12-3146 Whitaker v. New York University



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held 1 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2 York, on the 27 thday of November, two thousand thirteen. 3 4 PRESENT: 5 DENNIS JACOBS, 6 BARRINGTON D. PARKER, 7 DENNY CHIN, 8 Circuit Judges. 9

_____________________________________ 10 11 Barbara Whitaker, 12 13 Plaintiff-Appellant , 14 v. 12-3146 15 16 New York University, 17 18 Defendant-Appellee . * 19 20

_____________________________________ 21 22 FOR PLAINTIFF-APPELLANT: Barbara Whitaker, pro se , New York, NY. 23 24 FOR DEFENDANT-APPELLEE: Nancy Kilson, Associate General Counsel, for 25 Bonnie Brier, General Counsel, New York 26 University, New York, NY. 27

* The Clerk of the Court is directed to amend the caption to read as shown above.Appeal from an order of the United States District Court for the Southern District of New 1 York (Swain, J.). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREEDthat the order of the district court is AFFIRMED

. 4 Appellant Barbara Whitaker, pro se , appeals from a June 20, 2012 district court order 5 denying her post-judgment motion, filed pursuant to Rule 60(b) of the Federal Rules of Civil 6 Procedure, for relief from the July 2011 summary judgment in favor of New York University. 7 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, 8 and the issues on appeal. 9 We review the denial of a Rule 60(b) motion for abuse of discretion. See Johnson ex rel. 10 United States v. Univ. of Rochester Med. Ctr. , 642 F.3d 121, 125 (2d Cir. 2011). “A court 11 abuses its discretion when . . . its decision [(1)]rests on an error of law or a clearly erroneous 12 factual finding; or (2) cannot be found within the range of permissible decisions.” Id. 13 Rule 60(b) is “a mechanism for ‘extraordinary judicial relief invoked only if the moving 14 party demonstrates ‘exceptional circumstances,’” Ruotolo v. City of New York , 514 F.3d 184, 15 191 (2d Cir. 2008) (quoting Paddington Partners v. Bourchard, 34 F.3d 1132, 1142 (2d Cir. 16 1994)), and a Rule 60(b) motion is properly denied where it seeks only to relitigate issues 17 already decided. See Zerman v. Jacobs , 751 F.2d 82, 85 (2d Cir. 1984) (dismissing as frivolous 18 an appeal from the denial of a Rule 60(b) mo tion, where the appellant “continue[d] to relitigate 19 the same issue that the district court [previously ] decided”). Rule 60(b)(2) allows for relief from 20 judgment based on “newly discovered evidence” that could not have been discovered earlier 21 “with reasonable diligence.” Fed. R. Civ. P. 60(b)(2); see Boule v. Hutton , 328 F.3d 84, 95 (2d 22



### 2Cir. 2003). Rule 60 (b)(6) authorizes a district court to grant relief to a moving party for “any 1 other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “Rule 60(b)(6) relief is only 2 available if Rules 60(b)(1) through (5) do not apply . . . .” ISC Holding AG v. Nobel Biocare 3
Finance AG , 688 F.3d 98, 109 (2d Cir. 2012). 4 Upon review of the record and case law, we c onclude that the district court did not abuse 5 its discretion in denying Whitaker’s Rule 60(b) motion. We affirm for substantially the same 6 reasons stated in the district court’s thorough and well-reasoned June 20, 2012 order. The 7 evidence proffered in support of Whitaker’s Rule 60(b) motion was clearly available when 8 Whitaker filed her counseled opposition to summary judgment, and therefore was not “newly 9 discovered.” See Fed. R. Civ. P. 60(b)(2); accord Boule , 328 F.3d at 95. Similarly, in deciding 10 whether to grant summary judgment, the district court was not required to consider evidence not 11 made part of the record. Fed. R. Civ. P. 56(c)(1) (stating that a party may support its position 12 that material facts are in dispute by “citing to particular parts of materials in the record, including 13 depositions, documents, electronically stored information, . . . or other materials”); see also Fed. 14 R. Civ. P. 56, advisory committee’s notes (2010 amends.) (“Materials that are not yet in the 15 record . . . must be placed in the record.”). 16 We have considered all of Whitaker’s remaining arguments and find them to be without 17 merit. Accordingly, we AFFIRM the order of the district court. 18
FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21



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