Edward Lorenzo Rease v. AT&T Corp. , 358 F. App'x 73 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13278 Dec. 21, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-02536-CV-CC-1
EDWARD LORENZO REASE,
Plaintiff-Appellant,
versus
AT&T CORP.,
COMMUNICATIONS WORKERS OF AMERICA,
Defendants-Appellees,
VALERIE BALLOWE,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 21, 2009)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Edward Lorenzo Rease, proceeding pro se, appeals the district court’s denial
of his Fed.R.Civ. P. 60(b) (“Rule 60(b)”) motion to re-open his previously
dismissed employment discrimination action against his former employer, AT&T
Corp. (“AT&T”), his former union, Communications Workers of America
(“CWA”), and a managerial employee of AT&T, Valerie Ballowe, in which he
alleged violations of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. §
12102, and various Georgia statutes. The district court construed Rease’s claims
under Rule 60(b)(1)-(3) and denied his motion to reopen as untimely because the
dispositive order had been entered over six years before the motion to reopen was
filed. Rease argues on appeal that the district court abused its discretion by
construing his motion under Rule 60(b)(1)-(3) and, accordingly, finding that his
motion was untimely. After careful review, we affirm.
We review the denial of a Rule 60(b) motion for abuse of discretion. Am.
Bankers Ins. Co. of Fla. v. Northwestern Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th
Cir. 1999). Generally, we will not consider an argument not raised in the district
court. F.D.I.C. v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993).
Rule 60(b) motions allow a party to be relieved from a judgment due to:
(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
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evidence which could not have been discovered earlier with due diligence;
(3) fraud, misrepresentation, or other misconduct of an adverse party; (4) a void
judgment; (5) a judgment that has been satisfied, released, discharged, reversed or
vacated; or (6) any other reason justifying relief from the operation of the
judgment. Fed.R.Civ.P. 60(b). The time requirement for the filing of a Rule 60(b)
motion allows for a filing within a “reasonable time,” or for reasons in Rule
60(b)(1), (2), and (3), within one year of judgment. Fed.R.Civ.P. 60(c). A
determination of what constitutes a reasonable time depends on the circumstances
in an individual case, and in making the determination, courts should consider
“whether the parties have been prejudiced by the delay and whether a good reason
has been presented for failing to take action sooner.” BUC Int’l Corp. v. Int’l
Yacht Council Ltd., 517 F.3d 1271, 1275-76 (11th Cir. 2008) (quotation omitted).
Rule 60(b)(5) justifies relief if “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.” Fed.R.Civ.P. 60(b)(5). Relief
under Rule 60(b)(5) due to inequity is limited to judgments that have prospective
effect, as compared to those that offer “a present remedy for a past wrong.” Cook
v. Birmingham News, 618 F.2d 1149, 1152 (5th Cir. 1980) (quotation omitted).1
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all former Fifth Circuit decisions issued before October 1, 1981.
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Rule 60(b)(6) permits a judgment to be set aside for “any other reason” that
justifies relief. Fed.R.Civ.P. 60(b)(6). Relief under Rule 60(b)(6) “is an
extraordinary remedy which may be invoked only upon a showing of exceptional
circumstances,” and that, “absent such relief, an extreme and unexpected hardship
will result.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984)
(quotations omitted). Even under exceptional circumstances, the decision of
“whether to grant the requested relief is a matter for the district court’s sound
discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir.
2000) (quotation and ellipsis omitted). “The appellant’s burden on appeal is
heavy.” Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006). The defendant
“must demonstrate a justification so compelling that the [district] court was
required to vacate its order.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115
(11th Cir. 1993) (quotation omitted). Further, relief under Rule 60(b)(6) applies
only to cases that do not fall into any of the other provisions of Rule 60(b). United
States v. Route 1, Box 111, Firetower Rd., 920 F.2d 788, 791 (11th Cir. 1991).
The district court did not abuse its discretion in denying Rease’s Rule 60(b)
motion. To the extent that Rease’s motion was premised on Rule 60(b)(1)-(3), his
motion was time-barred because he filed it more than six years after the relevant
judgment. Fed.R.Civ.P. 60(c)(1). In addition, there has been no claim that the
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district court’s order was void, and thus, Rule 60(b)(4) inapplicable. Fed.R.Civ.P.
60(b)(4). And as for Rease’s claim that Rule 60(b)(5) applies because “improper
dispositive orders” have been reversed, otherwise vacated, or it would be
inequitable to enforce the prospective application of the order, his argument is
unavailing. As CWA notes, there is no indication in the record that any of the
identified orders have been reversed or vacated.
Rease also is not entitled to relief under Rule 60(b)(6). First, Rease cannot
rely on Rule 60(b)(6) to obtain relief on grounds that AT&T and its attorneys
perpetrated a fraud on the court or that there is new evidence, because a court
considers claims premised on fraud or the existence of new discovered evidence
under Rule 60(b)(3) and Rule 60(b)(2), respectively. Route 1, 920 F.2d at 791.
Rease also cannot obtain relief under Rule 60(b)(6) by alleging that new cases
changed the law. None of the cases he cites would have impacted the district
court’s judgment, as they either clarified law existing at the time Rease filed his
complaint or were inapplicable to him.
In any event, even if Rease had satisfied the substantive requirements of
Rule 60(b)(5) or Rule 60(b)(6), he has not identified any circumstances which
might have justified his six-year delay in filing the motion to reopen. BUC Int’l
Corp., 517 F.3d at 1275 (instructing courts to consider the proffered reason for
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failing to take swifter action). Given his lack of diligence in filing the motion and
his failure to provide an explanation for the delay, Rease has not demonstrated that
his motion was filed within a reasonable time.
Finally, Rease’s suggestion that his motion could have been construed as a
motion to “entertain an independent action to relieve a party from a judgment,
order, or proceeding” brought pursuant to Rule 60(d) likewise fails. He made no
argument to this effect before the district court, and in fact, expressly identified his
motion as brought under Rule 60(b). S.E.C. v. Diversified Corp. Consulting
Group, 378 F.3d 1219, 1227 (11th Cir. 2004). Accordingly, we affirm.
AFFIRMED.
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