United States District Court, Southern District of New York
May 18, 2001
NORMAN E. BENNETT, JR., PLAINTIFF,
WATSON WYATT & COMPANY, DEFENDANT.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
Plaintiff Norman E. Bennett, Jr. brings a combined motion for
reconsideration, pursuant to Local Civil Rule 6.3, and for relief
from judgment, pursuant to Federal Rule of Civil Procedure ("Rule")
60(b). Plaintiff asks this Court to reconsider its Opinion and Order
dated March 14, 2001 which granted summary judgment to defendant.*fn1
For the following reasons, plaintiff's motion is denied.
A. Motion for Reconsideration
It is well established that a party seeking reconsideration pursuant
to Local Civil Rule 6.3*fn2 must demonstrate that the Court overlooked
controlling decisions or factual matters that might have influenced its
earlier decision. See Dellefave v. Access Temps., Inc., No. 99 Civ.
6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001) ("[T]o be entitled
to reargument and reconsideration, the movant must demonstrate that the
Court overlooked controlling decisions or factual matters that were put
before it on the underlying motion."). A motion for reconsideration may
not be used to advance new facts, issues or arguments not previously
presented to the Court, nor may it be used as a vehicle for relitigating
issues already decided by the Court. See Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995) ("[A] motion to reconsider should not be
granted where the moving party seeks solely to relitigate an issue
In determining whether a motion for reconsideration should be granted,
Local Civil Rule 6.3 "should be narrowly construed and strictly applied
so as to avoid repetitive arguments on issues that have been considered
fully by the Court." Dellafave, 2001 WL 286771, at *1. "Whether to
grant or deny a motion for reconsideration or reargument is in the `sound
discretion of a district court judge and will not be overturned on
appeal absent an abuse of discretion." U.S. Titan, Inc. v. Guangzhou Men
Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (quoting
McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
Here, the vast bulk of plaintiff's motion attempts to relitigate
arguments already considered and rejected by this Court. Rather than
pointing to factual matters or legal decisions the Court overlooked,
plaintiff argues that the Court improperly weighed the facts, wrongly
resolved conflicting facts in defendant's favor, and made impermissible
credibility determinations. Such arguments are appropriate on appeal but
not on a motion for reconsideration. Plaintiff's sole attempt to
identify an overlooked factual matter concerns the timing of his
protected activity. Plaintiff states that he complained to Jim Marple
about not receiving a raise in 1997, prior to his March 1998 performance
discussion with Betsy Ross. See Memorandum Supportive of Motion to
Reconsider at 7. According to plaintiff, his complaint to Marple was a
predicate for retaliation. See id. This argument is flawed for two
First, workplace complaints about unfair treatment do not constitute
"protected activity" which "refers to action taken to protest or oppose
statutorily prohibited discrimination." Cruz v. Coach Stores, Inc.,
202 F.3d 560, 566 (2d Cir. 2000). Therefore, complaints about remuneration
cannot serve as the basis for a retaliation claim. See Velasquez v.
Goldwater Mem'l Hosp., 88 F. Supp.2d 257, 263 (S.D.N.Y. 2000)
(plaintiff's opposition must have been directed at conduct prohibited by
Title VII) (citing Galdieri-Ambrosini v. National Realty & Dev. Corp.,
136 F.3d 276, 292 (2d Cir. 1998)). Second, the only adverse employment
action in this case was plaintiff's failure to receive a raise in 1997.
See Bennett, 2001 WL 267001, at *8 ("The only surviving adverse
employment action is the denial of a raise in 1997."). This adverse
employment action necessarily preceded plaintiff's discussion with Jim
Marple as it was the denial of the raise that prompted the discussion in
the first place. Accordingly, there can be no causal connection between
the alleged protected activity and the adverse employment action. See
Cruz, 202 F.3d at 566 ("To establish a prima facie case for retaliation,
a plaintiff must demonstrate participation in protected activity known to
the defendant, an employment action disadvantaging the person engaged in
the protected activity, and a causal connection between the protected
activity and the adverse employment action.") (internal quotation marks
and citation omitted). Plaintiff's retaliation claim is therefore
untenable and his motion for reconsideration is dismissed.
B. Relief From Judgment
The Second Circuit has stated that "Rule 60(b) is `extraordinary
judicial relief' and can be granted `only upon a showing of exceptional
circumstances.'" Dellefave, 2001 WL 286771, at *2 (quoting Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986)). See also Employers Mut. Cas. Co.
v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant under Rule
60(b) must demonstrate `exceptional circumstances' justifying the
extraordinary relief requested."). As with a motion for
reconsideration, the decision whether to grant a Rule 60(b) motion lies
in the discretion of the district court and will not be reversed on
appeal absent an abuse of discretion. See Jones v. Trump, 971 F. Supp. 783,
786 (S.D.N.Y. 1997).
Here, plaintiff fails to cite the subsection of Rule 60(b) under which
he is moving. More importantly, he has failed to proffer any exceptional
circumstances that could justify vacating the Opinion and Order.
Rather, plaintiff is again attempting to revisit issues that were
previously decided by this Court. Courts in this circuit have repeatedly
dismissed Rule 60(b) motions that simply attempt to relitigate issues and
thereby circumvent the appellate process. See, e.g., Competex, S.A. v.
Labow, 783 F.2d 333, 335 (2d Cir. 1986) ("Rule 60(b) is not a substitute
for appeal."); Hernandez v. United States, No. 99 Civ. 4303, 2000 WL
744148, at *1 (S.D.N.Y. June 8, 2000) (denying Rule 60(b) motion, noting
that "[t]he vast bulk of [movant's] argument constitutes nothing more
than a futile effort to have this Court revisit its Opinion"); Batac
Dev. Corp. v. B&R Consultants, Inc., No. 98 Civ. 721, 2000 WL 307400, at
*3 (S.D.N.Y. Mar. 23, 2000) (holding that a party "may not . . . use Rule
60(b) as a substitute for appeal or to relitigate matters already
resolved by the court adversely to that party"). Therefore, plaintiff's
Rule 60(b) motion is dismissed.
For the reasons stated above, plaintiff's combined motion for
reconsideration and relief from judgment pursuant to Rule 60(b) is
denied. Plaintiff must pursue any rights he may have in the Court of