                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 15, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    MARK DUHALL,

                Plaintiff-Appellant,

    v.                                                  No. 09-1405
                                            (D.C. No. 1:07-CV-00040-REB-BNB)
    LENNAR FAMILY OF BUILDERS,                           (D. Colo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH, Circuit
Judges.



         Plaintiff-appellant Mark DuHall, who describes himself as a black man

born in Africa, brought this action against defendant Lennar Family of Builders

(Lennar) in connection with his purchase from Lennar of a house in Colorado

Springs and his extensive attempts to get Lennar to fix the defects in the house.

In his complaint, Mr. DuHall described his efforts to have Lennar repair the


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
problems in his new house, particularly problems involving a faulty furnace and a

defective handrail. He alleged that a Lennar employee, Jeff Gerhard, repeatedly

ordered the wrong materials and made disparaging racial remarks to him.

Ultimately, when he got no satisfaction from the Lennar employees in Colorado

Springs, Mr. DuHall contacted Lennar headquarters in Houston, Texas. No one

from the Houston office responded, but Mr. DuHall did talk with Brian Sorsby in

the Denver office. Mr. Sorsby eventually sent Mr. DuHall a check for $5000 as

part of a settlement agreement between the parties. Despite the settlement,

Mr. DuHall filed this action alleging that Lennar’s repeated failure to fix the

problems caused him considerable economic damage. Mr. DuHall’s complaint

asked for relief under 42 U.S.C. §§ 1981, 1981a, and 1988 and 29 U.S.C.

§ 216(b), of the Fair Labor Standards Act (FLSA).

      The district court disposed of this case in two separate orders. In its

April 22, 2008, order, the district court dismissed the 42 U.S.C. § 1981a claim for

failure to state a claim upon which relief can be granted because that statute “only

prohibits intentional discrimination in employment” and Mr. DuHall had not

alleged that his employer had discriminated against him on account of his race.

R. Vol. 1 at 231. Similarly, because Mr. DuHall did not allege an

employer-employee relationship between himself and Lennar, the district court

adopted the recommendation of the magistrate judge and dismissed the FLSA

claim as well.

                                         -2-
      In a second order dated August 10, 2009, the district court granted

summary judgment to Lennar on Mr. DuHall’s remaining 1981 claim. R. Vol. 2

at 201. 1 Mr. DuHall’s postjudgment motions were denied on November 3, 2009. 2

      Our jurisdiction arises under 28 U.S.C. § 1291. “We review the district

court’s grant of summary judgment de novo, applying the same standard used by

1
      Because Mr. DuHall’s § 1981a and § 1981 claims failed, his § 1988 claim
implicitly failed as well.
2
       On September 10, 2009, Mr. DuHall filed an “Informal Brief of Petitioner”
in the United States Court of Appeals for the Federal Circuit to which he attached
a copy of the district court’s August 10, 2009, order and in which he challenged
the district court’s ruling. Pursuant to Fed. R. App. P. 4(d), the Clerk of the
Federal Circuit Court transmitted Mr. DuHall’s document to the Clerk for the
United States District Court for the District of Colorado noting that it had been
received at the Federal Circuit on September 10, 2009. The district court
construed the filing as a notice of appeal and transmitted it to this court for
docketing. Mr. DuHall then filed an amended notice of appeal.

       At the time the notice of appeal and the amended notice of appeal were
filed, Mr. DuHall’s postjudgment motions remained pending in the district court.
When the district court disposed of those motions in its November 3 order, the
notice of appeal became effective to appeal the August 10 order. See
Fed. R. App. P. 4(a)(4)(B)(i).

       As for appealing the denial of the postjudgment motions, although
Mr. DuHall did not file a new or amended notice of appeal challenging the
November 3 denial of those motions, see Fed. R. App. P. 4(a)(4)(B)(ii), he did
submit a document to this court captioned “Petition for Permission to Appeal”
which referenced the November 3 order. Further, Mr. DuHall’s brief on
appeal was filed within thirty days of the November 3 order. Under these
circumstances, we will construe Mr. DuHall’s filings as a notice of appeal under
Fed. R. App. P. 3 that is sufficient to comply with Fed. R. App. P. 4(a)(4)(B)(ii)
thus allowing this court to review the district court’s November 3 order.
See Smith v. Barry, 502 U.S. 244, 245 (1992) (holding that “a document intended
to serve as an appellate brief may qualify as the notice of appeal required by
Rule 3”).

                                        -3-
the district court.” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005)

(quotation omitted). Thus, we will affirm “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c)(2). An order denying a postjudgment motion is

reviewed for an abuse of discretion. Jennings v. Rivers, 394 F.3d 850, 854

(10th Cir. 2005).

