United States District Court, Eastern District of New York
October 17, 1991
HARILAL PATEL, M.D., PLAINTIFF,
LUTHERAN MEDICAL CENTER, INC., DEFENDANT.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
On July 15, 1991 this court by Memorandum and Order granted
defendant's motion for summary judgment dismissing the
complaint, and on July 22, 1991 a final judgment was entered.
Plaintiff now moves under Rules 52(b) and 59(e), Fed.R.Civ.P.,
"to set aside and vacate the fact-findings set forth in the
Memorandum and Order"; under Rules 60(b)(1), (2), (3), and (6)
to set aside and vacate the final judgment; and under Rule
3(j), Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York, for reargument of
the summary judgment motion. The grounds he alleges are (1)
that plaintiff has presented new facts which were not
previously set forth; (2) that the omissions were in error but
were excusable; and (3) that defendant has misrepresented
critical facts to the court in its papers.
The New Affidavits
Plaintiff filed two affidavits in support of the Rule 52(b),
59(e), and 60(b) motions, the second revising the first.
Defendants filed a responsive affidavit. Under Local Rule 3(j),
affidavits may not be filed without leave of the court, and
following a request by plaintiff I explicitly denied leave by
written order on July 22, 1991. As set forth below, the
affidavits shall be disregarded in connection with that motion.
Their contents is described herein for such application as they
have to the other motions.
Familiarity with the July 15, 1991 Memorandum and Order here
is presumed. By way of summary, however, the undisputed facts
presented to the court with the motion for summary judgment
were that plaintiff, a successful surgeon in private practice
held, in addition to full attending privileges at Lutheran
Medical Center ("LMC" or "the Hospital"), the part-time $30,000
per year position of Chief of Ambulatory Surgery at a community
clinic run by LMC. Prior to 1986, LMC recruited new doctors
through a teaching residency program, many of whom stayed in
the community and provided treatment to its patients. In 1986,
however, LMC lost its residency program, and, by virtue at
least of its location, realized difficulty in attracting new
doctors. As a recruiting device, LMC dissolved the position of
Chief of Ambulatory Surgery and created in its place three new
part-time clinic staff positions paying $10,000 per year. Their
hope was that the $10,000 salary would be attractive to new
doctors establishing private practices and might encourage some
who might not otherwise have considered it to settle in the
vicinity. Reference was made in a draft internal Hospital
memorandum to the need of a mechanism for attracting "young"
surgeons, and a similar reference was made in a letter written
by the Hospital's director of surgery. Plaintiff was terminated
and the three positions were filled
by doctors aged 38, 40, and 42 who were known to plaintiff
through their prior affiliation with LMC and who at the time
enjoyed attending privileges at the Hospital.*fn1 Summary
judgment was granted defendant because plaintiff offered no
evidence in rebuttal of its nondiscriminatory rationale for the
dissolution of plaintiff's position.
The basis of plaintiff's current motions is that, born and
raised in India, his English language skills are poor and he
had difficulty communicating his ideas to his attorney. Had he
"underst[ood] the nature of these legal proceeding," he would
have "[brought] to the attention of my attorneys certain
important factual matters." Patel Amended and Restated Aff.,
¶ 2. The supposedly new relevant factual matter was that the
three surgeons had prior affiliation with the Hospital as
attending surgeons, and that no "turnover" in the positions has
taken place. In support of the assertion of prior affiliations,
plaintiff submits as his Exhibit A a memorandum which indicates
the dates at which two of the three new doctors had been
appointed to the Hospital staff. That memorandum had been
"Exhibit B" to the affidavit of Miles Kucker, M.D. submitted by
defendant with the motion for summary judgment. The remainder
of plaintiff's affidavit is essentially reargument of the
merits of the summary judgment motion. Plaintiff claims that
prior to the July 15, 1991 decision he did not understand the
nature of defendant's proffered reason for the dissolution of
his position, but that his new affidavit should now effectively
demonstrate that it was pretextual, and that summary judgment
should have been denied.
