IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

Civil Action No.: 7:19-cv-00029-FL

CHRISTOPHER T. MANGUM, individually,

and d/b/a WRIGHTSVILLE BEACH JET SKI
RENTALS; WRIGHTSVILLE BEACH JET SKI
RENTALS, INC.; M. CARSON SEITER,
individually and d/b/a CAROLINA COAST
WATERSPORTS; CAROLINA COAST
WATERSPORTS, LLC,
MOTION FOR RECONSIDERATION;
MOTION TO ALTER, AMEND, SET ASIDE;
Plaintiffs,
MOTION TO AMEND;
v.
and
MOTION FOR EXTENSION OF TIME &
TOWN OF WRIGHTSVILLE BEACH, a North
MODIFIED SCHEDULING ORDER
Carolina Corporation and Body Politic;
TIMOTHY OWENS, individually and in his
Fed. R. Civ. Pro. 59(e), 60, 15(a), & 6(b)
official capacity as Wrightsville Beach Town
Manager; and JOHN WESSELL, individually and
in his official capacity as Wrightsville Beach
Town Attorney,

Defendants.

Plaintiffs, by and through undersigned counsel, and in accordance with Local Rule 7.1,

respectfully move the Court pursuant to Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure

for reconsideration, alteration or amendment, and relief from the Court’s Order of Dismissal entered on

November 20, 2019 (DE #37); for further relief under Rule 60 setting aside and declaring void ab initio the

state-court consent judgment; for leave to amend and supplement their complaint pursuant to Fed. R.

Civ. P. Rule 15 and Local Rule 15.1; and, pursuant to Fed. R. Civ. P. 6(b)(B) and Local Rule 6.1 , for an

extension of time modifying the scheduling order to accommodate any relief granted by the Court as a

result of these Motions.

In support of these Motions, Plaintiffs rely upon and incorporate the accompanying

Memorandum and Affidavit setting forth:

Case 7:19-cv-00029-FL Document 38 Filed 12/21/19 Page 1 of 4

 RULE 59(e) MOTION FOR RECONSIDERATION

1. Reconsideration is necessary to correct clearly erroneous misapprehensions of law and

fact concerning Plaintiffs’ allegations, claims, meritorious defenses, and requested relief.

2. Reconsideration is necessary to accommodate an intervening change in controlling law,

insofar as it applies to the legal standards applied by the Court as justification for dismissal of Plaintiffs’

claims based on res judicata. See Interstal Inc. v. Hamilton, 2019 N.C. LEXIS 1062 (Nov. 01, 2019).

3. Reconsideration is necessary to prevent manifest injustice.

4. The Court patently misunderstood the relevance of Plaintiffs’ assertions of a meritorious

defense to res judicata.

5. The Court failed to take into account relevant factors intended to guide its discretion.

6. Plaintiffs have demonstrated and can further demonstrate that genuine issues of material

fact are in dispute.

7. Plaintiffs claims for declaratory relief are not moot, are not barred by res judicata, and are

raised not only for prospective relief to an active and ongoing constitutional controversy, but also as

meritorious arguments against the Defendants’ affirmative res judicata defense based on a presumption

of the state court consent judgment’s validity which has been clearly and unambiguously disputed and

challenged by Plaintiffs in this action. With these material facts in dispute, and because a ruling by the

Court on Plaintiffs’ claims for declaratory relief would be determinative as to the consent judgment’s

validity, it is improper for the Court to presume and apply any alleged preclusive effects without first

rendering judgments on the merits those claims.

1. Plaintiffs also move for relief under Fed. R. Civ. Pro. Rule 60(b)(1) on the grounds that

they were unjustly surprised by the unilateral adoption and application of res judicata principles set forth

in the Court’s Order where none of the authorities and cases cited in support of the Court’s findings and

conclusions were presented in either of the Defendants’ motions or supporting memorandums, and as

such Plaintiffs were deprived a fair opportunity to respond prior to having their federal claims dismissed

with prejudice in violation of their right to due process.

Case 7:19-cv-00029-FL Document 38 Filed 12/21/19 Page 2 of 4

 2. The burden of proving res judicata as a valid affirmative defense falls on the Defendants,

not the Plaintiffs. Where a proper res judicata analysis determining the preclusive effect of a state court

judgment applies alleged facts, viewed in the non-movant’s most favorable light, to the law of the state in

which the judgment was entered, and where Defendants’ motions and memorandums fail to cite any

relevant or applicable North Carolina case law 1 or authorities in support thereof, Plaintiffs undoubtedly

suffer undue harm and manifest injustice by the Court’s unilateral use and application of North Carolina

cases, authorities, and arguments not previously presented which result in a wholesale dismissal of

Plaintiffs’ federal claims with prejudice.

RULE 60 MOTION TO ALTER, AMEND, SET ASIDE, and DECLARE VOID AB INITIO

1. The underlying judgment upon which the Defendants rely in asserting their affirmative

defenses is void. Rule 60(b)(4).

2. The underlying judgment upon which the Defendants rely in asserting their affirmative

defenses was procured by fraud, misrepresentation, and misconduct. Rule 60(b)(3).

RULE 15(a) MOTION TO AMEND

1. Leave to amend a complaint should be freely granted as justice so requires.

2. Plaintiffs seek leave to amend and supplement their complaint with additional facts

supporting their claims and which give rise to new causes of action

RULE 6(b) MOTION FOR EXTENSION OF TIME & MODIFIED SCHEDULING ORDER

1. Plaintiffs request for an extension of time modifying the scheduling order is based on

good faith, excusable neglect, and uncontrollable circumstances.

1
The totality of case law and authorities cited in the Motions and Memorandums filed by Defendants in
support of their res judicata defense did not include any North Carolina opinions, and only two federal
appellate cases, one of which is not binding precedent on this Court: Nash County Bd. of Education v.
Biltmore Co., 640 F.2d 484 (4th Cir. 1981) (res judicata applied where federal antitrust Plaintiffs previously
sued under the state antitrust statute which offered the same right to recover treble damages) and Latham
v. Wells Fargo Bank, N.A., 896 F.2d 979 (5th Cir. 1990).

Case 7:19-cv-00029-FL Document 38 Filed 12/21/19 Page 3 of 4

Respectfully submitted this the 20th day of December, 2019.

/s/ Gregory A. Buscemi

GREGORY A. BUSCEMI
N.C. State Bar No.: 52054
Attorney for Plaintiffs
BUSCEMI LAW, PLLC
530 Causeway Dr., Ste. F-1
Wrightsville Beach, NC 28480
T: (910) 477-3742
F: (910) 208-0373
E: gbuscemi@wilmlaw.com

Case 7:19-cv-00029-FL Document 38 Filed 12/21/19 Page 4 of 4