Thomas v. Acosta

Filing 58

ORDER denying 56 Notice and Motion for Relief from Judgment pursuant to Federal Rules of Civil Procedure 60(b) filed by Ann Thomas. Signed by Judge J. P. Boulee on 1/11/21. (ddm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANN THOMAS,
Plaintiff,
v.
EUGENE SCALIA, Secretary, United
States Department of Labor,

CIVIL ACTION NO.
1:18-cv-01719-JPB

Defendant.
ORDER
This matter is before the Court on Plaintiff Ann Thomas’ (“Plaintiff”) Notice
and Motion for Relief of Judgment (“Motion”) (ECF No. 56). Having reviewed
and fully considered the Motion, the Court finds as follows:
Thomas filed a complaint against Eugene Scalia, Secretary, United States
Department of Labor (“Defendant”), alleging employment discrimination on the
basis of her gender in violation of Title VII of the Civil Rights Act of 1964. In a
nutshell, Plaintiff’s claims center on allegations that she was improperly denied a
promotion.
On March 4, 2020, the Court entered an Order granting summary judgment
to Defendant and dismissing the case. Judgment in favor of Defendant was entered
the same day.

In the instant Motion, Plaintiff seeks relief from the judgment under Federal
Rule of Civil Procedure 60(b) on the grounds of newly discovered evidence and
fraud. Plaintiff avers in an affidavit attached to the Motion that she discovered on
March 2, 2020, that a Department employee played a role as a “Subject Matter
Expert” in the hiring process and concludes that “[b]ased on these evident
misrepresentations and omissions, [she] was hardly on notice of the agency Subject
Matter Expert’s significant role in the hiring process.” Plaintiff then cites case law
for the proposition that an employer’s false explanation for an employment action
can support a finding of unlawful pretext.
Defendant did not respond to the Motion, which means that it is unopposed.
See N.D. Ga. Civ. R. 7.1(B) (“Failure to file a response shall indicate that there is
no opposition to the motion.”). However, “the granting of a motion [under Local
Rule 7.1(B)] is not automatic and rather lies within the discretion of the district
judge.” Magluta v. Samples, 162 F.3d 662, 665 (11th Cir. 1998). See also
Dockens v. Dekalb Cnty. Sch. Sys., No. 1:07-cv-1345-CAP/AJB, 2010 WL
11505568, at *3 (N.D. Ga. July 19, 2010) (exercising “discretion [to] consider the
merits of [the] [d]efendant’s motion” even though the plaintiff did not respond to
the motion). As such, courts will exercise their “discretion to waive a local rule
requirement” when “the interests of justice and efficient disposition” of the matter

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requires it. Puhy v. Delta Air Lines, Inc., 833 F. Supp. 1577, 1578 n.1 (N.D. Ga.
1993). Some courts also consider the merits of an unopposed motion in light of the
policy of determining matters on the merits. See Green v. HSBC Mortg. Servs.,
No. 1:13-CV-02891-RWS, 2014 WL 221210, at *2 (N.D. Ga. Jan. 21, 2014). In
the interest of the efficient disposal of this closed case and the policy of deciding
matters on the merits, the Court will exercise its discretion to consider the
substance of Plaintiff’s Motion.
Because “[f]inality is a virtue in the law,” a motion for relief from a
judgment under Rule 60(b)(2) “is an extraordinary motion and the requirements of
the rule must be strictly met.” Waddell v. Hendry Cnty. Sheriff’s Office, 329 F.3d
1300, 1309 (11th Cir. 2003).
For the court to grant relief based upon newly discovered evidence
under Rule 60(b)(2), a movant must meet a five-part test: (1) the
evidence must be newly discovered since the trial; (2) due diligence
on the part of the movant to discover the new evidence must be
shown; (3) the evidence must not be merely cumulative or
impeaching; (4) the evidence must be material; and (5) the evidence
must be such that a new trial would probably produce a new result.
Id. “To obtain relief . . . based upon fraud under Rule 60(b)(3), the moving party
must prove by clear and convincing evidence that the adverse party obtained the
verdict through fraud, misrepresentations, or other misconduct.” Id. “The moving

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party must also demonstrate that the conduct prevented them from fully presenting
[their] case.” Id.
Here, Plaintiff does not carry her burden to show that relief from the
judgment is warranted. With respect to the claim of newly discovered evidence,
Plaintiff fails to make the threshold showing that the evidence is indeed new or that
it could not have been discovered during the course of the litigation. She likewise
fails to show that the evidence is material or that it would produce a new result.
Even if, assuming for the sake of argument, the purportedly new evidence could be
construed as being offered for impeachment purposes, impeachment evidence is
not a sufficient basis for relief under Rule 60(b)(2). See id.
With respect to her claim of fraud, Plaintiff’s unsupported assertion of
“evident misrepresentations and omissions” does not provide the requisite “clear
and convincing evidence” that Defendant obtained summary judgment through
fraud or that Defendant’s conduct prevented her from fully presenting her case.
Without these showings, there is no basis upon which to grant relief to Plaintiff. 1
Accordingly, Plaintiff’s Motion (ECF No. 56) is DENIED.
It is Plaintiff’s responsibility (and not the Court’s) to make arguments in support
of her motion. See Clark v. City of Atlanta, 544 F. App’x 848, 855 (11th Cir.
2013). See also Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319
(11th Cir. 2012). (“A passing reference to an issue in a brief is not enough, and the
failure to make arguments and cite authorities in support of an issue waives it.”).

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SO ORDERED this 11th day of January, 2021.

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