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w . v i l l a no va . e du/thir dc ir c uit_2005/1567NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No . 04-2278
SHERYL JAMES Appellant
v. VIR GIN I SLANDS WATER AND P OWER AUTHORI TY;

JAMES MATTHEW
On Appeal from the Distri ct Court of

the Virgi n Islands (D .C. N o. 01-cv-00148 ) Distri ct Judge: Honorable Raymond L. Finch, Chief Judge

Argued December 14, 2004 Bef ore: SLOVITER , FUENTES , and GREENBERG , Circu it Judges
. (Fil ed: January 12, 2005) Lee J. Rohn K. Glenda Cameron (Argued) Law Offices of Lee J. Rohn Ch ristiansted , St. Cro ix U.S. Virgi n Islands Attorney s for Appell ant Lorelei Farri ngton-Watson2 Ishmael A. Meye rs, Jr. (Argued) St. Thomas U.S. Virgi n Islands Attorney s for Appell ees

OPINI ON OF THE COURT

FUENTES , Circuit

Judge
.

Sh er yl James brought

suit under Title VII, among other things, against the Virgin I slands Water and Power Authority and James Matthew for cla ims ari sing out of the sexualharassment

she alle ges to ha ve su ff

er ed whi le emp lo y ed at th e Po wer

Au thori ty. The def end ant s f

il ed amot io n t o di smi ss t he suit and, after recei ving two extensions to oppose the moti on, James failed to file any opposition. The moti on to dis miss was eventually granted by the District Cou rt and J ame s did n ot app eal. Almost one y ear aft er the motion was granted, Jam es mov ed, unde r Rule 60 (b), for rel ief from the judgment , argui ng that t he District Cou rt a pplied t he wrong standar d in dis missi ng her claims. The Court deni ed the motion, in part

because i t found that Ru le 60(b ) cou ld not serve as
a subs titu te for a ppeal fr om the judgment of di smissal . James3 appe als the deni al of her Rule 60(b) moti on. Becau se we agree with the District

Court that such a motion cannot se rve t o correct legal error, at le as t a ft erth e t ime for app ealhas ru n, we wi llaff irm. I. Sher yl J ame s wa s hired and b egan wo rk w ith the V irgin Is lands Water and Power Authori ty(the “Power Authority ”) on March 27, 1 998
. Defendant James Matthe w (“Matthew”) was her supervi sor at all ti me s rele van t to th is ca se. James all eges that, on
o r about October

1998, Matthew made sexualadvances t ow ard s her. After she communicated to him that the advan ces we re unwelcome, she all eges that he ret a liated b y ceasing all communicati ons with her , verbal ly abusing her in the presence of others, and ta mp ering w ith her tim e she ets to depri ve her of payfor the full t

ime that she worked. She c ompl ained t o the Power Au thority abou t this con duct o n sev eral oc casion s, but sh e asse rts that nothing was done to amelior ate the sit uation. How ever, t

he Power Authority di d a ttemp t t o hold a hearing on September 6, 2000 to clari fy t

he matter , but J ames apparently walked out of the meeting because she found i t unaccept able t o have to d iscuss the charges in M atthew ’s pres ence . Finally, the P ow er A utho rity4 terminated her on December 1, 2000. James fi le d a c omp la in t wi th the EEOC. The EEOC was unab le to dete rmine that a Tit le VI I violatio n w as co nclus ively establ ished, and sent J ames a right -to- sue let ter. On August 30, 2001, James co mmenced suit in the Distric t Cou rt of the Virg in Is la nds against

the Power Authori ty and Matthew (herei nafter collec tively referr ed to as the “Authority”) for vari ous int entiona l torts, neglige nce, sl ander, and breach of cont ract . On M arch 4, 2002, t he A utho rity filed a m otion to dism iss the su it and, in th e alte rnati ve, a mo tion fo r sum mary jud gm ent. Ja mes re ce iv ed two extensi ons to her tim e to res pon d to the motion becaus e her attorney wa s struck with seve re hea lth problems and adeath i n the attorney’s loved-one’ s family . In bot h grants of exten sion, the M agistrate Judge made clear that he w as u nwilli ng to exte nd further th e ti m e f or op po sit io n. A cc or di ng ly, the M agistrate Judge refused t o grant a t

