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United States District Court, Southern District of New York

April 24, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge


By order dated February 14, 2003, this Court granted defendants' motion for summary judgment dismissing the amended complaint, noting inter alia that plaintiff had not responded to the motion and, in consequence, that the allegations set forth in defendants' Rule 56.1 Statement were deemed admitted. Plaintiff now moves, pursuant to Fed.R.Civ.P. 60(b), to vacate the February 14 order and the judgment entered thereon solely on the ground that plaintiff's failure to respond to the motion was the product of excusable neglect. Pl. Mem. passim.

Defendants acknowledge, at least tacitly, that plaintiff's failure to submit papers in opposition to the motion was excusable neglect, that he acted in good faith, and that there would be no undue prejudice. They resist the motion, however, on the ground that plaintiff has failed to demonstrate that he has a meritorious claim. Def. Mem. 1. Plaintiff acknowledges that a showing of merit is required of one seeking to open a default judgment but he contends that this was not a default judgment and therefore rejoins that he has no such burden. Pl. Reply Mem. second page.*fn1

The Second, Fourth and Fifth Claims for Relief This contretemps is entirely immaterial with respect to at least three of the claims in the amended complaint. The fourth and fifth claims were dismissed as a matter of law and the second on the alternative grounds that the plaintiff neither alleged nor offered evidence that the rejection of his application by the Pension Plan was arbitrary and capricious. In other words, the second, fourth and fifth claims for relief are legally insufficient. Opening the judgment for the purpose of reinstating claims that must be dismissed on their face in any event would be entirely pointless.

The First Claim for Relief The first claim for relief is time barred on its face, as plaintiff there seeks to recover overtime allegedly due in the period ending June 30, 1998 and the action was not commenced until more than three years after that date. The complaint sought to avoid the bar of the statute on the basis of equitable tolling by alleging that defendants misled him in unspecified ways regarding, inter alia, his entitlement to overtime pay. Am. Cpt. ¶¶ 83-84. Without considering the legal sufficiency of the equitable tolling allegations, the Court dismissed this claim as time barred because defendants' Rule 56.1 Statement alleged — and plaintiff's default effectively admitted — that plaintiff was represented by counsel in June or July 1998 in connection with the negotiation of an employment contract with one of the defendants. In view of his "complete access to full information regarding his legal rights under the statute," the Court held that the undisputed facts "foreclose[d] equitable tolling in this case." Order, Feb. 14, 2003, ¶ 1.

Plaintiff's papers in support of the present motion expressly admit the fact that the Court previously deemed established by his failure to respond to defendants' motion for summary judgment. He states that he "had retained previously retained counsel, [albeit] . . . solely for the purpose of negotiating his employment contract with the defendants, not for the purpose of commencing action against them." Pl. Mem. 11. The limited scope of the retainer, he contends, precludes a determination that equitable tolling is unavailable to him, at least in light of the alleged affirmative misrepresentation by the defendants.

It is highly doubtful that plaintiff's equitable tolling claim will survive. The allegations of deception do not comply with Fed.R.Civ.P. 9(b). It is questionable as a legal matter whether his contention concerning the limited scope of his retainer of counsel is material. Nonetheless, bearing in mind that not much is required to render a claim "meritorious" for Rule 60(b) purposes, see Moore's Federal Practice § 60.24[2] (2000), the Court assumes that any required showing has been made and will exercise its discretion to vacate so much of the judgment as dismissed the first claim for relief.

The Third Claim for Relief The Court dismissed the third claim for relief on the ground that defendants' Rule 56.1 Statement established, in light of plaintiff's default on the motion, that the decision not to renew plaintiff's employment contract antedated by months his application for ERISA benefits and thus could not have been in retaliation for that application. Order, Feb. 14, 2003, ¶ 3; Def. Rule 56.1 So. 7. Plaintiff now points out that the amended complaint alleged that plaintiff made it know to defendants around September 2001 that he would sue under ERISA, an event that predated the alleged termination decision by approximately four months. Again, while it appears that plaintiff is unlikely to prevail on a retaliation claim where the temporal gap is so large and there appears to be no other evidence of retaliatory animus, the Court believes that this claim is "meritorious" in the very limited and specialized sense relevant here.


Plaintiff's motion to vacate the judgment entered February 26, 2003 and the order dated February 14, 2003 is granted to the extent, and only to the extent, that so much of the judgment and order as dismissed the first and third claims for relief in the amended complaint are vacated and the action reinstated to the calendar. This is without prejudice to any motion by defendants addressed to those claims.


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