Coleman v. Wake County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:17-CV-295-FL

ELENA COLEMAN, on behalf of minor )

child N.C., )

)

Plaintiff, )

)

v. )

) ORDER

)

WAKE COUNTY BOARD OF )

EDUCATION, and WAKE COUNTY )

PUBLIC SCHOOL SYSTEM, )

)

Defendants. )

This matter comes before the court on pro se plaintiff’s motion for relief from judgment

pursuant to Federal Rule of Civil Procedure 60(b) and motion to amend or alter judgment pursuant

to Federal Rule of Civil Procedure 59(e).1 (DE 106). The issues raised are ripe for ruling. For

the reasons that follow, plaintiff’s motion for relief from judgment or to amend or alter the

judgment is denied.

BACKGROUND

Plaintiff commenced this action on June 16, 2017. After receiving leave to proceed in

forma pauperis, plaintiff filed an amended complaint on September 1, 2017, and second amended

complaint with leave of court on March 30, 2018. Plaintiff alleged that defendants failed to

reasonably calculate and implement N.C.’s individualized education program (“IEP”), thereby

1 Also pending before the court are plaintiff’s motion for extension of time to file memorandum of law and

motion to admit exhibits into evidence. (DE 107, 108). Where the court denies plaintiff’s motion for relief from

judgment, these motions are denied as moot.

denying him a FAPE. Plaintiff also alleged defendants committed a procedural violation of the

IDEA. Finally, plaintiff alleged retaliation in violation of the Americans with Disabilities Act of

1990 (“ADA”), 42 U.S.C. § 12203, and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29

U.S.C. 794(d), arising out of enforcement of a no-trespass order prohibiting plaintiff from coming

on to any Wake County Public School System (“WCPSS”) property.

The court entered scheduling order in this case on July 2, 2018. The order directed that

each party would have 30 days after filing of the administrative record to submit objections and

amendments, and that the administrative record would be settled as of the date the court ruled on

any objections or proposed amendments. (Scheduling Order (DE 47) at 1). The court further

ordered that “[i]f either party wishes to have the court consider evidence related to [plaintiff’s

IDEA] claims that is outside of the administrative record, that party shall file a motion to that effect

no later than 30 days after the administrative record is complete.” (Scheduling Order (DE 47) at

1). Finally, the court allowed plaintiff 90 days after competition of the administrative record to

complete discovery pertaining to plaintiff’s Rehabilitation Act and ADA claims, with dispositive

motions due 30 days after the close of discovery. (Scheduling Order (DE 47) at 1–2).

On September 19, 2018, and November 6, 2018, defendants filed portions of the

administrative record of state proceedings. On November 21, 2018, and January 18, 2019, plaintiff

filed several motions seeking to amend and supplement the administrative record with numerous

additional pieces of evidence. The court disposed of these motions for the instant IDEA claims on

March 21, 2019. (Order (DE 74)). Where the administrative record was settled on March 21,

2019, any further motions by plaintiff for consideration of additional evidence should have been

filed by April 22, 2019. See Fed. R. Civ. P. 6(a)(1)(C).

After a contentious period of discovery on plaintiff’s ADA and Rehabilitation Act claims,

defendants filed their instant motions for judgment on the administrative record and motion for

summary judgment. In support of their motion for summary judgment on plaintiff’s retaliation

claims, defendants relied upon the administrative record, the documents attached to the pleadings,

testimony of Russ Smith (“Smith”), defendant Wake County Board of Education’s senior director

of security; Kimberly Grant (“Grant”), principal of Lynn Road Elementary School from July 1,

2013, to April 1, 2017; and a findings letter from the United States Department of Education Office

for Civil Rights (“OCR”).

After defendants filed their respective dispositive motions, plaintiff did not file a response

in opposition to defendants’ motion for judgment on the administrative record. However, plaintiff

did file her response in opposition to defendants’ motion for summary judgment, relying upon

voluminous documents and testimony.

