allows a party to obtain relief from a judgment if the party demonstrates: "(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..., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on 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." Fed. R. Civ. P. 60(b). "To succeed on a Rule 60(b) motion, a party must demonstrate (1) timeliness, (2) a meritorious defense, (3) a lack of unfair prejudice to the opposing party, and (4) exceptional circumstances." Brooks, 2024 WL 1571688, at 9 (internal quotation marks omitted). "After a party has crossed this initial threshold, he then must satisfy one of the six specific sections of Rule 60(b)." Dowell v. State Farm Fire & Cas. Auto. Ins., 993 F.2d 46, 48 (4th Cir. 1993). Here, Plaintiff's claims were dismissed pursuant to the Court's 31 Order accepting the Report and Recommendation of the Magistrate Judge, which recommended granting Defendant's motion to dismiss and denying Plaintiff's motion to remand because Defendant is entitled to Eleventh Amendment immunity and is not a "person" within the meaning of � 1983. [See Doc. 13.] In his motion for reconsideration, Plaintiff argues that case law he provided to the Court in his sur reply to the Report [Doc. 26] may not have been considered by the Court and asks the Court to reconsider its ruling. [Doc. 34.] Those arguments include a contention that his case should be dismissed without prejudice instead of with prejudice. [Doc. 26.] Because the question of jurisdiction is a threshold issue, see Bradacs v. Haley, 58 F. Supp. 3d 499, 507 (D.S.C. 2014) ("[O]nce the defendant raises the jurisdictional issue of immunity, the court must resolve this threshold matter prior to addressing the merits of the plaintiff's claims."), the Court agrees that dismissal without prejudice is appropriate here because Plaintiff's claims were dismissed first on the basis of Eleventh Amendment immunity. See, e.g., Hong Tang v. Univ. of Balt., 782 F. App'x 254, 255 (4th Cir. 2019) ("[A] dismissal based upon Eleventh Amendment immunity would be without prejudice."). Regarding Plaintiff's additional claims for relief stated in his motion for reconsideration, the Court concludes that Plaintiff is not entitled to relief under Rule 59(e) or 60(b), as the remainder of his motion -- and the sur reply upon which it relies -- merely expresses disagreement with the Court's Order and fails to set forth a sufficient legal or factual basis for the requested relief. Accordingly, the Court's Order accepting the Report and Recommendation [Doc. 31] is hereby amended to dismiss Plaintiff's claims without prejudice. Signed by the Honorable Jacquelyn D. Austin on February 24, 2025.(ahil) Modified on 2/24/2025 to edit text (ahil) Related: [-]
Friday, February 21, 2025
38		38 misc Document Mailed Fri 02/21 9:40 AM ***DOCUMENT MAILED35 Notice of Appeal,37 Transmittal Sheet for Notice of Appeal to USCA, and copy of the public docket sheet placed in U.S. Mail from Columbia Clerk's Office to Mark Kirby, 12 Churchill Circle, Columbia, SC 29206, and Jane Kirby, 12 Churchill Circle, Columbia, SC 29206. (ahil) Modified on 2/21/2025 to edit text (ahil) Related: [-]
37		37 appeal Transmittal Sheet for Notice of Appeal to USCA Fri 02/21 9:26 AM Transmittal Sheet for Notice of Appeal to USCA re35 Notice of Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (ahil) Related: [-]
Thursday, February 20, 2025
36		36 appeal USCA Appeal Fees Fri 02/21 9:15 AM USCA Appeal Fees received $ 605 receipt number 300114694 re35 Notice of Appeal, filed by Jane Kirby, Mark Kirby. (ahil) Related: [-]
35		35 appeal Notice of Appeal Fri 02/21 9:14 AM NOTICE OF APPEAL as to31 Order Ruling on Report and Recommendation and32 Judgment by Jane Kirby, Mark Kirby. Filing fee $ 605. The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov(ahil) Related: [-]
		Att: 1 Cover Letter,
		Att: 2 Envelope
Tuesday, February 18, 2025
34		34 motion Reconsideration Tue 02/18 2:56 PM MOTION for Reconsideration re32 Judgment and31 Order Ruling on Report and Recommendation by Jane Kirby, Mark Kirby. Response to Motion due by 3/4/2025. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.No proposed order.(ahil) Related: [-]
		Att: 1 Back of envelope
Wednesday, February 12, 2025
33		33 misc Document Mailed Wed 02/12 10:02 AM ***DOCUMENT MAILED32 Judgment and31 Order Ruling on Report and Recommendation placed in U.S. Mail from Columbia Clerk's Office to Jane Kirby, 12 Churchill Circle, Columbia, SC 29206 and Mark Kirby, 12 Churchill Circle, Columbia, SC 29206. (ahil) Related: [-]
