Ellison et al v. The Fund for Theological Education, Inc. et al

Filing 65

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' 61 Motion for Reconsideration. Signed by Senior Judge Frederick P. Stamp, Jr on 2/2/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES ELLISON and MARTHA WRIGHT,
Plaintiffs,
v.

Civil Action No. 5:13CV136
(STAMP)
THE FUND FOR THEOLOGICAL EDUCATION, INC.
and STEPHEN LEWIS,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION
I.

Procedural History

On September 30, 2013, the defendants removed the above-styled
civil action to this Court alleging diversity jurisdiction.

The

plaintiffs originally brought this action in the Circuit Court of
Ohio County, West Virginia.
defendant

The

Fund

for

The plaintiffs were employees of

Theological

Education,

Inc.

(“FTE”).

Defendant Stephen Lewis (“Lewis”) is the president of FTE.

In

their complaint, the plaintiffs assert claims under the West
Virginia Human Rights Act (“WVHRA”), W. Va. Code § 5-11-1 et seq.
In Count I, the plaintiffs assert that the defendants violated
§

5-11-9

generally

and

§

5-11-9(7)(A).

In

particular,

the

plaintiffs allege that the defendants terminated their employment
based on the plaintiffs’ race and age, and because they raised
concerns about violations under the WVHRA.

In Count II, the

plaintiffs allege that the defendants conspired to violate the
WVHRA.

The plaintiffs later filed a motion for leave to file an

amended complaint, which this Court granted following a hearing on
the matter.

ECF Nos. 38 and 47, respectively.

In the amended

complaint, the plaintiffs added Count III, alleging that the
defendants violated the public policy of West Virginia as provided
under the WVHRA.

See W. Va. Code § 5-11-9 (2014).

The defendants’ motion to reconsider1 at issue relates to this
Court’s ruling that denied the defendants’ motion for summary
judgment as untimely.

ECF No. 60.

The scheduling order in effect

required that all dispositive motions be filed by November 28,
2014.

ECF No. 32.

The defendants, three days after failing to

file any such motion by that date, then filed a motion to amend the
scheduling order. ECF No. 51. One week later, the defendants then
filed a (1) motion for leave to file a motion for summary judgment,
and (2) their motion for summary judgment.
54.

ECF Nos. 52, 53, and

The plaintiffs filed responses in opposition to the motion to

amend the scheduling order and the later motion for leave to file
a motion for summary judgment.

ECF Nos. 57 and 58.

Because the

defendants failed to timely file their motion for summary judgment,
this Court denied their motion for summary judgment as untimely,
and also denied the defendants’ other related motions. ECF No. 60.

1

It should be noted that the defendants do not specifically
indicate under which Federal Rule of Civil Procedure (“Fed. R. Civ.
P.”) they filed their motion for reconsideration. Because their
motion pertains to an order of this Court, their motion will be
construed as being filed under Federal Rule of Civil Procedure
60(b).
2

Following that ruling, the defendants filed a motion for
reconsideration.

ECF No. 61.

assert three arguments.

In that motion, the defendants

First, the defendants claim that their

office was closed during the Thanksgiving holiday, and that local
counsel did not realize that the dispositive motion deadline arose.
Regarding this claim, the defendants point out that local counsel
discovered

that

cancerous tumor.

he

suffered

from

adenocarcinoma,

a

type

of

Due to the medical distractions and surgery

required, local counsel allegedly lost track of the deadline.
Second, the defendants claim that they sought consent from the
plaintiffs to file an untimely motion for summary judgment, but
never heard back.

Specifically, they claim that counsel for the

plaintiffs wanted to discuss with their clients whether or not to
consent to the untimely filing, but allegedly never updated the
defendants.

Thus, the defendants filed the motions for leave and

motions to amend.

Third, the defendants claim that this Court

previously granted the plaintiffs’ various motions, despite their
untimeliness. Regarding that argument, the defendants point to the
fact that this Court granted the plaintiffs’ motion to amend their
complaint, which was filed after the deadline provided in the
scheduling order. See ECF No. 47. Because of that, the defendants
argue that this Court must treat both parties the same. Therefore,
the defendants request that this Court grant their motion for
reconsideration and allow them to file their dispositive motion.

3

The plaintiffs then filed a response in opposition.
62.

ECF No.

The plaintiffs first point out that the defendants cite no

legal authority as to why this Court should grant their motion for
reconsideration. Regarding that claim, the plaintiffs cite to case
law that considers the granting of a motion to reconsider to be an
extraordinary remedy.

