United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
has filed what the court construes as a “motion for
reconsideration” (Filing No. 13) of the judgment of
dismissal that was entered on February 6, 2018. Because
Plaintiff has not indicated which provision of the Federal
Rules of Civil Procedure he 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
(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 Gonzalez v.
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 are two
documents from the Nebraska Equal Opportunity Commission
(“NEOC”) explaining the NEOC's “Methods
of Alternative Dispute Resolution” and providing notice
of the NEOC's process and duties to charging parties.
(Filing No. 13 at CM/ECF pp.2-3.) Both documents are
signed by Plaintiff and dated July 14, 2016, the same date
which appears on Plaintiff's Charge of Discrimination
filed with the NEOC and Equal Employment Opportunity
Commission (“EEOC”). (See Filing No. 1 at
CM/ECF pp.6-7.) In his motion, Plaintiff asks if these
documents “still apply, ” as the court
understands, to Plaintiff's obligation to provide proof
that he timely filed his Complaint within 90 days of
receiving a right-to-sue notice from the NEOC and/or EEOC.
Upon review, the documents provided do not apply and do not
change the result in this case.
court explained in its initial review of Plaintiff's
Complaint, Plaintiff was required to file suit within 90 days
of receiving notice from the NEOC and/or EEOC that their
investigation had concluded and they had made a determination
of no reasonable cause. (See Filing No. 6 at
CM/ECF pp.3-4); see also Littell v. Aid
Ass'n for Lutherans, 62 F.3d 257, 259 (8th Cir.
1995) (failure to file suit within ninety days after the
receipt of a notice from the EEOC renders a plaintiff's
action untimely). Plaintiff has not filed a copy of any
right-to-sue notice nor has he ever alleged that he filed
this action within 90 days of receiving a right-to-sue notice
from the NEOC and/or EEOC with respect to his charge of
discrimination. The documents attached to Plaintiff's
current motion are merely copies of notices provided to
Plaintiff when he filed his charge of discrimination. They do
not indicate when the NEOC and/or EEOC completed its
investigation and gave Plaintiff notice of his right to
pursue his discrimination claims by filing suit. Thus, these
documents do not provide the information necessary to
determine whether Plaintiff's action was timely.
court required Plaintiff to provide proof that he had filed
suit within 90 days of receiving a right-to-sue notice or to
at least allege the reasons why he did not file within the
90-day period in order to determine whether Plaintiff's
action was timely. Though Plaintiff asserts he is “not
a lawyer” and “expected to be told what was [sic]
the different steps” (Filing No. 13), the
court's direction was clear and he is presumed to know
the law. See Baker v. Norris, 321 F.3d 769,
772 (8th Cir. 2003). Plaintiff failed to provide the
necessary information, and the court dismissed the Complaint
as a result. Plaintiff has not demonstrated any legitimate
reason for altering, amending, or otherwise obtaining any
relief from the court's judgment of dismissal. He has not
shown that the dismissal was the result of manifest error of
law or fact, nor has he produced any newly discovered
evidence that might lead to a different result. No
“extraordinary circumstances” are presented.
Thus, Plaintiff has failed to establish sufficient grounds
for setting aside the court's judgment under Rule
59(e) or Rule 60(b).
THEREFORE ORDERED that Plaintiff's motion for
reconsideration (Filing No. 13) is denied.
 A Rule 59(e) motion “must be
filed no later than 28 days after the entry of
judgment.” Fed.R.Civ.P. 59(e). A Rule 60(b)
motion “must be made within a reasonable time.”
Fed.R.Civ.P. 60(c)(1). ...