                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2005

James v. VI Water Power Auth
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2278




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                                        NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 04-2278


                      SHERYL JAMES

                            Appellant

                                v.

  VIRGIN ISLANDS WATER AND POWER AUTHORITY;
                JAMES MATTHEW




                       On Appeal from the
               District Court of the Virgin Islands
                     (D.C. No. 01-cv-00148)
   District Judge: Honorable Raymond L. Finch, Chief Judge




               Argued December 14, 2004
 Before: SLOVITER, FUENTES, and GREENBERG, Circuit
                       Judges.

                  (Filed: January 12, 2005)

Lee J. Rohn
K. Glenda Cameron (Argued)
Law Offices of Lee J. Rohn
Christiansted, St. Croix
U.S. Virgin Islands

      Attorneys for Appellant

Lorelei Farrington-Watson
Ishmael A. Meyers, Jr. (Argued)
St. Thomas
U.S. Virgin Islands

       Attorneys for Appellees

                  OPINION OF THE COURT




FUENTES, Circuit Judge.




       Sheryl James brought suit under Title VII, among other

things, against the Virgin Islands Water and Power Authority and

James Matthew for claims arising out of the sexual harassment she

alleges to have suffered while employed at the Power Authority.

The defendants filed a motion to dismiss the suit and, after

receiving two extensions to oppose the motion, James failed to file

any opposition. The motion to dismiss was eventually granted by

the District Court and James did not appeal. Almost one year after

the motion was granted, James moved, under Rule 60(b), for relief

from the judgment, arguing that the District Court applied the

wrong standard in dismissing her claims. The Court denied the

motion, in part because it found that Rule 60(b) could not serve as

a substitute for appeal from the judgment of dismissal. James



                                 2
appeals the denial of her Rule 60(b) motion. Because we agree

with the District Court that such a motion cannot serve to correct

legal error, at least after the time for appeal has run, we will affirm.

                                   I.

       Sheryl James was hired and began work with the Virgin

Islands Water and Power Authority (the “Power Authority”) on

March 27, 1998. Defendant James Matthew (“Matthew”) was her

supervisor at all times relevant to this case. James alleges that, on

or about October 1998, Matthew made sexual advances towards

her.   After she communicated to him that the advances were

unwelcome, she alleges that he retaliated by ceasing all

communications with her, verbally abusing her in the presence of

others, and tampering with her time sheets to deprive her of pay for

the full time that she worked.          She complained to the Power

Authority about this conduct on several occasions, but she asserts

that nothing was done to ameliorate the situation. However, the

Power Authority did attempt to hold a hearing on September 6,

2000 to clarify the matter, but James apparently walked out of the

meeting because she found it unacceptable to have to discuss the

charges in Matthew’s presence. Finally, the Power Authority



                                   3
terminated her on December 1, 2000.

       James filed a complaint with the EEOC. The EEOC was

unable to determine that a Title VII violation was conclusively

established, and sent James a right-to-sue letter. On August 30,

2001, James commenced suit in the District Court of the Virgin

Islands against the Power Authority and Matthew (hereinafter

collectively referred to as the “Authority”) for various intentional

torts, negligence, slander, and breach of contract. On March 4,

2002, the Authority filed a motion to dismiss the suit and, in the

alternative, a motion for summary judgment. James received two

extensions to her time to respond to the motion because her

attorney was struck with severe health problems and a death in the

attorney’s loved-one’s family. In both grants of extension, the

Magistrate Judge made clear that he was unwilling to extend

further the time for opposition. Accordingly, the Magistrate Judge

refused to grant a third extension, the request for which was filed

one day after James’ response was due.          James moved for

reconsideration of the refusal to grant the third extension but the

Magistrate Judge reaffirmed his decision. Finally, on February 20,

2003, the District Court granted the Authority’s motion to dismiss



                                 4
in its entirety, dismissing any and all Title VII claims and refusing

to exercise supplemental jurisdiction over the local claims.1 The

Court noted that the “plaintiff carries the initial burden of

establishing a prima facie case of unlawful sex discrimination” and

concluded that James had “not attempted to make such a showing”

and that she “not only fail[ed] to set forth facts in support of the . . .

elements of a Title VII claim, [she] fail[ed] to set forth any

allegations or claims whatsoever pursuant to Title VII.” App. of

Appellant at 151-52.