Next, the plaintiffs provide that the

defendants produced no newly-discovered facts or law as to why this
Court should “change its mind” on the matter, claiming that the
defendants’ reasons for tardiness are the same ones as those found
in their motion to amend/correct the scheduling order. See ECF No.
51. Therefore, the plaintiffs argue that the defendants present no
valid reason, whether factual or legal, as to why this Court should
provide such an extraordinary remedy.

Accordingly, they request

that this Court deny the motion for reconsideration.
The defendants then filed a reply in support of their motion.
ECF No. 63.

In that reply, the defendants first argue that they

have new evidence as to why this Court should grant their motion
for reconsideration. Here, the defendants refer to local counsel’s
medical complications, which they claim was only discussed in the
motion for reconsideration.

Next, the defendants again claim that

this Court has granted the plaintiffs’ motions in the past, despite
their untimely nature.

Regarding that claim, the defendants again

point to the granting of the plaintiffs’ motion to file an amended
complaint. The defendants then argue that no prejudice against the

4

plaintiffs will result if this Court grants their motion. However,
the defendants then argue that failure to grant their motion will
result in great prejudice to them.

Here, they claim that since

this Court’s denial of their motion to file a motion for summary
judgment, the plaintiffs significantly increased their settlement
demand. Finally, the defendants claim that this Court should grant
their motion in the interests of the fair administration of
justice.

For the reasons set forth below, the defendants’ motion

for reconsideration is denied.
II.

Facts

The plaintiffs, who are residents of Wheeling, West Virginia,
worked for FTE until August 2013.

In particular, plaintiff James

Ellison started working for FTE in 2005, and plaintiff Martha
Wright began in 2008.2

Both plaintiffs are white and over the age

of 50. FTE is a non-profit corporation that is organized under New
York law and maintains it principal place of business in Georgia.
In addition, defendant Stephen Lewis currently serves as the
president of FTE.
The plaintiffs worked with a team of other employees to
develop the “Volunteers Exploring Vocations Program.” That program
was funded by a grant that was allegedly scheduled to expire at the
end

of

2013.

Further,

the

program

2

maintained

an

office

in

The plaintiffs originally acted as consultants to FTE, but in
2010 they both became regular employees of FTE.
5

Wheeling, West Virginia, where the plaintiffs worked. In 2013, the
defendants planned to close the office in Wheeling, and offered the
plaintiffs either full time jobs in Atlanta, Georgia, or consultant
positions in Wheeling, West Virginia. According to the plaintiffs,
the defendants created a hostile work environment during this
transition period, allegedly making racial and age-based remarks.
In particular, the plaintiffs allege that defendant Lewis stated
that the plaintiffs were a “problem . . . because the white people
are

in

Wheeling

and

the

African

Americans

are

in

Atlanta.”

Further, regarding the job offers in Atlanta, defendant Lewis
allegedly said to the plaintiffs that “[w]hen I’m 63, I hope the
organization I work for is as good to me as we are to you,” and
allegedly questioned plaintiff Ellison about why “he was still
working at his age.”

During this time period, the plaintiffs

allegedly agreed to work until the end of 2013, but the defendants
terminated their employment in August 2013.
discriminatory

remarks

and

other

Based on the alleged

similar

occurrences,

the

plaintiffs claim that the defendants terminated their employment
based on their age and race, or that such discriminatory criteria
served as a substantial factor for that termination.

In addition,

the plaintiffs claim that the defendants also created a hostile
work environment based on their age and race.

6

III.

Applicable Law

Federal Rule of Civil Procedure 60(b) provides that a court
may, upon motion or other terms, relieve a party from a final
judgment, order, or proceeding for any of the following reasons:
(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)(1-6).

Generally, motions to reconsider are

“to be granted only in such extraordinary circumstances . . . .
Indeed, the court’s orders are not mere first drafts, subject to
revision and reconsideration at a litigant’s pleasure.”

United

States S.E.C. v. Nat’l Presto Industries, Inc., 2004 WL 1093390, at
*2 (N.D. Ill. Apr. 28, 2004) (quoting Quaker Alloy Casting Co. v.
Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988)); see
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64
(1988); Massengale v. Oklahoma Bd. of Examiners in Optometry, 30
F.3d 1325, 1330-31 (10th Cir. 1994).

It is improper to use such a

motion to ask the court to “rethink what the court has already
thought through--rightly or wrongly.”
Bohannan

Roofing,

Inc.,

99

F.R.D.

7

Above the Belt, Inc. v. Mel
99,

101

(E.D.

