The opinion of the court was delivered by: Glasser, District Judge:
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.
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:
(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 ...