Opinion
01 CV 4852 (SJ).
August 12, 2004
EDDIE NEAL, Jamaica, NY, Pro Se.
JACKSON LEWIS LLP, Woodbury, NY, By: Marc S. Wenger, Esq., Wendy J. Mellk, Esq., Attorneys for Defendant.
MEMORANDUM AND ORDER
On October 29, 2003, this Court granted the motion of Defendant Peerless Electronic for summary judgment and ordered that Plaintiff Eddie Neal's Complaint be dismissed. The judgment dismissing Plaintiff's case was filed and entered by the clerk of the court on November 18, 2003. On December 17, 2003, Plaintiff filed a motion for reconsideration of the Court's October 29, 2003 decision. For the reasons stated herein, Plaintiff's motion is DENIED.
In his motion, Plaintiff requested "reconsideration" on "the ground of new evidence." This Court will consider Plaintiff's motion under Rule 6.3 of the Local Rules of the Eastern District of New York and Rule 60(b) of the Federal Rules of Civil Procedure.
DISCUSSION
I. Local Civil Rule 6.3
Rule 6.3 of the Local Rules of the Eastern District of New York provides that a motion for reconsideration of a final judgment "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 [the movant] believes the court has overlooked." Local Civ. R. 6.3 ("Rule 6.3"). First, Plaintiff's motion is untimely. The Court's order granting summary judgment in Defendant's favor was docketed on November 18, 2003. Under Rule 6.3, Plaintiff was required to serve his motion for reconsideration on Defendants by November 28, 2003. Plaintiff's motion was filed on December 17, 2003 and Defendants were served on December 22, 2003. (See Docket Entry # 37; Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Recons. ("Def.'s Mot.") at 2, n. 2.) Plaintiff's pro se status does not insulate him from complying with the relevant procedural rules. See Leonard v. Lowe's Home Centers, 00 Civ. 9585, 2002 U.S. Dist. Lexis 6249, at *4 (S.D.N.Y. April 15, 2002). Because Plaintiff filed the instant motion more than 10 days after the Order and Judgment were docketed, his motion for reconsideration under Local Rule 6.3 is dismissed.
II. Federal Rule of Civil Procedure 60(b)
Rule 60(b) of the Federal Rules of Civil Procedure states that "the court may relieve a party . . . from a final judgment, order or proceeding for the following reasons: . . . (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); . . . [or] (6) any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b). Rule 60(b) "allows extraordinary judicial relief" and should be "invoked only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations omitted). A Rule 60(b) motion cannot serve as a substitute for an appeal.Competex, S.A. v. Labow, 783 F.2d 333, 335 (2d Cir. 1986);Bennett v. Watson Wyatt Co., 156 F. Supp. 2d 270, 273 (S.D.N.Y. 2001). The burden of proof is on the party seeking the relief. See United States v. Int'l Bhd. of Teamsters, 247 F.3d at 370, 391 (2d Cir. 2001).
"In order to vacate a judgment under Rule 60(b)(2), a movant must: (i) submit newly discovered evidence of facts existing at the time of the original judgment; (ii) show that the moving party was excusably ignorant of the facts at the time of the original judgment, despite using due diligence to learn about those facts; (iii) show that the newly discovered evidence is admissible and probably effective to change the result of the previous ruling; and (iv) show that the newly discovered evidence is not merely cumulative or impeaching of evidence already offered." Ross v. Global Bus. Sch., Inc., 99 Civ. 2826, 2002 U.S. Dist. LEXIS 20941, at *3-4 (S.D.N.Y. Oct. 30, 2002).
Here, Plaintiff has not submitted any new evidence to support relief under Rule 60(b)(2), nor has he set forth any other reason justifying relief from the judgment under Rule 60(b)(6). With the exception of the Notice of Decision issued by the Social Security Administration ("SSA Notice") and copies of three letters written by Plaintiff to former Peerless employees, all the documents Plaintiff submits in support of his motion were previously submitted in opposition to Defendant's motion for summary judgment. Additionally, the arguments Plaintiff sets forth in this motion are the same arguments he initially raised in his opposition to Defendant's summary judgment motion. See Bennett, 156 F. Supp. 2d at 273 (denying a Rule 60(b)(2) motion because plaintiff only raised issues previously decided by the court). Moreover, the SSA Notice and the three letters that Plaintiff submitted with his Motion for Reconsideration are not probative of race discrimination and are inadmissible at this stage in the litigation.
CONCLUSION
• For the foregoing reasons, Plaintiff's motion for reconsideration is DENIED.
SO ORDERED.