Byrd v. Fingerlakes \ Developmental Disabilities Services Office O.P. W.D.D.

Filing 65

DECISION AND ORDER denying 61 Motion to Vacate. The Court certifies that any appeal of this decision and order would not be taken in good faith, and therefore denies Plaintiff permission to proceed in forma pauperis on appeal. Plaintiff is cautio ned that the continued filing of factually and legally baseless motions for relief from judgment may subject her to sanctions under Rule 11 of the Federal Rules of Civil Procedure. Signed by Hon. Michael A. Telesca on 6/25/19. (Copy of this Decision and Order sent by first class mail to Plaintiff.) (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICKIE DIANNE BYRD,
Plaintiff,

No. 6:14-cv-06470(MAT)
DECISION AND ORDER

-vsNYS FINGERLAKES DEVELOPMENTAL
DISABILITIES SERVICES
O.P.W.D.D.,
Defendant.
INTRODUCTION
Proceeding pro se, Vickie Dianne Byrd (“Plaintiff”) instituted
this action by filing a complaint (Dkt #1) dated August 11, 2014,
alleging that “NYS Fingerlakes Developmental Disabilities Services
O.P.W.D.D.”1

discriminated against her in connection with her

application for employment in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq.; Americans with Disabilities Act of 1990 (“ADA”), Pub. L.
No. 101–336, 104 Stat. 327, amended by ADA Amendments Act of 2008,
Pub. L. No. 110–325, 122 Stat. 3553 (2008); and the New York Human
Rights Law (“NYHRL”), N.Y. Exec. Law § 290 et seq.
In a Decision and Order filed on November 22, 2018, the Court
granted Defendant’s renewed Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure (“FRCP”) 56 in its entirety,

1

This term appears to be a conflation of the New York State Office For
People With Developmental Disabilities (“OPWDD”) and the Finger Lakes
Developmental Disabilities State Operations Office (“FLDDSOO”).

finding that Plaintiff failed to prove that she was qualified for
the position and that Defendant fulfilled its burden of production
by

articulating

legitimate,

nondiscriminatory

reasons

for

not

hiring her. Accordingly, the Court dismissed Plaintiff’s Complaint.
See Dkt #54. Judgment in Defendant’s favor was entered on November
26, 2018. See Dkt #55.
On December 7, 2018, Plaintiff filed a Motion to Vacate the
Judgment. See Dkt #56. Plaintiff also filed a pleading purporting
to be Response in Opposition, see

Dkt #57, to Defendant’s no-

longer-pending summary judgment motion along with an Opposition to
Statement of Fact, see Dkt #57-1. Defendant filed a Memorandum in
Opposition (Dkt #58) to Plaintiff’s motion for vacatur. The Court
issued a Decision and Order (Dkt #) denying Plaintiff’s Motion to
Vacate is denied in its entirety because her conclusory postjudgment submissions provided the Court with no basis to deviate
from its ruling granting summary judgment in Defendant’s favor.
Plaintiff has filed yet another Motion to Vacate (Dkt #61).
Defendant
LEGAL STANDARD
The Court construes Plaintiff’s latest motion as being brought
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure
since it was brought outside the 30-day time limit set forth in
Rule 59(e).

Rule 60(b) allows a party to seek relief from a final

judgment on certain enumerated grounds: mistake, inadvertence,
surprise, or excusable neglect; newly discovered evidence; fraud;
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the judgment is void; or the judgment has been satisfied. FED. R.
CIV. P. 60(b)(1)-(5). Rule 60(b) also has a so-called “catch-all”
provision, subsection (6), which allows vacatur for “any other
reason that justifies relief. . . .” FED. R. CIV. P. 60(b)(6).
DISCUSSION
Plaintiff seeks permission to submit an audio recording made
by unidentified person or persons that will somehow prove that she
was qualified for the position she sought with Defendant and that
Defendant’s refusal to hire her was discriminatory. The only two
subsections of Rule 60(b) under which this material could fall is
(b)(2) which pertains to newly discovered evidence; or (b)(6), the
Rule’s catch-all provision.
I.