32		32 misc Judgment Wed 02/12 9:56 AM JUDGMENT dismissing this action with prejudice. (ahil) Related: [-]
Tuesday, February 11, 2025
31		31 4 pgs order Order Ruling on Report and Recommendation Wed 02/12 9:38 AM ORDER RULING ON REPORT AND RECOMMENDATION The Court accepts the Report and Recommendation of the Magistrate Judge and incorporates it by reference. Accordingly, Defendant's motion to dismiss [Doc. 4] is GRANTED and Plaintiff's motion to remand [Doc. 7] is DENIED, and this action is dismissed with prejudice. Plaintiff's motion to reinstate case number 3:23-cv-00659-JDA [Doc. 23] is also DENIED. Signed by the Honorable Jacquelyn D. Austin on February 11, 2025. (ahil) (Main Document 31 replaced on 2/12/2025) (ahil). Modified on 2/12/2025 to replace document and to edit edit docket text (ahil) Related: [-]
Monday, September 09, 2024
28		28 respm Reply to Response to Motion Mon 09/09 4:25 PM REPLY to Response to Motion re:23 MOTION Reinstatement of case 3:23-cv-659-JDA. Response filed by Mark Kirby.(apsn) Related: [-]
		Att: 1 Envelope
Wednesday, September 04, 2024
27		27 respm Response in Opposition to Motion Wed 09/04 7:30 PM RESPONSE in Opposition re23 MOTION Reinstatement of case 3:23-cv-659-JDA Response filed by South Carolina State Accident Fund.Reply to Response to Motion due by 9/11/2024 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Summers, Lake) Related: [-]
Friday, August 30, 2024
26		26 respm Sur Reply Brief Tue 09/03 9:02 AM SUR REPLY to REPLY to Response to Motion re:13 REPORT AND RECOMMENDATION. Response filed by Mark Kirby.(apsn) Related: [-]
		Att: 1 Envelope
Monday, August 26, 2024
24		24 misc Reply Not to a Motion Mon 08/26 4:16 PM REPLY by South Carolina State Accident Fund to16 Objection to Report and Recommendation . (Summers, Lake) Related: [-]
Wednesday, August 21, 2024
23		23 motion Miscellaneous Relief Wed 08/21 2:33 PM MOTION for Reinstatement of Case 3:23-cv-659-JDA by Mark Kirby. Response to Motion due by 9/4/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.No proposed order.(ahil, ) Related: [-]
		Att: 1 Envelope
Thursday, August 15, 2024
22		22 misc Document Mailed Thu 08/15 2:57 PM ***DOCUMENT MAILED 21 Order placed in U.S. Mail from Columbia Clerks Office to Mark Kirby, 12 Churchill Circle, Columbia, SC 29206 and Jane Kirby, 12 Churchill Circle, Columbia, SC 29206. (ahil) Related: [-]
21		21 order Order Thu 08/15 2:55 PM TEXT ORDER finding as moot 20 Plaintiff's response to Defendant's motion for extension of time. Defendant's motion has already been granted and its reply to Plaintiff's objection to the Report is due August 26, 2024. Signed by the Honorable Jacquelyn D. Austin on August 15, 2024. (ahil) Related: [-]
19		19 misc Document Mailed Thu 08/15 2:44 PM ***DOCUMENT MAILED 18 Order placed in U.S. Mail from Columbia Clerks Office to Mark Kirby, 12 Churchill Circle, Columbia, SC 29206 and Jane Kirby, 12 Churchill Circle, Columbia, SC 29206. (ahil) Related: [-]
Wednesday, August 14, 2024
20		20 respm Response in Opposition to Motion Thu 08/15 2:50 PM RESPONSE in Opposition re17 MOTION for Extension of Time to File Response/Reply to Plaintiff's Objections to the Report and Recommendation issued by the U.S. Magistrate Judge Response filed by Mark Kirby.Reply to Response to Motion due by 8/21/2024 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6.(ahil) Related: [-]
		Att: 1 Envelope
Monday, August 12, 2024
18		18 order Order ~Util - Terminate Motions ~Util - Set Motion and R&R Deadlines/Hearings Mon 08/12 9:24 AM TEXT ORDER granting 17 motion for extension of time. Defendant's reply to Plaintiff's objections to the Report and Recommendation is now due August 26, 2024. Signed by the Honorable Jacquelyn D. Austin on August 12, 2024. (ahil) Related: [-]
Sunday, August 11, 2024
17		17 motion Extension of Time to File Response/Reply Sun 08/11 3:37 PM MOTION for Extension of Time to File Response/Reply to Plaintiff's Objections to the Report and Recommendation issued by the U.S. Magistrate Judge by South Carolina State Accident Fund. Response to Motion due by 8/26/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Summers, Lake) Related: [-]
Monday, July 29, 2024
16		16 respoth Objection to Report and Recommendation Mon 07/29 3:47 PM OBJECTION to13 Report and Recommendation by Mark Kirby and Jane Kirby. Reply to Objections due by 8/12/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6.. (cpri) Related: [-]
