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Reckley v. Ne Health & Human Services

United States District Court, D. Nebraska

May 11, 2017

PATRICIA J. RECKLEY, Plaintiff,
v.
NE HEALTH & HUMAN SERVICES, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff 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.[1] See Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988). But whichever rule is applied, the motion fails.

         Rule 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.

         Under 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; or
(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)).

         To 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.

         Attached 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 represented.[2]

         Plaintiff 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 ‚Äúdocumented the date she received [the right-to-sue letter] because it ...


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