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WANAMAKER v. COLUMBIAN ROPE CO.

October 27, 1995

GILES A. WANAMAKER, Plaintiff,
v.
COLUMBIAN ROPE COMPANY, et al., Defendants.



The opinion of the court was delivered by: MCCURN

 BACKGROUND

 Familiarity with the court's prior two written decisions in this case is presumed. *fn1" Thus, departing from its usual format, rather than setting forth the pertinent facts at the outset, the court will immediately proceed to a brief discussion of the motions currently pending before it. Then, in analyzing the parties' respective arguments, the court will set forth only those facts necessary to a resolution of the relatively narrow issues before it on these motions.

 In the years since Wanamaker II, the parties have engaged in extensive and exhaustive discovery, culminating in the motions which are presently before the court. More specifically, on December 13, 1994, the court heard oral argument with respect to the summary judgment motion by the defendants, Columbian, as well as the individual defendants. The court also heard oral argument regarding plaintiff Wanamaker's motion for reconsideration pursuant to Fed. R. Civ. P. 60(b)(6). In his motion plaintiff seeks reconsideration of that portion of Wanamaker I wherein the court dismissed as untimely his claims of non-willful ADEA violations. Following oral argument, the court reserved decision and directed the defendants to order a copy of the transcript of oral argument and to provide the same to the court. On March 17, 1995, the transcript was filed with the court. After carefully reviewing the voluminous submissions made in connection with these motions, as well as the relevant case law, the court is now in a position to render its decision. (Even though Columbian's summary judgment motion was filed first, the court will address plaintiff's reconsideration motion at the outset because it can be more quickly resolved than the summary judgment motion.)

 DISCUSSION

 I. Reconsideration

 In Wanamaker I this court held, inter alia, that plaintiff's claims based upon nonwillful violations of the ADEA were time barred because the statutorily required filing fee was not paid until November 1, 1988 - after the two-year statute of limitations had run. 713 F. Supp. at 538-39. Plaintiff asserts that reconsideration of that holding is mandated for three reasons. First, he contends that that part of the Civil Rights Act of 1991 which eliminated the two year statute of limitations for nonwillful ADEA claims should be applied retroactively. Second, plaintiff asserts that this court should reconsider its prior decision as to the nonwillful ADEA claims because his lawyer at the time not only failed to timely remit the filing fee, but, to compound that, he also failed to timely submit an attorney's affidavit which purportedly would have stated that the summons and complaint were not returned to that attorney by the clerk's office, as defense counsel declared. *fn2" If all else fails, on his third argument plaintiff resorts to notions of "fairness," asserting that it was not "fair" for the court to treat the Local Rule requiring advance payment to the clerk's office as jurisdictional in nature. See Plaintiff's Memorandum in Support of his Motion for Reconsideration at I.

 Columbian's response is three-fold: (1) this reconsideration motion is not timely; (2) "plaintiff has not demonstrated any justification for this court to abandon its prior decision concerning when filing of plaintiff's complaint occurred, for limitations purposes[;]" and (3) "the Civil Rights Act of 1991 cannot be applied retroactively to revive plaintiff's claims of intentional discrimination under the ADEA[.]" Memorandum in Opposition to Plaintiff's Motion for Reconsideration at 6 and 13. Before addressing any of these arguments; the court must consider whether plaintiff has properly relied upon Rule 60(b) in making this motion - an issue Columbian overlooks.

 A. Finality Requirement

 Rule 60(b)(6) provides, in relevant part, for relief from "a final judgment, order, or proceeding" for "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6). Relying upon that Rule, plaintiff asserts that the court should reconsider its prior determination that his claims of nonwillful ADEA violations are time-barred. As the language of Rule 60(b)(6) plainly states, however, it affords relief only from a " final judgment, order or proceeding." Id. (emphasis added). The Advisory Committee explicitly stated in connection with the 1946 Amendment to that Rule that, "The addition of the qualifying word 'final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule[.]" Fed. R. Civ. P. 60 advisory committee note (emphasis added).

 This court's decision in Wanamaker I, dismissing some but not all of the defendants, and dismissing some but not all of plaintiff's claims, was interlocutory and thus not "final" for purposes of Rule 60(b). See James By James v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990) (dismissal order was interlocutory where some defendants remained as parties to the action); Wagner v. Rush-Presbyterian-St. Luke's Medical Center, No. 84 C 9060, 1987 U.S. Dist. LEXIS 4206, at *2 (N.D. Ill. May 18, 1987) (interlocutory decision dismissing plaintiff's sex discrimination claims only not within the province of Rule 60(b)); Peterson v. Department of Pub. Welfare, No. 83-714, LEXIS GENFED Library, DIST File (E.D.Pa. June 4, 1985) (order dismissing plaintiff's Pennsylvania Human Relations Act claims, but allowing other claims to stand, was interlocutory and thus not final for Rule 60(b) purposes). Thus, plaintiff's reconsideration motion does not come within the ambit of Rule 60(b).

