United States District Court, D. Nebraska
PATRICIA J. RECKLEY, Plaintiff,
NE HEALTH & HUMAN SERVICES, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
has filed a “motion for reconsideration” of the
judgment of dismissal that was entered on May 1, 2017.
Because Plaintiff has not indicated which provision of the
Federal Rules of Civil Procedure she is relying upon in
making the motion, it may be treated either as a Rule 59(e)
motion to alter or amend judgment or as a Rule 60(b) motion
for relief from judgment. See Sanders v. Clemco Indus.,
862 F.2d 161, 168 (8th Cir.1988). But whichever rule is
applied, the motion fails.
59(e) motions serve the limited function of correcting
manifest errors of law or fact or to present newly discovered
evidence. United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006). Such motions
cannot be used to introduce new evidence, tender new legal
theories, or raise arguments which could have been offered or
raised prior to entry of judgment. Id.
Rule 60(b), a court may grant a party relief from a judgment
for the following reasons:
(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 (whether previously called intrinsic or extrinsic),
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;
(6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b). Relief under the catchall
provision, Rule 60(b)(6), is available only in
“extraordinary circumstances.” Buck v.
Davis, 137 S.Ct. 759, 777-78 (2017) (quoting
Gonzalezv. Crosby, 545 U.S. 524 (2005)).
prevail on a Rule 59(e) or Rule 60(b)(2) motion on the basis
of newly discovered evidence, the movant must show that (1)
the evidence was discovered after trial; (2) the movant
exercised due diligence to discover the evidence before the
end of trial; (3) the evidence is material and not merely
cumulative or impeaching; and (4) a new trial considering the
evidence would probably produce a different result.
Metro. St. Louis Sewer Dist., 440 F.3d at 933.
to Plaintiff's motion for reconsideration is an EEOC
“right-to-sue” letter and mailing envelope which
Plaintiff states she recently received. This notice, which is
dated May 2, 2017, does not appear to relate to the instant
case, but is offered for the limited purpose of showing that
regular mail was used by the EEOC. The court accepts this
fact, but, for reasons which will be discussed below, finds
that it does not change the result. Indeed, the court entered
judgment with the understanding that the EEOC's
right-to-sue letter in this case was sent to Plaintiff by
regular first class mail, as she had previously
claims she “could very well have been mistaken about
receiving the right to sue notice on the [sic] Oct
19, 2016, ” as alleged both in her Complaint and in her
Amended Complaint, “and may have actually received it
on Oct 21, 2016” (Filing No. 17 at CM/ECF p.
1). However, Plaintiff offers no evidence to support
this claim of a possible mistake in her pleadings.
Considering also that Plaintiff has previously represented to
the court that she “documented the date she received
[the right-to-sue letter] because it ...