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MARTIN v. CHEMICAL BANK

September 16, 1996

SHEILA MARTIN, Plaintiff, against CHEMICAL BANK, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiff brought this action claiming that she was discharged from her employment as a legal secretary by defendant Chemical Bank on the basis of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). The Court granted an oral motion to dismiss as to the three individual defendants, employees of Chemical Bank, prior to trial on the ground that such individuals are not subject to suit under the ADEA in light of Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Following a seven-day trial, the jury returned a verdict for the remaining defendant, Chemical. Judgment was entered on August 28, 1995. No appeal was perfected.

 By motion dated June 7, 1996, plaintiff, who was represented by counsel at trial but who now proceeds pro se, seeks an order vacating the judgment pursuant to FED. R. CIV. P. 60(b). The principal points advanced are that:

 1. Many of the documents and witnesses listed by plaintiff in the pretrial order were not received in evidence, partly as a result of her counsel's decisions not to offer them in evidence and partly as a result of evidentiary rulings by the Court.

 2. The defendant allegedly made inappropriate references at trial to plaintiff's mental status and medical history, supposedly in violation of a pretrial order by Magistrate Judge Bernikow.

 3. Plaintiff's trial counsel failed adequately to represent her in that he allegedly (a) did not show plaintiff copies of defendant's exhibits, (b) falsely told plaintiff that one of her prospective witnesses, Ms. Nunez, did not wish to testify in her behalf, (c) refused to advise the Court that plaintiff wished to speak personally with the judge presiding at trial, (d) improperly failed to pursue settlement of the case, and (e) misrepresented his experience to plaintiff.

 4. Certain of defendant's witnesses gave false testimony.

 5. One of plaintiff's witnesses, Ms. Strong, failed to appear at trial despite service upon her of a subpoena.

 6. The trial court erred in dismissing as to the individual defendants.

 Discussion

 As Rule 60(b) "allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). It "may not be used as a substitute for a timely appeal." Id. Relief pursuant to Rule 60(b), moreover, must be sought without undue delay. See Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987). Plaintiff's motion is readily disposed of by application of these guiding principles.

 Tactical Decisions and Other Actions of Trial Counsel

 Many of plaintiff's complaints reflect dissatisfaction with her trial counsel: his failure to offer certain evidence, his alleged failure to communicate to the Court plaintiff's desire for a personal conference, his alleged failure to pursue settlement on bases the plaintiff now ...


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