 B. "As Justice Requires"

 Even though plaintiff cannot rely upon Rule 60(b) as a basis for this reconsideration motion, he is not completely foreclosed from seeking such relief. It is within the plenary power of the court "to review its interlocutory orders 'to afford such relief from them as justice requires,' and this power is not affected by Rule 60(b)." Krome v. Merrill Lynch & Co., Inc., 110 F.R.D. 693, 694-95 (S.D.N.Y. 1986) (and cases cited therein) ("Rule [60(b)] does not affect the court's inherent power to grant relief from interlocutory judgments or orders."); see also Golub v. Kidder, Peabody & Co., Inc., No. 89 Civ. 5903, 1991 U.S. Dist. LEXIS 15559, at *2 (S.D.N.Y. Oct. 21, 1991) (same); Seymour v. Bache & Company, Inc., No. 75 Civ. 3722, Fed. Sec. L. Rep. (CCH) P 98,818 (S.D.N.Y. Sept. 28, 1982) (quoting 7 J. Moore & J. Lucas, Moore's Federal Practice, P 60.20 at 242 (2d ed. 1982)) (same). *fn3" Consequently, even though plaintiff improperly relies upon Rule 60(b)(6) as the basis for this reconsideration motion, if "justice so requires," it is nonetheless within this court's plenary power to review that part of Wanamaker I to which plaintiff now objects. The court cannot arrive at that step in its analysis, however, because this reconsideration motion is untimely, although not necessarily for the reasons suggested by Columbian.

 1. Timeliness

 Local Rule 7.1(g) provides, in relevant part: "Motions for reconsideration . . ., unless otherwise governed by Fed. R. Civ. P. 60, shall be served not later than ten (10) days after the entry of the challenged judgment, order, or decree." Local Rule 7.1(g) (emphasis added). Even though plaintiff did not rely upon that Local Rule in making this motion, because, as already discussed, his motion is not "otherwise governed by [Rule] 60," he was required to bring such motion within ten days of Wanamaker I; and clearly he did not do that. See Burke v. Warren County Sheriff's Dept., 890 F. Supp. 133, 140 (N.D.N.Y. 1995) (reconsideration motion brought more than five months after challenged decision untimely under Local Rule 7.1(g)). Thus because plaintiff's motion was not timely brought, the court declines to reconsider that portion of Wanamaker I holding that plaintiff's claims based upon nonwillful violations of the ADEA are time barred.

 To be sure, in Stilloe v. Almy Bros., Inc., 782 F. Supp. 731 (N.D.N.Y. 1992), this court did hold that even though a reconsideration motion was not brought within the ten day time frame required by the Local Rule 10(m) (the predecessor to Local Rule 7.1(g)), the court would still entertain such motion because it was brought within a reasonable time under Fed.R.Civ.P. 60(b). Id. at 732-33. It is not evident from the face of that decision, but it appears that such motion was brought, at the latest, nine months after the challenged order. For the reasons set forth above, however, unlike Stilloe, plaintiff Wanamaker cannot avail himself of Rule 60(b)'s requirement that a motion thereunder be made "within a reasonable time." See Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995) (citing Fed.R.Civ.P. 60(b)).

 Before turning to Columbian's summary judgment motion, the court notes that even if plaintiff's motion were subject to some reasonableness standard of timeliness, the court agrees with Columbian that plaintiff cannot satisfy the same. As more fully explained in Columbian's memorandum in opposition, plaintiff has offered no explanation or excuse for this undeniably lengthy delay of more than five years between the date of the challenged order and the time he eventually filed this motion. Furthermore, as Columbian accurately points out, even if the basis for this motion is the claimed dispute over whether plaintiff's former attorney received the original summons and complaint returned by the clerk's office, plaintiff knew about that contention on October 2, 1989, at the latest, when his then attorney submitted an affidavit to that effect as part of another motion in this case. See Affidavit of Giles Wanamaker (Aug. 19, 1994), exh. C thereto. Similarly, the cases which were decided post Wanamaker I, and which plaintiff relies upon in support of this motion, were all decided quite some time ago and if plaintiff wanted to move for reconsideration on the basis thereof, he should have done so closer to the time those decisions were rendered. For example, one case heavily relied upon by plaintiff, Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043 (2d Cir. 1991), was decided in 1991 - more than three years before plaintiff filed this motion.

 Finally, the court also agrees with Columbian that plaintiff's motion is not timely insofar as he is making a retroactivity argument under the Civil Rights Act of 1991. That Act was signed into law on November 21, 1991, and plaintiff waited almost three years after that date to bring this motion. Perhaps, as Columbian suggests, plaintiff was awaiting the Supreme Court's decision in Landgraf v. USI Film Products, U.S. , 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), which was decided on April 26, 1994, just four months prior to when plaintiff brought this motion. The court once again agrees with Columbian, however, that plaintiff cannot rely upon the Landgraf decision to save this motion from untimeliness because as more fully explained in Columbian's opposition memorandum, Landgraf rejected the argument that the substantive provisions before the Court in that case *fn4" were retroactive. Thus, even if the timeliness of plaintiff's reconsideration motion should be judged against a reasonableness standard (a point the court concedes only for the sake of argument), under any scenario, this motion was not brought within a reasonable time after Wanamaker I. Accordingly, plaintiff's motion for reconsideration must be denied.

 II. Columbian' Summary Judgment Motion

 In three recent cases the Second Circuit has comprehensively outlined the general principles guiding the resolution of summary judgment motions in employment discrimination cases, and the court sees no need to repeat the same herein. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202-03 (2d Cir. 1995) (reiterating summary judgment standards); Goenaga v. March of Dimes Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (same); LaFond v. General Physics Services Corp., 50 F.3d 165, 171 (2d Cir. 1995) (same).

 A. Age Discrimination

 Preliminarily the court notes that because the same elements and burdens of proof apply to claims brought under the ADEA and the HRL, as have other courts when faced with age discrimination claims under both statutes, initially the court will just consider plaintiff Wanamaker's ADEA claim. See Russo v. Rogers & Wells, 91 Civ. 1371, 1992 U.S. Dist. LEXIS 19412, at *10 (S.D.N.Y. ...


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