United States District Court, E.D. Missouri, Eastern Division
ROBERT L. SLACK, Plaintiff,
MARK T. ESPER, Secretary of the Army, Defendant.
MEMORANDUM AND ORDER
C. COLLINS, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's pro se
Motion for Reconsideration (Doc. 27). Defendant opposes the
Motion (Doc. 28). The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. 636(c)(1) (Doc. 22). For the
following reasons, Plaintiff's pro se Motion for
Reconsideration (Doc. 27) will be DENIED.
October 10, 2017, pro se Plaintiff Robert L. Slack
(“Plaintiff”) filed this action pursuant to the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et seq., for age discrimination
and reprisal (Doc. 1). On or about May 21, 2013, Plaintiff, a
former Towboat Operator with the United States Army Corps of
Engineers' (the “Agency”) Rock Island
District, was not selected for the position of Towboat
Operator XH-5704-08 (the “Position”) (Doc. 1 at
3; Doc. 21-2 at 1). Plaintiff previously filed suit in this
Court against the Agency regarding his nonselection for a
March 2010 Towboat Operator Position with the Agency. On June
7, 2017, the Honorable Jean C. Hamilton entered judgment in
favor of the Agency. Plaintiff's appeal of the
Court's decision to the Eighth Circuit Court of Appeals
was dismissed on March 13, 2018. See Robert Slack v.
Robert M. Speer, No. 4:15-cv-01853-JCH, 2017 WL 2462496
(E.D. Mo., June 7, 2017). On October 2, 2018, the undersigned
granted Defendant's Motion to Dismiss or, Alternatively,
for Summary Judgment and dismissed the current action with
prejudice (Doc. 25)
November 2, 2018, Plaintiff filed an undated letter that the
Court construed as a Motion for Reconsideration of the
Court's October 2, 2018 Order dismissing this case (Doc.
27). In his letter, Plaintiff indicates that there were a
“large number of internal documents that were kept from
me for a period of nearly six years despite being requested
in October, 2011” (Id. at 1). In support of
this claim, Plaintiff purports to provide the Court with his
request of these documents dated October 29, 2011 but also
directs the Court to his previously filed exhibits to his
response in opposition to Defendant's Motion to Dismiss
or, Alternatively, for Summary Judgment (Doc. 27 at 1;Doc.
27-3). As exhibits to his response, Plaintiff attached the
reference list dated October 13, 2009 indicating the
selection of David Heye for a 2009 position, also attached as
exhibit A to the current Motion, and Mr. Heye's
subsequent email declining the position (Doc. 23-1; Doc.
27-1). Plaintiff also indicates that he has provided the
“perjured testimony of management official Robert M.
Schoen” for the Court's review and attaches Mr.
Shoen's January 27, 2011 declaration regarding
Plaintiff's nonselection for the March 2010 position
(Doc. 27-2). Of note, Plaintiff repeatedly refers to Judge
Hamilton (See Doc. 27). Finally, Plaintiff asserts
that he was not made aware of Defendant's reply in
support of the Motion to Dismiss or, Alternatively, for
Summary Judgment and provides a copy of an email, regarding
the potential nonreceipt of the reply, sent by defense
counsel on October 11, 2018 to Plaintiff apologizing for any
potential error, resending the document via email, and
indicating that the document would also be resent by mail
(Doc. 27 at 1; Doc. 27-3). Plaintiff seeks “reasonable
time to prepare a complete reply to the court” and full
review of “any and all new evidence” (Doc. 27 at
2). Plaintiff ultimately requests the Court “rescind
the dismissal of [his] case, pending the production of
supporting documents” (Id.).
did not frame his motion under the Federal Rules of Civil
Procedure, but it can be considered the functional equivalent
of a motion under either Rule 59(e) or 60(b). Rule 59(e)
motions “serve a limited function of correcting
‘manifest errors of law or fact or to present newly
discovered evidence, '” and allow a court to
correct its own mistakes in the time immediately following
judgment. United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting
Innovative Home Health Care, Inc. v. P.T.-O.T. Associates
of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998)). Such motions cannot be used to introduce new
evidence, tender new legal theories, or raise arguments that
could have been presented prior to judgment. Id.
Rule 60(b) allows the court to relieve a party from a final
judgment for, among other reasons, mistake, inadvertence,
surprise, or excusable neglect. MIF Realty L.P. v.
Rochester Associates, 92 F.3d 752, 755 (8th Cir. 1996).
It “provides for extraordinary relief which may be
granted only upon an adequate showing of exceptional
circumstances.” U.S. Xpress Enterprises, Inc. v.
J.B. Hunt Transport, Inc., 320 F.3d 809, 815 (8th Cir.
2003) (internal citation omitted).
has not identified any manifest errors of law or fact nor has
he presented any newly discovered evidence warranting
reconsideration under Federal Rule of Civil Procedure 59(e).
Plaintiff also has failed to establish exceptional
circumstances warranting extraordinary relief pursuant to
Federal Rule of Civil Procedure 60(b). By his own admission,
the evidence he appears to present to the Court was initially
uncovered sometime in 2017 (See Doc. 27 (indicating
that Plaintiff received the discovery in July 2017, that his
attorneys received it in February 2017, and that he
“never saw it until Judge Hamilton  ruled” in
June 2017). Regardless, upon a complete review of the
documents provided by Plaintiff, which do not appear to
relate to the 2013 nonselection before the undersigned, the
Court finds no reason to alter or amend its prior judgment.
To the extent Plaintiff suggests he did not receive
Defendant's reply in support of the Motion to Dismiss or,
Alternatively, for Summary Judgment, the Court finds this
argument unprevailing. First, although defense counsel
responded via email and apologized “if there was an
error on our end, ” in the reply brief counsel
certified that the document was service sent to Plaintiff
both via mail to his home address and via email (See
Doc. 24 at 5). Nevertheless, Plaintiff would not have been
entitled to file a sur-reply without leave of Court.
IT IS HEREBY ORDERED that Plaintiff's
Motion for ...