Perry v. Certified Transmission Rebuilders Inc.

Filing 14

MEMORANDUM AND ORDER - Plaintiff's motion for reconsideration (Filing No. 13 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN ARTIS PERRY,
Plaintiff,

8:17CV322

vs.
CERTIFIED TRANSMISSION
REBUILDERS INC.,

MEMORANDUM
AND ORDER

Defendant.
Plaintiff 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.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

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 February 26, 2018.

(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 Gonzalez v. 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 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

2

EEOC. Upon review, the documents provided do not apply and do not change the
result in this case.
As the 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.
The 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

3

presented. Thus, Plaintiff has failed to establish sufficient grounds for setting aside
the court’s judgment under Rule 59(e) or Rule 60(b).
IT IS THEREFORE ORDERED that Plaintiff’s motion for reconsideration
(Filing No. 13) is denied.
Dated this 16th day of March, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

4