Adams v. The City of Montgomery - Maintenance Department
SUPPLEMENTAL OPINION AND ORDER directing, as to this court's opinion and order 73 , that: (1) plf Willie Adams's 109 motion to reconsider and vacate pursuant to FRCP 59 is denied as untimely; (2) plf Adams's 109 motion to reconsid er and vacate under FRCP 60(b) is granted as to the retaliation claim arising out of the May 28 Employee Counseling Record and is denied in all other respects. Signed by Honorable Judge Myron H. Thompson on 5/30/12. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
THE CITY OF MONTGOMERY,
CIVIL ACTION NO.
SUPPLEMENTAL OPINION AND ORDER
Following the revelation of previously undisclosed
evidence, Adams v. City of Montgomery, civil action no.
2:10cv924-MHT (M.D. Ala. May 29, 2012) (Thompson, J.)
reconsideration of this court’s order granting summary
judgment in favor of defendant City of Montgomery in
Adams v. City of Montgomery, 2012 WL 1414979 (M.D.
Ala. Apr. 24, 2012) (Thompson, J.).
For the reasons that
follow, the reconsideration motion will be granted in
part and denied in part.
Adams seeks relief under Federal Rules of Civil
Procedure 59 and 60.
Under Rule 59(e), a motion to alter
or amend a judgment must be filed no later than 28 days
summary-judgment order on April 24, 2012.
As such, Adams
had until May 22 to file a timely Rule 59 motion.
however, filed his Rule 59 motion two days late, on May
Rule 60 has a more flexible timeliness requirement.
A movant seeking relief pursuant to Rule 60(b)(2) must
file a motion within a “reasonable time” and “no more
than one year after the entry of the judgment.”
Civ. P. 60(c)(1).
Here, Adams promptly filed his Rule
60(b) motion after the discovery revelations came to
light the weekend prior to trial (May 4th to 6th).
Adams’s motion will be considered under Rule 60(b)’s
heightened standards for reconsideration.
See Jones v.
Southern Pan Services, 450 Fed. App’x 860, 863 (11th Cir.
2012) (per curiam) (noting that an “untimely Rule 59
motion to vacate is properly treated as a Rule 60(b)
RULE 60(b) STANDARD
“A movant seeking relief under Rule 60(b)(2) based on
newly discovered evidence requires all of the following:
(1) the evidence must be newly discovered since the
exercised due diligence in discovering the new evidence;
impeaching; (4) the evidence must be material; and (5)
the new evidence must be such that it would produce a
different outcome in the underlying action.”
AT&T Corp., 239 Fed. App’x 481, 483 (11th Cir. 2007) (per
A Rule 60(b)(2) motion is “an extraordinary
motion and the requirements of the rule must be strictly
Waddell v. Hendry County Sheriff’s Office, 329
F.3d 1300, 1309 (11th Cir. 2003). “Similarly, a Rule
60(b)(6) motion, by which a court has discretion to grant
[relief] for any other reason justifying relief from the
extraordinary circumstances.” Toole v. Baxter Healthcare
Corp., 235 F.3d 1307, 1316 (11th Cir. 2000) (internal
quotation marks omitted).
Adams seeks reconsideration of two parts of this
court’s summary-judgment order.
First, Adams contends
that the discovery revelations related to the timing of
supervisor James Ivey’s notification of Adams’s internalaffairs complaint creates a genuine dispute of material
fact as to whether the Employee Counseling Record was
On this point, Adams has met his burden at
each stage of the Rule 60(b)(2) inquiry.
Some of the “Lilley documents” were disclosed after
the court granted summary judgment on this claim; indeed,
these Lilley documents came to light the weekend prior to
the scheduled trial date.
And, while Adams may not have
exercised due diligence as to all the evidence that was
improperly withheld, the existence of investigator Walter
Lilley, Jr., was hidden from Adams’s attorneys throughout
As such, Adams’s attorneys had no reasonable
“Mickey” McInnish had information regarding the internalaffairs investigation.
cumulative, and would have produced a different outcome
at the summary-judgment stage.
Stated succinctly, Adams
was transferred to the ditch-crew on May 28, 2008, and
the counseling record signed by Ivey was dated for that
Adams says that he was given the May 28
counseling record on May 29, at the same time as a letter
Although the court initially concluded
that this timeline precluded a retaliation claim related
to the counseling record, the Lilley documents raise the
specter that Ivey may have been notified about Adams’s
interviewed by internal-affairs investigator Lilley on
May 29 and may have scheduled the meeting the prior day.
As such, the Lilley documents create a genuine dispute
over whether the May 28 counseling record was written or
internal-affairs complaint and, therefore, may have been
(To be clear: there is no genuine dispute
of material fact related to the ditch-crew transfer.
precipitated his internal-affairs complaint.
summary judgment on his race-discrimination claim as it
relates to the Service Maintenance Worker III position.
concerning this claim and simply seeks to reopen an
already resolved issue.
Adams’s invocation of the city’s
issue–-is too speculative to overcome the high hurdle
erected by Rule 60(b).
opinion and order, Adams v. City of Montgomery, 2012 WL
1414979 (M.D. Ala. Apr. 24, 2012) (Doc. No. 73), that:
(1) Plaintiff Willie Adams’s motion to reconsider and
vacate pursuant to Federal Rule of Civil Procedure 59
(Doc. No. 109) is denied as untimely.
(2) Plaintiff Adams’s motion to reconsider and vacate
under Federal Rule of Civil Procedure 60(b) (Doc. No.
109) is granted as to the retaliation claim arising out
of the May 28 Employee Counseling Record and is denied in
all other respects.
DONE, this the 30th day of May, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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