Va.

1983).

Examples of when a motion to reconsider may be appropriate include
situations such as the following:
[W]here . . . the Court has patently misunderstood a
party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has made
an error not of reasoning but of apprehension. A further
basis for a motion to reconsider would be a controlling
or significant change in the law or facts since the
submission of the issue to the Court.
Such problems
rarely arise and the motion to reconsider should be
equally rare.
Id. at 101; Bank of Waunakee v. Rochester Cheese Sales, Inc., 906
F.2d 1185 (7th Cir. 1990).
IV.

Discussion

As discussed earlier, the defendants argue that this Court
should grant their motion to reconsider for the following reasons:
(1) the recent health concerns of the defendants’ local counsel
created distractions; (2) counsel for the plaintiffs failed to
promptly indicate whether they would consent to the filing of an
untimely motion for summary judgment; (3) that this Court, having
granted the plaintiffs “untimely” motion to amend the complaint,
must treat the parties equally; (4) that the defendants face great
prejudice in any future settlement attempts; and (5) in order to
fairly administer justice.

In response, the plaintiffs contend

that the defendants present no factual or legal reasons that
warrant this extraordinary remedy.
The facts indicate that the defendants fail to satisfy any of
the reasons listed under Federal Rule of Civil Procedure 60(b).

8

Regarding mistake or excusable neglect, the defendants point to
their local counsel’s recent health problems.
is

sympathetic

situation,

the

defendants admit that his health issues began in August 2014.

ECF

No. 61 *3.

to

their

counsel’s

health

Although this Court
and

Therefore, the defendants’ local counsel’s health

concerns fail to demonstrate a mistake or excusable neglect so as
to satisfy Federal Rule of Civil Procedure 60(b). Concerning newly
discovered evidence, the defendants again point to their counsel’s
health concerns, which again is an insufficient justification.

As

for the third reason under Federal Rule of Civil Procedure 60(b),
which is fraud or misconduct by an opposing party, the facts fail
to

show

that

the

plaintiffs

engaged

in

such

conduct.

The

defendants allege that the plaintiffs never updated them about
whether the plaintiffs consented to the untimely filing of their
motion for summary judgment. To the extent that the defendants use
that alleged incident as an example of misconduct, that act, even
if true, fails to amount to fraud or misconduct for purposes of
Federal Rule of Civil Procedure 60(b).

See, e.g., Abrahmsen v.

Trans-State Exp., Inc., 92 F.2d 425 (6th Cir. 1996) (fraud or
misconduct

existed

when

opposing

counsel

provided

a

material

witness whose testimony was false); Davis v. Jellico Community
Hosp., Inc., 912 F.2d 129, 134 (6th Cir. 1990); Anderson v.
Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988); Carson v. Polly, 689
F.2d 562, 586 (5th Cir. 1982).

9

Regarding the defendants’ remaining arguments, it appears that
they argue that the final reason under Federal Rule of Civil
Procedure

60(b)(6)

applies.

They

stats

that

a

motion

for

reconsideration may be granted for “any other reason that justifies
relief.”

Fed. R. Civ. P. 60(b)(6).

That catchall provision,

however, does not apply to the defendants’ remaining arguments.
The defendants argue that this Court granted the plaintiffs’ motion
to amend their complaint, even though the deadline for filing an
amended complaint expired.

That ruling, however, was based on the

standards applicable to whether a court should permit the filing of
an amended complaint.

See Fed. R. Civ. P. 15; Mayfield v. Nat’l

Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369 (4th Cir.
2012); Matrix Capital Management Fund, LP v. Bearing Point, Inc.,
576 F.3d 172 (4th Cir. 2009).
for

summary

judgment

or

The standards for deciding a motion

motion

to

reconsider,

however,

are

different. Therefore, it is misguided to compare that prior ruling
with the currently pending motion before this Court.

Finally,

regarding the defendants’ claim of prejudice by the plaintiffs’
settlement demands, such a claim fails to satisfy the standards for
a motion to reconsider.

It should be noted that this Court

conducted a recent hearing on the plaintiffs’ motion to amend their
complaint.

At that hearing, the defendants could have made the

Court aware of any concerns about the deadlines contained in the
current scheduling order.

That did not occur.

10

See ECF No. 55.

Accordingly, because the defendants fail to satisfy the any of the
reasons under Federal Rule of Civil Procedure 60(b), their motion
for reconsideration must be denied.
V.

Conclusion

For the reasons discussed above, the defendants’ motion for
reconsideration (ECF No. 61) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

February 2, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

11