The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Emma Munoz filed the above-captioned action against the Board of Trustees of the University of the District of Columbia ("UDC"), alleging that defendant, her employer, had violated her rights under the due process and equal protection clauses of the Constitution, federal employment law, and District of Columbia law. The Court dismissed all of plaintiff's claims. (Memorandum Opinion and Order, Dec. 3, 2008 [dkt. #15] ("2008 Partial Dismissal Order"); Order, Feb. 5, 2009 [dkt. #23] ("2009 Final Dismissal Order").) Plaintiff's appeal is now pending*fn1 (Notice of Appeal, Mar. 6, 2009 [dkt. # 24]), but plaintiff, proceeding pro se, is also seeking relief under Federal Rules of Civil Procedure 60(b)(1) and 60(b)(3). (Pl.'s Motion for Relief From Final Judgment, Jan. 21, 2010 [dkt. #27] ("Mot. for Relief").) Due to the pending appeal, which deprives the Court of jurisdiction to rule on a Rule 60(b) motion, plaintiff instead asks the Court for an order "stat[ing] either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." Fed. R. Civ. P. 62.1(a)(3). For the reasons stated herein, plaintiff's motion will be denied.
In relevant part, plaintiff's complaint included claims for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Compl. ¶¶ 60-74)*fn2 ; discrimination and retaliation in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code Ann. § 2-1401.01 et seq. (id. ¶¶ 75-68 (Counts VII-IX)); intentional infliction of emotional distress (id. ¶¶ 87-91); and deprivation of her constitutional right to procedural due process (id. ¶¶ 42-49) and equal protection (id. ¶¶ 50-55) under 42 U.S.C. § 1983.
Defendant filed a motion to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def.'s Mot. to Dismiss, Sept. 10, 2008 [dkt. # 10].) Upon consideration of the allegations in the complaint, defendant's motion and plaintiff's opposition thereto, the Court dismissed plaintiff's Title VII, DCHRA and intentional infliction of emotional distress claims, but gave plaintiff the opportunity to file an amended complaint as to her constitutional claims against UDC. (2008 Partial Dismissal Order at 7-8, 11.)
On December 15, 2008, plaintiff filed an amended complaint that was limited to constitutional due process and equal protection claims. (First Amended Compl., Dec. 15, 2008.)
In addition to restating those claims as violations of the Fifth Amendment (as opposed to the Fourteenth Amendment), plaintiff altered and added to the factual allegations of her original complaint. Plaintiff did not, however, ask the Court to reconsider its 2008 Partial Dismissal Order in light of these revised factual allegations. Defendant moved to dismiss the amended complaint. (Mot. to Dismiss, Dec. 30, 2008 [dkt. #19]; Supp. Mot. to Dismiss, Dec. 31, 2008 [dkt. #20].) On February 5, 2009, after a hearing, the Court granted the motion to dismiss and entered a final order dismissing the case with prejudice. (See 2009 Final Dismissal Order.)
Plaintiff appealed both the 2008 Partial Dismissal Order and the 2009 Final Dismissal Order. (Notice of Appeal, Mar. 6, 2009.) Then, on January 21, 2010, almost one year after the entry of the 2009 Final Dismissal Order, plaintiff filed the pending motion for relief from final judgment pursuant to Federal Rule of Civil Procedure 60(b)(1) and 60(b)(3). The Court of Appeals proceeded to grant plaintiff's unopposed motion to hold her appeal in abeyance pending this Court's ruling on her motion for relief from judgment. (Order, Munoz v. Board of Trustees, No. 09-7028 (D.C. Cir., Jan. 22, 2010) [dkt. #26].)
Federal Rule of Civil Procedure 60(b) sets forth the grounds upon which a "court may relieve a party . . . from a final judgment [or] order." Fed. R. Civ. P. 60(b). "Rule 60(b) was intended to preserve the delicate balance between the sanctity of final judgments . . . and the incessant command of the court's conscience that justice be done in light of all the facts." Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (internal quotations omitted). "But as the Supreme Court has said, '[t]here must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." Id. at 577 (quoting Ackermann v. United States, 340 U.S. 193, 198 (1950)). "Rule 60(b) cannot, therefore, be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." Id. In addition, "a party that has stipulated to certain facts or has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down." Id. To obtain Rule 60(b) relief, "the movant must provide the district court with reason to believe that vacating the judgment will not be an empty exercise or a futile gesture." Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995). A district judge is "vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion." Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988); see also Murray v. District of Columbia, 52 F.3d at 355("An appellate court's review of the denial of a Rule 60(b) motion is for abuse of discretion.")
Plaintiff seeks relief under two of Rule 60(b)'s provisions: (1) for "mistake, inadvertence, surprise or excusable neglect," Fed. R. Civ. P. 60(b)(1); and (2) for "fraud . . . , misrepresentation, or misconduct by an opposing party." Fed. R. Civ. P. 60(b)(3). Specifically, plaintiff contends that "mistakes" made by her counsel, defendant's counsel and the Court provide grounds for relief under Rule 60(b)(1) and that "misrepresentations" by defendant's counsel warrant relief under Rule 60(b)(3).
Defendant argues that plaintiff's motion is untimely to the extent it seeks relief from the Court's 2008 Partial Dismissal Order. A motion seeking relief under either Rule 60(b)(1) or 60(b)(3) must be made "no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1). Plaintiff's motion was filed on January 20, 2010, more than one year after the entry of the 2008 Partial Dismissal Order. However, because Rule 60(b) applies only to "final" judgments or orders, the one-year time limit for seeking relief under Rule 60(b)(1) or Rule 60(b)(3) begins to run only upon the entry of a final judgment or order. See Fed. R. Civ. P. 60(b) (Advisory Committee Notes re 1946 Amendment) ("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, but rather they are left ...