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noting that, although a pro se plaintiff's pleadings should be read liberally, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law"
Summary of this case from Bennett v. Care Corr. Sol. Med. ContracterOpinion
00 Civ. 9585 (RWS).
April 12, 2002.
RAYMOND A. LEONARD, Plaintiff Pro Se, Poughkeepsie, NY.
LITTLER MENDELSON, Attorney for Defendant, New York, NY., By: REGINA DEL PRIORE, ESQ., RICH WEINERMAN, ESQ., Of Counsel.
OPINION
Plaintiff Raymond A. Leonard ("Leonard"), a pro se litigant, has moved pursuant to Local Rule for the Southern District of New York 6.3 and Rules 59 and 60 of the Federal Rules of Civil Procedure for this Court to reconsider its order dismissing Leonard's complaint, alleging discrimination and retaliation, against defendant Lowe's Home Centers ("Lowe's").
For the following reasons, Leonard's motion is denied.
Facts
Leonard commenced this action in October 2000, by filing his complaint. The complaint alleged that Lowe's discriminated against Leonard based on his gender, national origin, age and disability, and that Lowe's retaliated against him. The complaint was filed on December 18, 2000, and Leonard was granted an additional 60 days from April 18, 2001, to serve the summons and complaint on Lowe's. Lowe's acknowledged receipt by mail of the summons and complaint on July 11, 2001.
Lowe's filed a motion to dismiss the complaint in its entirety on August 14, 2001. Pursuant to Fed.R.Civ.P. 6(e) and Local Civil Rule 6.1(b) for the Southern District of New York, Leonard had until August 30, 2001 to serve any opposing affidavits. Leonard did not file opposition papers by that date, or any time thereafter.
A court-ordered pretrial hearing was scheduled for September 11, 2001. The hearing was cancelled due to the attack on the World Trade Center.
On September 26, 2001, Lowe's was notified that the motion to dismiss was scheduled to be heard "on the papers" on October 3, 2001 and that Leonard had not timely filed his opposition papers. Lowe's documented the conversation and sent a copy to Leonard and the Court. After receiving this notification, Leonard did not submit opposition papers or seek an extension of time to do so.
On November 30, 2001, Leonard wrote to the Court to determine when the Court would reschedule a new hearing on the motion to dismiss.
By letter dated December 4, 2001, the Court advised Leonard that the motion to dismiss was handled on submission and was sub judice. Leonard received the letter on December 13, 2001.
On December 6, 2001, the Court granted Lowe's motion to dismiss because there was no opposition. Lowe's submitted an order of dismissal on December 18, 2001.
By letter dated December 15, 2001, Leonard filed the motion to reconsider. The Court received the letter on December 19, 2001.
On December 28, 2001, the Court issued a judgment granting Lowe's motion to dismiss "for the reasons stated in the Court's Memo endorsed Order dated 12/6/01." That order was entered on the docket on January 4, 2002.
Lowe's filed an opposition to Leonard's motion to consider on January 30, 2002. The motion was fully briefed and heard on submission on February 13, 2002.
Discussion
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit rights by virtue of lack of legal training. Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983). I n d e e d, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se statute "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth, 710 F.2d at 95 (quotations omitted).
I. Reconsideration of Issues of Fact and Law
A motion for reconsideration "shall be served within ten days after the docketing of the court's determination of the original motion" and shall set forth "the matters or controlling decisions which counsel believes the court has overlooked." Local Civ.R. 6.3. ("Rule 6.3"). The Order was docketed on December 10, 2001. The Court received Leonard's motion on December 19, 2001. It is not clear whether the motion was served within the ten day window.
Even if Leonard's motion had been timely served, he fails to identify any material issues of fact or law overlooked by this Court that might reasonably be expected to alter the Court's decision. Dotson v. Griesa, 2001 WL 812227, at *1 (S.D.N.Y. March 22, 2001); ATT Corp. v. Community Network Servs., Inc., 2000 WL 1174992, at *1 (S.D.N.Y. Aug. 18, 2000) (quoting Interactive Gift Express, Inc. v. Compuserve, 1999 WL 49360, at *1 (S.D.N.Y. Feb. 2, 1999).
Rule 6.3 is intended to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). The parties may not present new facts or theories at this stage. Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001); Familienstifung v. Askin, 137 F. Supp.2d 438, 442 (S.D.N Y 2001).
Rule 6.3 must be narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues, and may not be employed as a substitute for appealing a final judgment. Shamis v. Ambassador Factors, 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The decision to grant or deny the motion rests in the discretion of the district court. ATT Corp, 2000 WL 1174992, at *1.
Leonard alleges neither that the Court's decision overlooked controlling precedent nor missed important factual matters. Leonard contends that the disruption caused by the September 11, 2001 attacks prevented Leonard's timely response. Leonard's response was due on August 30, 2001. Leonard should have contacted the Court at that time to request an extension. He was also notified by an October 4, 2001 letter that his opposition papers had not been received. Again, Leonard did not seek at that time an extension from this Court.
Leonard also submitted a brief on various employment discrimination cases. However, he offered no controlling case law that the Court overlooked and that could reasonably alter the Court's opinion.
II. Fed.R.Civ.P. 60
Rule 60 provides in relevant part that "on motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud . . . misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment."