Defendant, by its President and Chief Executive Officer
George Adams, submits an opposing affidavit. He first states
that plaintiff has no language problem. Adams Aff. ¶ 2. He then
states that the attending surgeons were chosen to fill the
three new positions because none were well established and one
of them, Dr. Khan, had expressed intention to leave the
Hospital and move to a different community. Id. ¶ 6(d). He
states that the salaried nature of the clinic positions serves
as a significantly stronger incentive than a grant of attending
status. Moreover, plaintiff was well aware of the background of
these surgeons prior to the motion; in fact, he trained them.
Adams also explains that while LMC still does not have a full
residency program, in October 1990 by affiliation with
Maimonides Medical Center four surgical residents from
Maimonides are now being trained at LMC. They have not rotated
new surgeons into the three clinic positions because of the
difficulty of recruiting new surgeons and because the need has
become less urgent. Id. ¶¶ 6(i)-(j).
1. Propriety of moving under 52(b) and 59(e):
Rule 52, Fed.R.Civ.P., provides, in part:
Findings By the Court
(a) Effect. In all actions tried upon the facts
without a jury or with an advisory jury, the court
shall find the facts specially and state
separately its conclusions of law thereon. . . .
Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rule 12
or 56 or any other motion except as provided in
(b) Amendment. Upon motion of a party made not
later than 10 days after entry of judgment the
court may amend its findings or make additional
findings and may amend the judgment accordingly.
The motion may be made with a motion for new trial
pursuant to Rule 59.
Rule 59(e) reads:
Motion to Alter or Amend a Judgment. A motion to
alter or amend the judgment shall be served not
later than 10 days after entry of the judgment.
Some courts have ruled that Rules 52(b) and 59(e) are not the
appropriate mechanism for seeking reconsideration of a
determination of a motion for summary judgment. One court
[Rules 52(b) and 59(e)] apply to judgments entered
after a trial and do not apply to judgments
entered pursuant to a motion for summary judgment,
as in the present case. Therefore, I will consider
this a Motion for Reconsideration pursuant to Rule
20(g) of the Local Rules of the Eastern District
Hill v. Bethlehem Steel Corp., 729 F. Supp. 1071, 1072 n. 1
(E.D.Pa. 1989), aff'd, 902 F.2d 1560
(3d Cir. 1990). Other
courts have rejected such motions to the extent they were
brought under Rule 52(b) but not 59(e). See All Hawaii Tours
Corp. v. Polynesian Cultural Center, 116 F.R.D. 645 (D.Haw.
1987) (determinations of fact on summary judgment "are not
findings of fact in the strict sense . . . A motion to amend
findings under Rule 52(b) does not lie where findings of fact
are unnecessary under Rule 52(a)."), rev'd in part on other
grounds, aff'd in part without pub'd op., 855 F.2d 860
Cir. 1988). Most courts, however, including those in this
circuit, allow a motion to amend a grant of summary judgment to
be brought under Rule 59(e). We will proceed, therefore, to the
merits. See, e.g., Northern Cheyenne Tribe v. Hodel,
842 F.2d 224 (9th Cir. 1988) (motion for reconsideration of summary
judgment appropriately brought under Rule 59); Kort v. Western
Surety Co., 705 F.2d 278
, 280-81 (8th Cir. 1983) (upholding
trial court's power, under Rule 59(e), to rescind prior grant
of summary judgment); Larry Spier, Inc. v. Bourne, Co., No. 90
Civ. 1065, slip op., 1991 WL 51146 (S.D.N.Y. Apr. 3, 1991)
(considering defendant's motion to amend judgment under Rule
59(e) after grant summary judgment even though "there is some
force to the suggestion" that "the substance of plaintiff's
motion does not fall within the rule."); Travelers Ins. Co. v.
Buffalo Reinsurance Co., 739 F. Supp. 209
(vacating summary judgment upon motion under Rule 59(e) and
Local Rule 3(j)).
