Opinion
CIVIL ACTION NO: 99-0199, SECTION: "R" (3).
August 16, 2000
ORDER AND REASONS
Before the Court is plaintiffs Terry Porter and Karen Robinson's motion for the Court to reconsider its June 27, 2001 and June 28, 2001 orders dismissing their employment discrimination claims on summary judgment.
Although the Federal Rules of Civil Procedure do not formally recognize a motion to reconsider in haec verba, the Fifth Circuit has held that a motion to reconsider a dispositive pretrial motion may be classified under either Rule 59 or Rule 60, depending upon the time of filing. See Pryor v. United States Postal Service, 769 F.2d 281, 285 (5th Cir. 1985); Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n. 14 (5th Cir. 1994) (en banc) As plaintiffs filed their motion for reconsideration more than ten days after judgment, the motion falls under Rule 60(b) as a motion for "relief from judgment." See Lavespere, 910 F.3d at 173. Under Rule 60(b) a court will grant relief from a final judgment or order only upon a showing of one of:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Here, plaintiffs assert that they were unable to defeat the summary judgment motions due to defendant's failure to respond to discovery. Plaintiff 5 contend that defendant failed to respond to three sets of discovery motions. Further, plaintiffs allege that defendant failed to provide information pertaining to similarly situated employees for a three-month period prior to and subsequent to the employment of plaintiffs.
Plaintiffs base their motion for reconsideration on Rule 60(b)(3). Under Rule 60(b)(3), "A party making a Rule 60(b)(3) motion must establish by clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case." Government Financial Services One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767, 772 (5th Cir. 1995) (quotation omitted). "Although Rule 60(b)(3) applied to misconduct in withholding information called for by discovery, it does not require that the information withheld be of such nature as to alter the result in the case." Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978) (citation omitted). In other words, plaintiffs need not establish that the outcome of the summary judgment motions would have been different absent MM's misconduct, but they must show by clear and convincing evidence that defendant's conduct prevented them from fully and fairly presenting their case. Id.
Regarding the misconduct element of the test, plaintiffs present nothing more than conclusory allegations that defendant failed to comply with discovery orders. Indeed, defendant maintains that it complied with the only discovery order issued. Plaintiffs do not produce the relevant discovery orders, nor do they identify which documents they requested or which documents were not produced.
Moreover, the record is clear that plaintiffs' allegation that defendant failed to produce information concerning similarly situated employees hired in a three-month period prior to and subsequent to plaintiffs' employ is at least partly untrue. Indeed, the Court referred to those documents in its motion for summary judgment. See Porter v. Milliken Michaels, 2001 WL 736753, *4 (E.D. La. 2001) ("In fact, MM paid Porter approximately the same starting salary that it paid other salespersons hired in the three-month period before and after Porter was hired by MM.").
Even if the Court assumes that plaintiffs clearly asked MM for all the documents on which they base their Rule 60(b)(3) claim, plaintiffs do not provide the Court with "clear and convincing evidence" that MM engaged in any misconduct concerning those documents because it does not show by clear and convincing evidence that MM ever had the documents in its possession. See Peyton Place, 62 F.3d at 772 (denying a 60(b)(3) motion where appellant failed to provide the district court with any clear and convincing evidence that any of the requested documents had ever been in appellee's possession); compare Rozier, 573 F.2d at 1341. Further, plaintiffs do not address at all the requirement that they show by clear and convincing evidence that the misconduct prevented them from fully and fairly presenting their case.
Since the Court finds that plaintiffs fail to offer any evidence or arguments that merit reconsideration, the motion to reconsider is denied.