Properly applied, Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments. House v. Secretary of Health and Human Services, 688 F.2d 7, 9 (2d Cir. 1982). "Since 60(b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also United States v. Bank of New York, 14 F.3d 756, 759 (2d Cir. 1994); Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990). A motion seeking such relief is "addressed to the sound discretion of the district court." Id.
Pro se litigants "should not be impaired by the harsh application of technical rules." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Yet they are not excused from producing "highly convincing" evidence in support of motions to vacate a final judgment. Gwynn v. Deleo, 1991 WL 125185, at *3-*4 (S.D.N.Y. July 3, 1991). A court should find that the movant possesses a meritorious claim in order to grant relief. Cobos v. Adelphi Univ., 179 F.R.D. 381, 385 (E.D.N.Y. 1998) (citing cases); Babigian v. Association of the Bar of the City of New York, 144 F.R.D. 30, 33 (S.D.N.Y. 1992).
Leonard did not specify under which subsections of Rule 60(b) he sought relief. This Court will assume that he intended the only potentially applicable provisions, subsections (1), (4) and (6).
A. Rule 60(b)(1): Mistake, inadvertence, surprise, or excusable neglect
Excusable neglect encompasses "inadvertence, carelessness, and mistake," and may be found where a party's failure to comply with filing deadlines is attributable to negligence. Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (citing Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 388 (1993)). Excusable neglect will not be found, however, where there has been abuse by a party. Id. In determining whether excusable neglect exists, a court should take account of all relevant circumstances surrounding the party's omission. Id. Those circumstances include prejudice to the adversary, the length of the delay, the reason for the error, the potential impact on the judicial proceedings, whether it was within the "reasonable control of the movant," and whether the movant acted in good faith. Pioneer, 507 U.S. at 395.
As discussed above, Leonard claims that the events of September 11, 2001, prevented his response to the motion to dismiss.
In Ishay v. City of New York, 178 F. Supp.2d 314 (E.D.N.Y. 2001), defense counsel's inability to access their office, which was in close proximity to the World Trade Center, for one month following the attacks on September 11, 2001, constituted good cause to extend the time for the defendants to file a notice of appeal of judgment. Id. at 317. Although the circumstances did not fit into the previous, narrow factual scenarios of Supreme Court precedent, the court recognized that "the events of September 11, 2001 were 'unique' in every sense of the word, and clearly beyond any court could previously have anticipated." Id.
The events of September 11, 2001, certainly could constitute reason for excusable neglect, given a scenario such as the defense counsel in Ishay faced. However, Leonard fails to explain why his circumstances following the attack should do so. In addition, Leonard was capable of pursuing some aspects of this lawsuit less than a week after September 11, 2001. In a letter dated September 17, 2001, Leonard requested discovery responses from Lowe's. He could just as easily have sent a letter to this Court seeking an extension.
Leonard may have had difficulty in telephoning the Court due to interruptions in service caused by the events of September 11, 2001. The mail continued to get through, however. In any case, Leonard does not aver that he attempted either to telephone or to mail such a request to the Court.
In any case, opposition papers were due prior to the attack, on August 30, 2001. Leonard did not seek an extension at any point in the process, and still has failed to explain why he did not timely file, or timely seek an extension. Such failure is inexcusable. Fetik v. New York Law School, 1999 WL 459805 at *4 n. 4 (S.D.N.Y. June 29, 1999) (finding no excusable neglect under Rule 60(b)(1) where plaintiff did not explain why her excuse for not filing opposition papers left her unable to request a further extension to oppose the motion to dismiss); Long v. Carberry, 151 F.R.D. at 243 (S.D.N.Y. 1993) (finding no excusable neglect or manifest error under Rule 60(b)(1) because "if Plaintiff required additional time to respond to defendants' motion to dismiss, he should have employed the proper procedures to file an application for an extension of time. . . .").
B. Rule 60(b)(4): judgment is void
A judgment is void under Rule 60(b)(4) where the court deciding the issue did not have jurisdiction over the person or the subject matter, or has "acted in a manner inconsistent with due process of law." Beller Keller v. Tyler, 120 F.3d 21, 23 (2d Cir. 1997) (internal quotation omitted).
This Circuit has established that district courts must inform a pro se litigant of the results of not responding to a motion for summary judgment or a motion to dismiss that is being considered as a motion for summary judgment. E.g., Irby v. New York City Transit Authority, 262 F.3d 412, 413-14 (2d Cir. 2001). Because Leonard is appealing a motion to dismiss, which was not treated as a summary judgment motion, these precedents do not apply.
In addition, having reviewed the complaint and the motion to dismiss, there is no basis on which this claim could have survived.
C. Rule 60(b)(6): Any other reason justifying relief
Presumably the reason here is also that the events of September 11, 2001, prevented Leonard from responding. This argument is unavailable, however, as Rule 60(b)(6) is only applicable where no other subsection is available. Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986); Delacruz v. Stern, 166 F.3d 1200 (2d Cir. 1998) (unpublished). Leonard's mistake falls under Rule 60(b)(1) and thus cannot also fit within this subsection.
Conclusion
For the foregoing reasons, Leonard's motion to reconsider is denied.
It is so ordered.