hird extension, the request for which was filed
one day after James’ response was due. James moved fo r reconsi derati on of the re fusal to grant t he third extensi on but the M agistrate Judge re af fir m ed hi s d ec isi on . F in all y, on February20, 2003, the Distri ct Court gr anted the Authority’ s motion to dismiss1 No ta bl y, James’ non-federal claims were dismissed for lack of suppleme ntal juris diction a

nd have b een re- filed in Territor ial Court. 5 in its en tire ty, dismis sing anyand all Ti tle VIIclai ms and refusi ng to exerci se supple mental j urisdi ction ove r the l ocal c laims. 1 The Cou rt noted that the “ plaintiff carr ies the ini tialburden of establ ishi ng a prima faci e case of unl awful sex dis crimination” and concluded that Jam es ha d “no t attemp ted to make such a showing” and that s he “not only

fail [ed] to s et for th fa cts in sup por t of th e . . . elem ents of aTitle VII cl ai m, [she] fai l[ed] to set forth any alle gations or clai ms whatsoever pur suant t o Titl e VII.” App. of Appellant

at 151-52. On Febru ary 19, 20 04, Ja mes filed a Ru le 60(b ) mo tion in the District Cou rt for reli ef from judgment, one day be fore the oneyear dead line fo r filing m otions und er Ru le 60(b )(1)-(3) wo uld have expired. The motion reques ted that the di smissalof the case be s et as ide under Rul e 60(b)( 1) because i t was a res ult of t he mistake, inadv ertenc e, or ex cusa ble ne glect o n the p art of b oth sides’ attorne ys and th e Co urt for not c onside ri ng the S upr eme Cou rt’s decisi on in Swi erki ewi cz v. Sorema , N .A . , 53 4 U.S. 506 (2002). Alternat

ive ly , the motion sought the same re lief

under Ru le 60(b)(6) in the interests of justice. The Distri ct Court de nied6 the motion, noting t

hat James failedto off er a co mp elling re ason to reopen the case , and suggesti ng that t he correc t avenue to chal lenge the correctness of the dismiss wa s thro ugh app eal. Jam es ap peals the deni al of her

Rule 60(b) moti on.

II. Ru le 60(b ), in relev ant pa rt, reads, “ [o]n mo tio n and upon such terms a s ar e just, the court ma y relieve a party or a party’s legal repres entative from a fi nal judgment , order , orproceedi ng for the following reasons: (1) mist ake, i nadverte n ce , surprise , or
excu sable neglect ; . . . or ( 6) any ot her reas on justify ing rel ief from the o per ation of th e jud gm ent.” Fed . R. C iv. P . 60( b). James contends t

hat the Distri ct Judge failed to conduct the required excusable neglect analy sis and t

hat thecase shoul d be
revers ed and remanded on that g rou nd. See In re Cendant Corp. PR IDES Liti g. , 235 F.3d 176, 182 (3d Cir. 2000) (fi nding tha t “[o]n [a party’ s] Rule 60( b) motion, the Distric t Cou rt shou ld prop erly have entertained an analysis of the factors [fr om Pioneer Inv. Serv s. Co . v. Bru nsw ick A ssocs . Ltd. P ’ship , 5 07 U
. S . 380 (1993)] cons tituting ‘e xcus able n eglec t’ to dete rmine whether [the pa rty] had met them. To fail t o do so is a f ailure on the part of t

he7 Distri ct Cou rt to pro perly app ly the law to the f acts of this case and provides grounds for reversalon the basis of abuse of discretion.”). U nd ou bt ab ly, the C ourt d id not consider any of t he Pioneerfactors in rejec ting her

Rule 60(b)( 1) motion. However, unlikein Cendant , in whi ch the district court failed to conside r the factors bef ore finding that t

he neglect

proffered by

the movantwa s not e xcus able (and therefore co nducted an i nsuffici ent excusable negl ect analysis), here the District Cou rt fou nd it un nece ssary to en gage in the e xcusable neglect analy sis at al l. The District Court’s o rde r explai ning its denia l of R ule 60 (b) relief sugg ests th at the J udge found both (1) that the error of law alleged by Ja mes wa s not in fact er ror and (2) that the al leged negl ect was not of the char acter cogn izable under Rul e 60 (b). See App. of Appellant at 275-77. We consider the latter reason first , as i t rel ates to the gener al propri et y of the mo tion rath er than its merits. H ow ever, it is necessary to parse James’ allegations of m istake or neglec t before proceeding any further in t he analysi s.