2. "Newly Discovered Evidence"
Whether moving on the basis of presentation of new evidence
under Rule 59(e) or Rule 60(b)(2), the standard for "newly
discovered evidence" is the same. C. Wright and A. Miller, 11
Federal Practice and Procedure 182, § 2859 (1973 ed.) ("The
same standard applies to motions on the ground of newly
discovered evidence whether they are made under Rule 59 or Rule
60(b)(2), and decisions construing Rule 59 in this context are
authoritative in construing Rule 60(b)(2).").
Rule 60(b)(2) provides for relief from final judgment on the
basis of "newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial
under Rule 59(b)." Under Rules 59(e) and 60(b)(2) evidence
which was "in the possession of the party before the judgment
was rendered . . . is not newly discovered and does not entitle
him to relief." Id. at 182-83. See United States v. Potamkin
Cadillac Corp., 697 F.2d 491, 493 (2d Cir.), cert. denied,
462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983); Burzynski v.
Travers, 111 F.R.D. 15, 17 (E.D.N.Y. 1986).
The evidence sought to be admitted here is not "newly
discovered," as plaintiff's counsel acknowledged at oral
argument. It was not only within the knowledge of plaintiff
prior to the original motion, but documentary support of that
evidence, the memorandum submitted with the current motion as
plaintiff's Exh. A, had been served with defendant's motion
papers with the summary judgment motion. This fact renders
fulfillment of the "due diligence" component superfluous here,
since the evidence was in plaintiff's possession. However, even
if plaintiff's alleged language barrier somehow prevented the
evidence from being presented in what plaintiff would consider
a manner most favorable to his case, he has not demonstrated —
in light of plaintiff's continual presence in this country and
his 25-year successful career as a private practitioner,
teacher, and hospital administrator — that due diligence would
not have rendered the evidence available.
3. Local Rule 3(j)
As noted earlier, leave to submit affidavits in support of
plaintiff's Rule 36) motion was denied. Accordingly,
plaintiff's affidavits did not explicitly purport to be offered
in support of the Rule 30) motion, and they are disregarded in
connection with this motion.*fn2 Motions for reargument under
Rule 3(j) are granted only when new facts come to light or when
it appears that controlling precedents have been overlooked.
McMahan & Co. v. Donaldson Lufkin & Jenrette Security Corp.,
727 F. Supp. 833 (S.D.N.Y. 1989); Weissman v. Fruchtman,
658 F. Supp. 547 (S.D.N.Y. 1987). Plaintiffs have not endeavored to
identify controlling precedent which the court overlooked, save
an unexplained citation to one case, distinguished in the
margin.*fn3 Nor does plaintiff's affidavit, were it to be
considered, identify any
new facts which have come to light since the motion was argued.
The motion is thus denied.
4. "Mistake, inadvertence, surprise, or excusable
Rule 60(b)(1) provides for relief from judgment on the basis
of "mistake, inadvertence, surprise, or excusable neglect."
Plaintiff argues that his neglect was his and his attorney's
failure to marshall all the facts within his knowledge in
opposing the motion for summary judgment. His excuse is his
difficulty expressing himself in English. However,
[a] defeated litigant cannot set aside a judgment
[under Rule 60(b)(1)] because of his failure to
interpose a defense that could have been raised at
trial, or because he failed to present on a motion
for summary judgment all of the facts known to him
that might have been useful to the court.
C. Wright and A. Miller, 11 Federal Practice and Procedure 163,
173, § 2858 (1973 ed.). This is exactly what plaintiff is
attempting to do now, and the motion necessarily fails. See
also Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 29 (1st
Cir. 1980) (Rule 60(b)(1) motion denied despite submission of
relevant affidavit, since no explanation was given for failure
to present facts earlier).
Plaintiff states he is also moving under Rule 60(b)(3), which
provides relief from a judgment upon a showing that it was
procured by fraud or misrepresentation. No such showing has
been made here. In fact, as pointed out earlier, the document
plaintiff relies on here to demonstrate the Hospital's prior
association with the three doctors who replaced him was
submitted by defendant with its summary judgment motion papers.