      Turning to the merits of this appeal, we address Mr. DuHall’s issues in the

order in which he presents them in his brief. Mr. DuHall first argues that he has

grounds for relief from a final judgment under Fed. R. Civ. P. 60(b)(2). That rule

allows relief from a final judgment when there exists “newly discovered evidence

that, with reasonable diligence, could not have been discovered in time to move

for a new trial under Rule 59(b).” Mr. DuHall’s “new” evidence consists of an

affidavit from a witness who was present when Mr. Gerhard’s racist remarks were

made, an affidavit from a doctor regarding the effect defendant’s conduct had on

Mr. DuHall’s health, and his own affidavit. None of this evidence can be

considered “new” for purposes of Rule 60(b)(2). Newly discovered evidence has

to be newly discovered after the twenty-eight-day deadline for moving for a new

trial under Fed. R. Civ. P. 59(b) has expired. See Lyons v. Jefferson Bank &

Trust, 994 F.2d 716, 727 (10th Cir. 1993). Mr. DuHall makes no showing that the

additional evidence he presents was not discoverable, using due diligence, until

                                         -4-
more than twenty-eight days after judgment entered. See id. Indeed, the

testimony of the witness, which is referenced in the district court’s August 10

order, and his own affidavit were obviously available to Mr. DuHall well before

he filed his postjudgment motions. Mr. DuHall did not show that, even with the

exercise of due diligence, he could not have obtained the affidavit from the doctor

or secured deposition testimony from him in a timely manner.

      Mr. DuHall also argues that Rule 60(b)(5) provides him grounds for relief

from judgment. Rule 60(b)(5) allows relief from judgment where “the judgment

has been satisfied, released or discharged.” It has no application to Mr. DuHall’s

case. Similarly, Mr. DuHall does not show the exceptional circumstances that

would justify relief under Rule 60(b)(6). See Smith v. United States, 561 F.3d

1090, 1096 n.8 (10th Cir. 2009) (noting relief under Rule 60(b)(6) “is

extraordinary and may only be granted in exceptional circumstances” (further

quotation omitted)).

      Mr. DuHall next argues that, even in the context of Lennar’s organizational

problems, which it cited as the reason for its failure to make timely repairs to

Mr. DuHall’s home, he was treated differently than the white home owners who

also had problems with Lennar. 3 Mr. DuHall bases this claim on the racist



3
       This contention is somewhat undercut by Mr. DuHall’s previous attempt to
assert a class action on behalf of himself and his neighbors, some of whom were
white, alleging that they all suffered from the same ill treatment by Lennar.

                                         -5-
comments of Mr. Gerhard. The district court held that these statements were

insufficient to establish a § 1981 claim against Lennar because there is no

evidence that Mr. Gerhard possessed management or decision-making authority

sufficient to impute discriminatory animus to his employer. See EEOC v.

Wal-Mart Stores, Inc., 187 F.3d 1241, 1247 (10th Cir. 1999) (ADA case applying

42 U.S.C. § 1981a(b)(1)); see also Saulsberry v. St. Mary’s Univ. of Minn.,

318 F.3d 862, 867 (8th Cir. 2003) (refusing to admit evidence of alleged

race-based comments because they were made by nondecisionmakers);

cf. Johnson v. Weld County, 594 F.3d 1202, 1208-09 (10th Cir. 2010) (noting “an

employee’s statements are not attributable to his employer as a party-opponent

admission in an employment dispute unless the employee was involved in the

decisionmaking process affecting the employment action” (further quotation

omitted)).

      Mr. DuHall argues that both Mr. Gerhard and Mr. Sorsby had sufficient

authority to permit the district court to impute Mr. Gerhard’s racist statements to

Lennar. Mr. DuHall’s conclusory statements in this regard are unavailing.

Mr. Sorsby never made racist comments to or regarding Mr. DuHall, and there is

no evidence that Mr. Gerhard had management or final decision-making authority

with Lennar. Ultimately, Mr. DuHall’s case fails because he has not shown that

Lennar intended to discriminate against him on the basis of his race. See

Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001).

                                         -6-
      Mr. DuHall’s motion for leave to proceed on appeal without prepayment of

costs or fees is GRANTED. His request that this court appoint a special master

pursuant to Fed. R. Civ. P. 53 and order a settlement conference is DENIED. The

motion to expedite is DENIED as moot. The judgment of the district court is

AFFIRMED.


                                                  Entered for the Court



                                                  Mary Beck Briscoe
                                                  Chief Judge




                                       -7-
