United States District Court, E.D. Pennsylvania
March 29, 2004.
BOBBIE LEE SIMS, JR., Plaintiff,
DONALD T. VAUGHN, et al., Defendants
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court are two motions styled, Motion for
Reconsideration and Motion to Correct the Records, filed by pro
se Plaintiff Bobbie Lee Sims, Jr. ("Plaintiff"). On November 21,
2003, Plaintiff filed a Complaint, which was dismissed by this Court's
December 9, 2003 Order directing the Clerk of Court to statistically
close this case for Plaintiff's failure either to pay the $150.00 filing
fee to commence this civil action or to submit a motion to proceed
in forma pauperis.*fn1 On December 30, 2003, Plaintiff filed a
motion requesting that this Court reconsider its December 9, 2003 Order,
disputing the fact of nonpayment.*fn2
Plaintiff's motion for reconsideration, however, fails to
overcome the jurisdictional hurdle set forth in the Federal and
Local Rules of Civil Procedure requiring that motions for reconsideration
be served and filed within 10 days of the entry of judgment. Fed.R. Civ.
P. 59(e) ("Any motion to alter or amend a judgment shall be filed no
later than 10 days after entry of the judgment."); E.D. Pa. R. 7.1(g)
("Motions for reconsideration . . . shall be served and filed within
ten (10) days after the entry of the judgment, order, or decree
concerned."). As Plaintiff's Motion for Reconsideration, filed on
December 30, 2003, was filed over ten days after the entry of this
Court's December 9, 2003 Order, Plaintiff's Motion for reconsideration
was untimely under the 10-day period prescribed by Rule 59(e), as
calculated pursuant to Rule 6(a), of the Federal Rules of Civil
Plaintiff's Motion for Reconsideration (Doc. No. 5) is therefore
DISMISSED AS UNTIMELY.
As this case is closed as of December 9, 2003, Plaintiff's Motion to
Correct the Records (Doc. Nos. 8, 9), which also addresses the absence of
a filing fee payment, is DISMISSED AS MOOT.
Since this Court did not dismiss this suit with prejudice on December
9, 2003, we strongly advise Plaintiff to file a new complaint with the
appropriate filing fee attached, so that his claims may be properly
before the Court. Any statute of limitations applicable to Plaintiff's
claims in this matter SHALL BE TOLLED from the date Plaintiff
filed his Complaint, November 21, 2003, until this date.