On February 3, 2020, the court granted defendants’ motion for judgment on the

administrative record as to plaintiff’s IDEA claims and defendants’ motion for summary judgment

as to plaintiff’s ADA and Rehabilitation Act claims. In setting forth the standard of review for

defendants’ motion for judgment on the administrative record as to plaintiff’s IDEA claims, the

court held that it would not consider additional evidence submitted by the plaintiff in opposition

to defendants’ motion for summary judgment. The court explained that the documents proffered

by plaintiff in opposition to summary judgment were not filed until November 4, 2019, and

plaintiff failed to demonstrate good cause why this evidence was not timely submitted to the court

pursuant to its scheduling order. The court articulated a different standard of review for

defendants’ motion for summary judgment and did consider plaintiff’s evidence in opposition to

defendants’ motion when evaluating plaintiff’s ADA and Rehabilitation Act claims.

Plaintiff filed the instant motions on March 6, 2020. Plaintiff requests that the court

consider her evidence submitted in opposition to summary judgment as additional evidence in

support of her IDEA claims. Plaintiff also requests that the court consider a policy implemented

by defendant WCPSS regarding reporting teachers exhibiting abusive behavior to the state board

of education, claiming such policy is newly discovered evidence.

COURT’S DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 59(e) authorizes a district court to alter or amend a

judgment, and Federal Rule of Civil Procedure 60(b) provides for relief from a judgment. See

Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 470 n. 4 (4th Cir. 2011). A Rule 59(e) motion to

alter or amend must be filed within 28 days of the judgment, but if the motion is filed later, Rule

60(b) controls. See Fed. R. Civ. P. 6(d)(2), 59(e); MLC Auto., LLC v. Town of S. Pines, 532 F.3d

269, 280 (4th Cir. 2008) (noting that because defendant’s Rule 60(b) motion was filed within ten

days of the judgment, it was properly construed as a Rule 59(e) motion). In this case, plaintiff

filed the instant motion more than 28 days after the judgment; thus, the motion will be analyzed

under Rule 60(b).2

Under Rule 60(b), “a moving party must show that his motion is timely, that he has a

meritorious [claim or defense], and that the opposing party would not be unfairly prejudiced by

having the judgment set aside.” Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir.

1993) (quotation omitted). If a party meets these threshold conditions, “he must satisfy one of the

six enumerated grounds for relief under Rule 60(b).” Id. Those grounds for relief are

2 Like plaintiff’s motion to amend or alter judgment, plaintiff’s motion for new trial under Rule 59(a) is

untimely. See Fed. R. Civ. P. 6(d)(2), 59(b). In any addition, no trial occurred, rendering plaintiff’s motion for new

trial moot.

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier

judgment that has been reversed or vacated; or applying it prospectively is no longer

equitable; or

(6) any other reason that justifies relief

Fed. R. Civ. P. 60(b).

B. Analysis

As noted above, one “threshold condition for granting the relief is that the movant

demonstrate that granting that relief will not in the end have been a futile gesture, by showing that

she has a meritorious defense or claim.” Boyd v. Bulala, 905 F.2d 764, 769 (4th Cir. 1990). “A

meritorious defense [or claim] requires a proffer of evidence which would permit a finding for the

[moving] party.” Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808,

812 (4th Cir. 1988); United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982).

Plaintiff fails to make this threshold showing. With respect to the evidence submitted in

opposition to defendant’s motion for summary judgment, the court already considered such

evidence in disposing of plaintiff’s ADA and Rehabilitation Act claims. Relief from judgment is

likewise futile with respect to plaintiff’s IDEA claims. The affidavits of plaintiff (DE 103-1), her

husband (DE 103-2), and Fidel Kandell (DE 103-3), along with numerous exhibits, would not be

admitted as additional evidence for purposes of plaintiff’s IDEA claims, where most of this

testimony and evidence was or could have been presented at N.C.’s due process hearing. See

Schaffer ex rel. Schaffer v. Weast, 554 F.3d 470, 476 (4th Cir. 2009); Springer v. Fairfax Cty. Sch.

Bd., 134 F.3d 659, 667 (4th Cir. 1998). The affidavit of Tatiana Killingsworth (DE 103-3), along

with several other exhibits, are entirely irrelevant to plaintiff’s IDEA claims. See Fed. R. Evid.

401. The remaining exhibits which could not have submitted at the time of N.C.’s due process

hearing and which pertain to N.C.’s disability, even if believed, do not provide plaintiff with a

potentially meritorious claim.

The same is true of plaintiff’s alleged “newly discovered evidence” — defendant WCPSS

has a protocol for reporting teachers to the State Board of Education when they exhibit abusive

behavior towards a student. Plaintiff offers no explanation as to how this protocol makes any of

her claims potentially meritorious. Thus, plaintiff has failed to make the threshold showing

necessary to warrant relief under Rule 60.