The Audio Recording Is Not Newly Discovered Evidence
“In order to succeed on a motion pursuant to Rule 60(b)(2),

the movant must present evidence that is ‘truly newly discovered or
. . . could not have been found by due diligence.’” United States
v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983)
(quoting Westerly Electronics Corp. v. Walter Kidde & Co., 367 F.2d
269, 270 (2d Cir. 1966)). Additionally, the Court must be satisfied
that the evidence is “not merely cumulative or impeaching”; is
“material to the issues”; and “is such that upon a [rehearing of
the motion] it would probably produce a different result.” United
States v. All Right, Title & Interest In Prop. & Premises Known As
710 Main St., Peekskill, N.Y., 753 F. Supp. 121, 126 (S.D.N.Y.
1990) (quoting Gemveto Jewelry Co., Inc. v. Jeff Cooper, Inc., 613
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F.

Supp.

1052,

1058

(S.D.N.Y.

1985)

(citations

and

footnote

omitted), vacated on other grounds, 800 F.2d 256 (Fed. Cir. 1986)).
Here, the audio record is not plainly not newly discovered evidence
as it has been in Plaintiff’s possession since at least 2017, when
she represented to the Court that she would produce it for copying
or listening. See Dkt ## 32 & 38. However, she never did so,
despite repeated requests from Defendant’s counsel. Furthermore,
the Court cannot find that the audio recording is “material” or
would “probably [have] produce[d] a different result” because
Plaintiff fails to reveal the contents of the alleged the audio
recording much less explain how it would create a genuine issue of
material fact so as to have enabled her to withstand summary
judgment on her claims.
In short, the audio recording does not constitute newly
discovered evidence, and Plaintiff cannot obtain vacatur of the
judgment pursuant to Rule 60(b)(2).
II.

There Are No “Extraordinary Circumstances” Justifying Relief
Under Rule 60(b)(6)
Rule 60(b)’s so-called “catch-all” provision, subsection (6),

allows vacatur of a judgment for “any other reason that justifies
relief.”

Fed.

R.

Civ.

P.

60(b)(6).

“[B]ecause

the

scope

of

Rule 60(b)(6) is potentially broad, relief is justifiable only
where the movant shows ‘exceptional circumstances [or] extreme
hardship.’” Cobos v. Adelphi Univ., 179 F.R.D. 381, 388 (E.D.N.Y.

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1998) (quoting United States v. Cirami, 563 F.2d 26, 30 (2d Cir.
1977)).
Plaintiff’s situation is entirely of her own making. She
refused to produce the audio recording on which she now seeks
relief from judgment at a time when the Court could have considered
it in connection with Defendant’s summary judgment motion. For
whatever reason, she declined to do so, and “Rule 60(b)(6) does not
afford relief for deliberate tactical decisions of a party.” Cobos,
179 F.R.D. at 388 (citing

Nemaizer v. Baker, 793 F.2d 58, 59-60

(2d Cir. 1986) (“The reason appellees advance to obtain Rule 60(b)
relief

from

the

order

of

dismissal

is

that

the

stipulation

contemplated only a pending state claim, not a federal claim. The
legal consequences of a stipulation incorporated in a court order
may not be undone simply because, with the benefit of hindsight,
stipulating turns out to have been an unfortunate tactic.”). In the
present

situation,

where

the

Court’s

lack

of

access

to

the

purported new evidence is due entirely to Plaintiff’s own choices,
Plaintiff cannot demonstrate extreme hardship or extraordinary
circumstances. Rule 60(b)(6) does not countenance such practices,
and relief under this section is denied.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Vacate is
denied. The Court certifies that any appeal of this decision and
order would not be taken in good faith, and therefore denies
Plaintiff permission to proceed in forma pauperis on appeal.
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Plaintiff is cautioned that the continued filing of factually and
legally baseless motions for relief from judgment may subject her
to sanctions under Rule 11 of the Federal Rules of Civil Procedure.
SO ORDERED.
S/Michael A. Telesca

HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 25, 2019
Rochester, New York.

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