A. James’ Contentions of Mist ake or Neglect James cites , as n egle ct or mis take , a llege d e rrors by the2 Thelatter contention is, of course, irrelev ant tothe merits of the Rule60(b) m otion, as consid eration of that issue is the purpose of this appeal. 8 Distri ct Cou rt, opposing co unsel, and h er own coun sel. W ith respect to the Court , James s tate s that it er red in not

considering Swierkiewicz and in not properlyanaly zing the Rul e 60(b) moti on. 2 This “neg lect” as cribed to the Court i s an all egati on of pure le gal error, in app lying the in correc t standa rd to James’ pl eadings. She also contends t

hat the Magistrate Judge err ed in d en ying James a third extensi on on the ti me to file her o ppo sition to th e mo tion to dismiss. The “neglect ” of the Magist rate J udge ca nno t fairl y be charact erize d as err oneous, as he denied the exten sion a s an exercise of discr etion, and had previous ly noted (when granti ng the precedi ng extensi ons) that he was unwill ing to furth er exte nd the ti me and tha t eve n th e se con d ex tens ion “pu she [d] the li mits .” App. of Appellant s at 42 n. 1. James conc edes that the deni al of the extensi on a nd the ref

usal t o accept t

he lat e fil ing were withi n the M agistrate Judge’s di scretion. See, e. g. , Rep ly Br. of Appell ant at 23. James fault s opposing coun sel in not cit ing to Swierkiewicz in her m otion to dism iss, noti ng th at att orne ys have a duty to c ite9 control ling precedent , inc luding precedent cont rar y to th ei r o wn arguments. Opposing counsel ’s al leged “negl ect” i s not a ctually neglect at all, in that th e corre ct stand ard w as cited . In its brief in support of its motion t o dismis s, the Authority does not cite to any heighte ned pleadi ng standar d. In fac t, t he brief ci tes the liber al Rule 8 standard, and thus comport s with Swierkiewicz , obviating the nee d to actu ally cite the d ecis ion
. See App. of Appellant

at 23. Fi na lly, Jam es de scribe s her c oun sel’s erro r as fa iling to meet the de adline for filin g her opp osition to the moti on to dismiss and fail ing to apprise t he District Court

of Sw ierk iewicz
. The failure of James’ coun sel to file timely op positio n to the mo tion to dismiss would qualif

y as neglect , meri ting t he Pio neer an alysi s. Cf. Lore nzo v . Griff ith , 12 F.3d 23, 27 (3d Cir. 1993) (employ ing
excu sable neglect

analy sis i n the cont ext of a failu re to file timely discovery request s). However, James does not adequatel y al lege
counse l’s fail ure to fi le o ppo sition as an i ndependent gr ound for reli ef from the fai lure to cite Swierkiewicz
. James’ argu men ts with respect to counsel ’s negl ect al l refe r to t he cons equenc e of the mistake as not pr oviding the Court with t he correc t st andard by which to j u dge the m otion. Ho wev er, as noted, the A uthority’s10 motion papers co rrectly describe the standard. In add iti on, the Distri ct Court’s de nial of James’ Rule 60( b) motion makes it cl ear that the Court be lieve d that i t appli ed the correct st andard and that it did not dismiss the case as a direc t res ult of t he lack of oppos iti on from J am es. Therefore, it appe ars that James i s not offering the failure to fil e opposition as an i ndepen d ent ground to grant relie f from judgment, but rather as a notherreason why the Court made
an erron eous ruling. T his idea is reinfo rced b y James ’ statem ents that “[s]he m ade a timely M otion for R elief from O rder up on learni ng that she had g roun ds,” B r. of A ppella nt a t 17, and that “she could not ha ve brought t he error to the c ou rt’ s attention any earli er because her coun sel failed to recog nize the error u nt il
rece ntly,” App. of Appellant at 250. These statements cl early point to the failure of the Cou rt to consider Swi erki ewi cz as the tr ue error, and d irectly imply that counsel would not have cited that case in her o ppo sition to th e mo tion to dismiss (as she w as unaw are of it at that tim e). Ca st in that li ght, the fa ilure to f ile opp osition is not, by its elf, a stated ground for gr anting relie f. B. The Signifi cance of Legal Error Under Rule 60(b) As noted above, James’ contention of neglect is that the11 Distri ct Court app lied the wrong standar d in granting the Autho rity’ s mo tion to dismiss. Accordingly , beforeaddressi ng the merits of this clai m, we must decide whether such a c ontenti on of legal error