Even if the court were to assume, contrary to its holding herein, that plaintiff did have a

potentially meritorious claim warranting relief from judgment, she still is not entitled to relief on

the two grounds she asserts: excusable neglect and newly discovered evidence. (Mot. for Relief

(DE 106) at 1); see Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 301

(4th Cir. 2017) (analyzing both the threshold requirements of Rule 60(b) and the permissible

grounds for relief).

In evaluating a claim of “excusable neglect,” the court considers “[1] the danger of

prejudice to the debtor, [2] the length of the delay and its potential impact on judicial proceedings,

[3] the reason for the delay, including whether it was within the reasonable control of the movant,

and [4] whether the movant acted in good faith.” In re MI Windows & Doors, Inc., Prod. Liab.

Litig.., 860 F.3d 218, 226 (4th Cir. 2017) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380, 395 (1993)); see also Home Port Rentals, Inc. v. Ruben, 957 F.2d 126,

132 (4th Cir. 1992) (“[A] party must demonstrate inter alia that he was not at fault and that the

nonmoving party will not be prejudiced by the relief from judgment.”). “[N]o factor is

dispositive,” and “inadvertence, ignorance of the rules, or mistakes construing the rules usually do

not constitute ‘excusable’ neglect.” In re MI Windows & Doors, 860 F.3d at 226; Robinson v.

Wix Filtration Corp. LLC, 599 F.3d 403, 413 (4th Cir. 2010) (“A party that fails to act with

diligence will be unable to establish that his conduct constituted excusable neglect pursuant to

Rule 60(b)(1).”). However, excusable neglect “is a somewhat ‘elastic concept’ and is not limited

strictly to omissions caused by circumstances beyond the control of the movant.” In re MI

Windows & Doors, 860 F.3d at 226.

Weighing all pertinent considerations under Pioneer Inv. Servs., plaintiff fails to

demonstrate excusable neglect. First, plaintiff significantly delayed her motion to admit additional

evidence from April 22, 2019, to March 6, 2020. (DE 108). Such delay has caused disruption to

the judicial proceedings in this case and would prejudice defendants by requiring them to relitigate

their dispositive motions. Second, plaintiff’s copious filings indicate she generally was aware of

her obligation to file motions to amend or supplement the administrative record, undermining her

assertion of good faith for the delay in filing the motion. (See DE 58, 69, 70, 71). Third, plaintiff’s

purported reason for the delay — inadvertence based on her pro se status — was within her

reasonable control by reading the court’s scheduling order and understanding the deadlines

imposed in this case. (See DE 47). Accordingly, plaintiff’s neglect in failing to file a motion to

consider additional evidence is not excusable.

“[T]he standard governing relief on the basis of newly discovered evidence is the same

whether the motion is brought under rule 59 or rule 60.” Boryan v. United States, 884 F.2d 767,

771 (4th Cir. 1989). For relief from judgment to issue, a party must show:

(1) the evidence is newly discovered since the judgment was entered; (2) due

diligence on the part of the movant to discover the new evidence has been

exercised; (3) the evidence is not merely cumulative or impeaching; (4) the

evidence is material; and (5) the evidence is such that is likely to produce a new

outcome if the case were retried, or is such that would require the judgment to be

amended.

Id. (citations omitted).

Crediting plaintiffs assertion that she discovered the policy of defendant WCPSS

regarding reporting abusive teachers after entry of judgment, (Mot. for Relief (DE 106) at 2),

plaintiff fails to show that such policy could not have been discovered with due diligence on

plaintiff's part during the discovery period. Plaintiff also fails to show that such evidence is

material to her claims, or that the policy is likely to produce a new outcome on her claims.

Accordingly, plaintiff’s attempt to introduce evidence of the policy of defendant WCPSS is not

newly discovered evidence warranting relief from judgment.

CONCLUSION

Based on the foregoing, plaintiff's motion for relief from judgment (DE 106) is DENIED.

Plaintiffs motion for extension of time to file memorandum of law (DE 107) and plaintiff's motion

to admit exhibits into evidence (DE 108) are DENIED AS MOOT.

SO ORDERED, this the 12th day of May, 2020.

United States District Judge