Reckley v. Gallup
MEMORANDUM AND ORDER that Plaintiff's motion for reconsideration (Filing No. 20 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICIA J. RECKLEY,
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
(1) mistake, inadvertence, surprise, or excusable neglect;
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). Plaintiff’s motion was filed on May 8, 2017.
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under
(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
In response to the court’s order on initial review of the original Complaint, and
in support of her Amended Complaint, Plaintiff filed a memorandum brief in which
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. 20 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 was sent by regular first class mail” (Filing No. 14 at CM/ECF p. 2),
there is no basis for setting aside the judgment under Rule 60(b)(1).
Plaintiff argues that any doubt concerning the date of receipt should be resolved
in her favor because the EEOC sent the right-to-sue letter by regular mail, which did
not require a signed and dated receipt as proof of delivery. There is no merit to this
argument, which the court will consider under Rule 60(b)(6) and Rule 59(e).3
A right-to-sue letter is presumed to have been received within 3 days after its
issuance by the EEOC. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
148 n. 1 (1984) (per curiam) (relying on 3-day mailing rule in former Rule 6(e) of the
she stated: “Plaintiff received the EEOC right-to-sue notice from the St. Louis district
office Oct. 19, 2016. Plaintiff has the original envelope in which the notice was sent
and documented the date she received it because it was sent as regular first class mail
and not as registered mail as required by [Neb. Rev. Stat. §] 48-11 20.01 which would
yield a signature on the date it was retrieved. Plaintiff was not able to retrieve the
notice earlier because she was out of state and did not return until then (Plaintiff can
provide dated travel receipts as verification).... The court correctly notes that the
90-day period ended on Jan. 17, 2017, the day she mailed the document to the court.”
(Filing No. 14 at CM/ECF p. 2).
Because the court dismissed this action after reviewing Plaintiff’s Amended
Complaint pursuant to 28 U.S.C. § 1915(e)(2), Plaintiff was not required or requested
to make any argument prior to the entry of judgment. As discussed above, however,
Plaintiff did submit a brief in which she claimed with certainty that she received the
right-to-sue letter on October 19, 2016.
Federal Rules of Civil Procedure, which now appears in Rule 6(d)); Bell v. B & W Co.,
No. 807CV148, 2007 WL 2011234, at *1 (D. Neb. July 6, 2007); Kovtun v. Trotter
Floor Cleaning Services, Inc., No. 4:08CV3179, 2009 WL 113879, at *2 (D. Neb.
Jan. 16, 2009). In this case, the right-to-sue letter was issued by the EEOC on
Thursday, October 6, 2016, and presumably was received by Plaintiff on or before
Tuesday, October 11, 2016 (3 days later, excluding Sunday and Columbus Day).
Although this is a rebuttable presumption, the October 19, 2016 date of receipt that
Plaintiff alleged in her pleadings was still more than 90 days prior to the date suit was
filed (January 19, 2017). Her current claim of uncertainty regarding the actual date of
receipt does not provide sufficient grounds for setting aside the court’s judgment
under Rule 59(e) or Rule 60(b)(6).
Plaintiff also argues she is entitled to the benefit of the 3-day mailing rule under
Rule 6(d) of the Federal Rules of Civil Procedure, such that the 90-day statute of
limitations provided in the ADA and ADEA, see 42 U.S.C. § 2000e-5(f)(1), 42 U.S.C.
§ 12117(a), and 29 U.S.C. § 626(e),4 would be extended to 93 days following receipt
of the right-to-sue letter. Obviously, this is not a correct statement of the law. The
statutory limitations period remains fixed at 90 days and it runs from the date of
receipt of the right-to-sue letter; the 3-day mailing rule only serves to provide a
presumptive date for commencement of the limitation s period when the actual date
of receipt of the right-to-sue letter is disputed or unknown. See Mosel v. Hills Dept.
Store, Inc., 789 F.2d 251, 253 (3rd Cir. 1986) (The statute “requires that a complaint
be filed within ninety days after the plaintiff actually receives notice of the EEOC’s
decision. An additional period to compensate for mailing time is irrelevant and
Plaintiff also asserted a claim under the Nebraska Fair Employment Practice
Act (“NFEPA”). According to information that was provided by Plaintiff in the brief
submitted in support of her Amended Complaint, the 90-day limitations period for
filing suit under NFEPA, see Neb. Rev. Stat. § 48-1120.01, expired on October 26,
2016 (Filing No. 14 at CM/ECF p. 2). NFEPA’s limitations period is not tolled
pending issuance of the EEOC’s right-to-sue letter. See Hohn v. BNSF Ry. Co., 707
F.3d 995, 1000-01 (8th Cir. 2013).
inappropriate.”); Peete v. American Standard Graphic, 885 F.2d 331, 331-32 (6th Cir.
1989) (“ 2000e-5(f)(1) requires that a complaint be filed within ninety days after the
right-to-sue notice is actually received. The mailing time from the EEOC to the
plaintiff works absolutely no hardship; therefore, no discernable purpose is served by
applying [former] Rule 6(e).”) (emphasis in original); Kovtun, 2009 WL 113879, at
*2 (former Rule 6(e) “does not automatically allow a three-day extension to the
In conclusion, Plaintiff has not has not demonstrated any legitimate reason for
altering, amending, or otherwise obtaining any relief from the court’s judgment of
dismissal. She has not shown that the dismissal was the result of manifest error of law
or fact, nor has she produced any newly discovered evidence that might lead to a
different result. Plaintiff has not shown that she made a mistake in pleading the date
of receipt of the right-to-sue letter. No “extraordinary circumstances” are presented.
Instead, it seems Plaintiff simply missed the statutory deadlines for filing suit under
the ADA, ADEA, and NFEPA. Although Plaintiff appears pro se, she is presumed to
know the law. See Baker v. Norris, 321 F.3d 769, 772 (8th Cir. 2003).
IT IS THEREFORE ORDERED that Plaintiff’s motion for reconsideration
(Filing No. 20) is denied.
DATED this 11th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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