can support

a Rule 60(b) motion. This Co urt has stated th at a “R ule 60(b) motion may not be used as a substitute for an appeal, and that legal error, withou t more does not warrant

reli ef under that provi sion. ” Un i ted States v. Fiore lli , 337 F .3d 282, 28 8 (3d C ir. 2003) (quotation om itted); accord Smith v. Evans , 853 F.2 d 15 5, 15 8 (3 d C ir. 19 88)
. As James point s out, the prec ise bounds of this prohibi tion in the c ont ext o f R ule 6 0(b )(1) a re u ncle ar. In Page v. Schweiker , 786 F.2d 150, 155 & n.3 ( 3d Cir. 1986) , this Court set forth the positions of t

he o th erci rc ui ts on thi s i ss ue: “s ome cour ts hav e held that legal err or w ithout m ore ca nno t be co rrected und er Ru le 60(b)[, o]ther s have held t hat le gal error may be c haract erize d as ‘mist ake’ within t

he meaning of Rule 60(b)( 1), but only where the motion is made
. . . within t he time al lowed for appeal .” Page , 786 F.2d at 154 -55 (c ita ti ons omi tted). The Co urt noted that t hese positions were justifie d “under well -est ablis hed pri nciple s [that] Ru le 60(b) i s not a subs tit ute for an appeal” and explai ned that3 James argues that she should not be penalized for

failing to raise Swierkiewicz until afte

r time for ap peal had run, because her counse l failedto discove

r the caseuntil then. SeeApp. of Appellant at 227-28, 248. This actuall y u ndermines her argument, as it suggests that the proper avenue for the relief tha t she seeks would be an a ppeal, but that it was too late to

file an a ppeal so she is try

ing to use Rule60(b). T

his sort of be havior isprecise

ly w hat the r ules above attempt

to curta il. 12 “[w]e re the rul e other wis e, the time l imit ations on appeal se t by Fed.R.App. P. 4(a) , and on moti ons to al ter or amend judgmen ts under Fed.R.Civ. P. 59(e) , would be vi tiated.” Id. at 154. How ever, because the Court dec ided P age on o ther gr oun ds, it stated that “[t]his court has yet to decide this i ssue, and we do not do so n ow .” Id. at 15 5 (f oot not e om itted ). Jam es arg ues th at Page leaves open the possibili ty that l egal error may be corrected under Ru le 60(b)(1). The language in Fiore lli and Evans with respe ct to legal error and Rule 60(b), however, appears t o forecl ose th is argu men t. At m ost, Page could be read to allow for the poss ibility that legal error

could be addresse d under Rule 60(b) (1) i f a motion is made before the time for appeal has run. Here, J ames’ moti on
was file d well aft er the e xpiration of the w indow for appeal , and theref ore Rule 60(b) (1) offer s her no re lief
. 3 There is abso lutely n o amb iguity over whe ther Rule 6 0(b)( 6 ) may be used to cor

rect l ega l error. This Co urt has uneq uivo cally13 stated that “ ‘[s]i nce legal error can usua lly be corre cted o n app eal, that factor without more doe s not j usti fy t he gran ti ng of reli ef under Rule 60(b)( 6).’ ” Pridgen v. Shannon , 380 F.3d 721, 728 (3d. Cir. 2004) (quoti ng Ma rtinez-Mc Bean v. Gov ’t of V.I. , 562 F.2d. 908, 912 (3d C ir. 1977 )); Page , 786 F.2d at 155 n. 3. Ther efore, neithe r Rul e 60 (b)(1) nor Rule 60(b) (6) can pr ovide James t he relief that she desires. III. For the rea sons dis cussed above, we agree with the District Cou rt that Rul e 60(b) i s an improper vehicl e for James to present her legal challenges t o the C ourt’s dismissalof her claims. A cc or di ng ly, we will af firm th e D istrict Co urt’s de nial of the R ule 60(b) moti on.