Malagon v. Crescent Hotels and Resorts
Filing
126
MEMORANDUM OPINION AND ORDER denying 123 Rule 60-Relief from a Judgment or Order filed by Jose Mauricio Malagon; denying 124 MOTION for Rule 60(b) Relief from a Judgment or Order Support Evidence for a New Trial or Reverse the Judgment filed by Jose Mauricio Malagon. (Ordered by Senior Judge Sidney A Fitzwater on 11/1/2018) (Senior Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOSE MAURICIO MALAGON,
Plaintiff,
VS.
CRESCENT HOTEL AND RESORTS,
Defendant.
§
§
§
§ Civil Action No. 3:16-CV-0644-D
§
§
§
§
§
MEMORANDUM OPINION
AND ORDER
Plaintiff Jose Mauricio Malagon (“Malagon”) moves for relief under Fed. R. Civ. P.
60 from an adverse judgment entered following the entry of partial summary judgment and
a bench trial.1 Concluding that Malagon has not produced newly-discovered evidence, clear
and convincing proof of fraud or misconduct, or any other reason justifying relief, the court
denies the motion.
I
The court has already recited the relevant background facts in a prior memorandum
opinion and order, see Malagon v. Crescent Hotel & Resorts (Malagon I), 2017 WL
2536995, at *1-2 (N.D. Tex. June 12, 2017) (Fitzwater, J.), and it will not repeat those facts
here.
1
On September 11, 2018 Malagon filed a Rule 60 motion. On October 1, 2018 he
filed a Rule 60(b) motion that is in the nature of a supplement to his initial motion and
includes additional exhibits. Defendant Crescent Hotels and Resorts responded to both
motions on October 2, 2018. Malagon has not replied to the response.
Malagon filed the instant lawsuit against defendant Crescent Hotels and Resorts
(“Crescent”), alleging claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In
Malagon I the court entered partial summary judgment in favor of Crescent as to all but one
of Malagon’s claims: that Crescent had failed to reasonably accommodate Malagon’s
disability, in violation of the ADA. The parties then tried the remaining claim to the court
in a bench trial. By that time, Malagon’s counsel had withdrawn, and he was proceeding pro
se. At the conclusion of the trial, the court ruled in favor of Crescent, finding that Malagon
had failed to prove the accommodation claim by a preponderance of the evidence, and it
entered judgment in favor of Crescent.
Malagon now moves under Rule 60 for relief from the judgment on the grounds that
he has acquired new evidence in support of his claim,2 that Crescent’s attorneys and
witnesses engaged in fraud and misconduct, and that his pro se status put him at an unfair
disadvantage at trial. Crescent opposes the motion.
II
Under Rule 60(b)(2), the court may relieve a party from a judgment if the party
presents “newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b).”
2
It is not apparent from reading Malagon’s motion that he is relying on a newevidence ground. But because Crescent has responded to the new-evidence contention and
the court is reading the motion liberally, it will analyze this ground as if it were properly
raised.
-2-
To succeed on a motion for relief from judgment based on
newly discovered evidence, our law provides that a movant must
demonstrate: (1) that it exercised due diligence in obtaining the
information; and (2) that the evidence is material and controlling
and clearly would have produced a different result if present[ed]
before the original judgment.
Goldstein v. MCI WorldCom, 340 F.3d 238, 257 (5th Cir. 2003) (citing Provident Life &
Accident Ins. Co. v. Goel, 274 F.3d 984, 999 (5th Cir. 2001)). Rule 60(b)(3) allows the court
to grant relief on the basis of “fraud . . . misrepresentation, or misconduct by an opposing
party.” “Fraud is ‘never presumed’ and ‘must always be proven by clear and convincing
evidence.’” Tu Nguyen v. Bank of Am., N.A., 516 Fed. Appx. 332, 335 (5th Cir. 2013) (per
curiam) (quoting Saenz v. Kennedy, 178 F.2d 417, 419 (5th Cir. 1949)). And under Rule
60(b)(6), the court can grant relief for “any other reason that justifies relief.” Although Rule
60(b)(6) is broadly worded, it is narrowly applied: “[r]elief under Rule 60(b)(6)—a
‘catch-all’ provision—is available ‘only if extraordinary circumstances are present.’”
Bahsoon v. Wells Fargo Bank, N.A., 2013 WL 1831786, at *1 (N.D. Tex. May 1, 2013)
(Fitzwater, C.J.) (quoting Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002)).
III
Applying the foregoing principles, the court concludes that Malagon has not shown
he is entitled to relief.
Malagon’s exhibits do not constitute new evidence that would have led to a different
outcome at trial. Nearly all of his exhibits were available to him before trial, either because
he already possessed them or because Crescent produced them during discovery. The only
-3-
truly new items that the court has identified—a September 2018 letter from Malagon’s pastor
attesting to Malagon’s character, and a June 2018 doctor’s note—would not have changed
the outcome at trial.
Nor does Malagon establish that Crescent engaged in fraud or misconduct. At some
points in his motion, Malagon tries to shift the burden of proof to Crescent to show that there
was no fraud. But under the law, it is Malagon who must prove that there was fraud, by clear
and convincing evidence. The clear and convincing evidence standard is a difficult one to
meet:
[c]lear and convincing evidence is that weight of proof which
produces in the mind of the trier of fact a firm belief or
conviction . . . so clear, direct and weighty and convincing as to
enable the fact finder to come to a clear conviction, without
hesitancy, of the truth of precise facts of the case.
Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (quoting
Shafer v. Army & Air Force Exch. Serv., 376 F.3d 386, 396 (5th Cir. 2004)). Malagon’s
arguments and exhibits do not constitute clear and convincing evidence of fraud.
Malagon does not offer any other compelling reason why the judgment should be
vacated. He emphasizes that his attorney abandoned him shortly before trial. Yet when his
attorney moved to withdraw, Malagon insisted that the court not reschedule his trial because
he intended to represent himself. He filed a pro se “notice of appearance and designation of
pro se” in which he stated the following, in pertinent part:
Plaintiff Jose Mauricio Malagon asks for permission to proceed
Pro Se. Plaintiff is very familiar with the details of the case and
has an intense desire and need to protect the interests of the case.
-4-
Plaintiff Jose Mauricio Malagon does not ask to res[e]t the
bench trial on April 2, 2018.
...
Also, I ask for permission to admit someone as a paralegal to be
helping during the trial.
Mar. 16, 2018 Notice of Appearance at 2 (emphasis in original; paragraph numbering
omitted). The court gave Malagon exactly what he asked for: it declined to continue the trial,
and it granted his request to have a paralegal assist him during the trial, provided the person
did not attempt to act in the role of an attorney. Malagon cannot now change his mind and
argue that because he did not have counsel at trial, he is entitled to relief from the judgment
against him. This is not an “extraordinary circumstance[]” justifying such relief. See
Bahsoon, 2013 WL 1831786, at *1.
In sum, because Malagon has not satisfied the requirements of Rule 60, he is not
entitled to the relief he seeks.
*
*
*
For the foregoing reasons, the court denies Malagon’s September 11, 2018 Rule 60
motion, as supplemented on October 1, 2018.
SO ORDERED.
November 1, 2018.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?