Relief under this rule is thus denied as well.
6. "Clause (6)"
Under 60(b)(6), relief from a judgment is available for "any
other reasons justifying relief." Clause (6) may be relied upon
only in exceptional circumstances. Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 2204, 100
L.Ed.2d 855 (1988); United States v. Cirami, 563 F.2d 26, 32
(2d Cir. 1977). Wright and Miller explain:
In general, relief is given under clause (6) in
cases in which the judgment was obtained by the
improper conduct of the party in whose favor it
was rendered or the judgment resulted from the
excusable default of the party against whom it was
directed under the circumstances going beyond the
earlier clauses of the rule. The court then
considers whether relief under clause (6) will
further justice without affecting substantial
rights of the parties.
. . . [C]lause (6) and the first five clauses
are mutually exclusive and . . . relief cannot be
had under clause (6) if it would have been
available under the earlier clauses.
C. Wright and A. Miller, 11 Federal Practice and Procedure 213,
§ 2858 (1973 ed.). As plaintiff has demonstrated no misconduct
or excusable default on the part of defendants, and indeed no
exceptional circumstances, relief under clause (6) is not
available and is denied. See, e.g., United States v. Cirami,
563 F.2d at 34 (relief under Rule 60(b)(6) available where
attorney neglected case because of psychological disorder);
Vindigni v. Meyer, 441 F.2d 376
(2d Cir. 1971) (relief
available because of complete disappearance of plaintiff's
7. Defendant's Motion for Fees
Defendant has moved for attorney's fees with citation to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq., the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621, et seq., and several cases interpreting
provisions in those statutes permitting, under certain
circumstances, such an award. Those provisions aside, Rule 11,
Fed.R.Civ.P., commands that upon a finding that a pleading was
not "warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law,"
"sanctions shall be imposed." O'Malley v. New York City Transit
Authority, 896 F.2d 704, 709 (2d Cir. 1990); Eastway Constr.
Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985),
cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226
A cursory review of so much as a federal procedure treatise
would have revealed that this motion was utterly without legal
foundation. Plaintiff submitted three memoranda of law with
this motion — a Memorandum, a Revised Memorandum, and a Reply
Memorandum — presenting some 25 pages of discussion without
citation to any authority which would support his motion. The
memoranda and affidavits are also devoid of any factual basis
to support the present motions, save that rejected above as
wholly and patently insufficient.
This motion was a clear abuse of the mechanisms by which
reconsideration and amendment of judgment may be achieved in
The proponent of such a motion is not supposed to
treat the court's initial decision as the opening
of a dialogue in which that party may then use
Rule 30) to advance new facts and theories in
response to the court's ruling. The purpose of the
rule is to ensure the finality of decisions and to
prevent the practice of a losing party examining a
decision and then plugging the gaps of a lost
motion with additional matters.
McMahan & Co. v. Donaldson Lufkin & Jenrette, 727 F. Supp. 833
(citations and internal quotation marks omitted). An
appropriate sanction under Rule 11, Fed. R.Civ.P., shall
therefore be awarded. See, e.g., Collins Development Corp. v.
Marsh & McLennan, Inc., No. 90 Civ. 4675, slip op., 1991 WL
135605 (S.D.N.Y. July 18, 1991) (awarding Rule 11 sanctions
against plaintiff who, warned of the strict requirements of
Local Rule 3(j), filed its motion to reargue based on the
"discovery" of new evidence which was by plaintiff's own
admission within his possession prior to the filing of the
Defendant shall submit an affidavit setting forth the
reasonable expenses incurred because of the filing of this
motion, including an up-to-date record of counsel's hours and
rates. Such affidavit shall be filed on or before October 31,
1991. The plaintiff may file and serve a response on or before
November 15, 1991, and a hearing, if requested by either party,
will be held on November 22, 1991 at 9:30 a.m.