		Att: 1 Envelope
Tuesday, July 23, 2024
15		15 misc Document Mailed Tue 07/23 3:25 PM ***DOCUMENTS MAILED:13 REPORT AND RECOMMENDATION, 14 Transfer of Case Management, placed in U.S. Mail from Columbia Clerks Office to Mark Kirby 12 Churchill Circle Columbia, SC 29206. (cpri) Related: [-]
14		14 misc Transfer of Case Management Tue 07/23 3:23 PM ***CASE MANAGEMENT TRANSFERRED to civil case manager for Judge Jacquelyn D. Austin. Any future filings must be sent to the Clerk's Office at the following address: 901 Richland Street Columbia, SC 29201. (cpri) Related: [-]
13		13 motion Report and Recommendation Tue 07/23 3:19 PM REPORT AND RECOMMENDATION, recommending the district judge grant Defendant's motion to dismiss at ECF No. 4 and deny Plaintiff's motion to remand at ECF No. 7 . Objections to R&R due by 8/6/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Shiva V. Hodges on 07/23/2024. (cpri) Related: [-]
Monday, July 22, 2024
12		12 respm Reply to Response to Motion Tue 07/23 7:39 AM REPLY to Response to Motion re7 MOTION to Remand. Response filed by Mark Kirby.(apsn) Related: [-]
		Att: 1 Envelope
Monday, July 15, 2024
11		11 respm Reply to Response to Motion Mon 07/15 8:11 PM REPLY to Response to Motion re7 MOTION to Remand Response filed by South Carolina State Accident Fund. (Summers, Lake) Related: [-]
Monday, July 08, 2024
10		10 misc Document Mailed Mon 07/08 10:18 AM ***DOCUMENT MAILED: 9 Text Order on Motion for Extension of Time to File Response/Reply, placed in U.S. Mail from Columbia Clerks Office to Mark Kirby and Estate of Jane Kirby at 12 Churchill Circle Columbia, SC 29206. (cpri) Related: [-]
9		9 order Order on Motion for Extension of Time to File Response/Reply Mon 07/08 9:27 AM TEXT ORDER granting 8 Motion for Extension of Time to File Response/Reply as to 7 MOTION to Remand. Defendant's response to motion to remand and reply to motion to dismiss due by 7/15/2024. Signed by Magistrate Judge Shiva V. Hodges on 7/8/24. (vhor) Related: [-]
Friday, July 05, 2024
8		8 motion Extension of Time to File Response/Reply Fri 07/05 5:32 PM MOTION for Extension of Time to File Response/Reply as to7 MOTION to Remand by South Carolina State Accident Fund. Response to Motion due by 7/19/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.Motions referred to Shiva V Hodges.(Summers, Lake) Related: [-]
Thursday, June 27, 2024
7		7 respm Response in Opposition to Motion Thu 06/27 4:29 PM MOTION to Remand and RESPONSE in Opposition re4 MOTION to Dismiss by Jane Kirby, Mark Kirby. Response to Motion to Remand due by 7/11/2024. Reply to Response to Motion to Dismiss due by 7/8/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.. Motions referred to Shiva V. Hodges. Filing corrected for event type. (cpri) Related: [-]
		Att: 1 Envelope
Friday, June 21, 2024
6		6 misc Document Mailed Fri 06/21 2:43 PM ***DOCUMENT MAILED:5 Roseboro Order, placed in U.S. Mail from Columbia Clerks Office to Mark Kirby 12 Churchill Circle Columbia, SC 29206 and to Jane Kirby 12 Churchill Circle Columbia, SC 29206. (cpri) Related: [-]
5		5 order Roseboro Order Fri 06/21 2:41 PM ROSEBORO ORDER directing clerk to forward summary judgment explanation to the opposing party and directing that party to respond in 31 days. Response due to 4 MOTION to Dismiss. Response to Motion due by 7/22/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Shiva V. Hodges on 06/21/2024. (cpri) Related: [-]
Wednesday, June 19, 2024
4		4 motion Dismiss Thu 06/20 3:50 PM MOTION to Dismiss by South Carolina State Accident Fund. Response to Motion due by 7/3/2024. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.. Motions referred to Shiva V. Hodges. (cpri) Related: [-]
		Att: 1 Memo in Support
3		3 discov Local Rule 26.01 Answers to Interrogatories Thu 06/20 3:46 PM Local Rule 26.01 Answers to Interrogatories by South Carolina State Accident Fund. (cpri) Related: [-]
1		1 cmp Notice of Removal Thu 06/20 3:40 PM NOTICE OF REMOVAL from Lexington County Court of Common Pleas, case number 2024CP3202127, filed by South Carolina State Accident Fund. (Filing fee $ 405 receipt number ASCDC-11832329).. (cpri) Related: [-]
		Att: 1 State Court Documents - Complaint,
		Att: 2 State Court Documents - Notice to Court of Common Pleas of the Defendant's Filing of Notice of Removal,
		Att: 3 Exhibit - Notice to Plaintiff of Defendant's Filing of Notice of Removal

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