       On February 19, 2004, James filed a Rule 60(b) motion in

the District Court for relief from judgment, one day before the one-

year deadline for filing motions under Rule 60(b)(1)-(3) would

have expired. The motion requested that the dismissal of the case

be set aside under Rule 60(b)(1) because it was a result of the

mistake, inadvertence, or excusable neglect on the part of both

sides’ attorneys and the Court for not considering the Supreme

Court’s decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506

(2002). Alternatively, the motion sought the same relief under

Rule 60(b)(6) in the interests of justice. The District Court denied

       1
       Notably, James’ non-federal claims were dismissed for lack of
supplemental jurisdiction and have been re-filed in Territorial Court.

                                    5
the motion, noting that James failed to offer a compelling reason to

reopen the case, and suggesting that the correct avenue to challenge

the correctness of the dismiss was through appeal. James appeals

the denial of her Rule 60(b) motion.

                                  II.

       Rule 60(b), in relevant part, reads, “[o]n motion and upon

such terms as are just, the court may relieve a party or a party’s

legal representative from a final judgment, order, or proceeding for

the following reasons: (1) mistake, inadvertence, surprise, or

excusable neglect; . . . or (6) any other reason justifying relief from

the operation of the judgment.” Fed. R. Civ. P. 60(b).

       James contends that the District Judge failed to conduct the

required excusable neglect analysis and that the case should be

reversed and remanded on that ground. See In re Cendant Corp.

PRIDES Litig., 235 F.3d 176, 182 (3d Cir. 2000) (finding that

“[o]n [a party’s] Rule 60(b) motion, the District Court should

properly have entertained an analysis of the factors [from Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380

(1993)] constituting ‘excusable neglect’ to determine whether [the

party] had met them. To fail to do so is a failure on the part of the



                                  6
District Court to properly apply the law to the facts of this case and

provides grounds for reversal on the basis of abuse of discretion.”).

Undoubtably, the Court did not consider any of the Pioneer factors

in rejecting her Rule 60(b)(1) motion. However, unlike in Cendant,

in which the district court failed to consider the factors before

finding that the neglect proffered by the movant was not excusable

(and therefore conducted an insufficient excusable neglect

analysis), here the District Court found it unnecessary to engage in

the excusable neglect analysis at all. The District Court’s order

explaining its denial of Rule 60(b) relief suggests that the Judge

found both (1) that the error of law alleged by James was not in

fact error and (2) that the alleged neglect was not of the character

cognizable under Rule 60(b). See App. of Appellant at 275-77.

We consider the latter reason first, as it relates to the general

propriety of the motion rather than its merits. However, it is

necessary to parse James’ allegations of mistake or neglect before

proceeding any further in the analysis.




          A. James’ Contentions of Mistake or Neglect

       James cites, as neglect or mistake, alleged errors by the



                                  7
District Court, opposing counsel, and her own counsel. With

respect to the Court, James states that it erred in not considering

Swierkiewicz and in not properly analyzing the Rule 60(b) motion.2

This “neglect” ascribed to the Court is an allegation of pure legal

error, in applying the incorrect standard to James’ pleadings. She

also contends that the Magistrate Judge erred in denying James a

third extension on the time to file her opposition to the motion to

dismiss. The “neglect” of the Magistrate Judge cannot fairly be

characterized as erroneous, as he denied the extension as an

exercise of discretion, and had previously noted (when granting the

preceding extensions) that he was unwilling to further extend the

time and that even the second extension “pushe[d] the limits.”

App. of Appellants at 42 n.1. James concedes that the denial of the

extension and the refusal to accept the late filing were within the

Magistrate Judge’s discretion. See, e.g., Reply Br. of Appellant at

23.

        James faults opposing counsel in not citing to Swierkiewicz

in her motion to dismiss, noting that attorneys have a duty to cite



        2
        The latter contention is, of course, irrelevant to the merits of the
Rule 60(b) motion, as consideration of that issue is the purpose of this
appeal.

                                     8
controlling precedent, including precedent contrary to their own

arguments. Opposing counsel’s alleged “neglect” is not actually

neglect at all, in that the correct standard was cited. In its brief in

support of its motion to dismiss, the Authority does not cite to any

heightened pleading standard. In fact, the brief cites the liberal

Rule 8 standard, and thus comports with Swierkiewicz, obviating

the need to actually cite the decision. See App. of Appellant at 23.

       Finally, James describes her counsel’s error as failing to

meet the deadline for filing her opposition to the motion to dismiss

and failing to apprise the District Court of Swierkiewicz. The

failure of James’ counsel to file timely opposition to the motion to

dismiss would qualify as neglect, meriting the Pioneer analysis.

Cf. Lorenzo v. Griffith, 12 F.3d 23, 27 (3d Cir. 1993) (employing

excusable neglect analysis in the context of a failure to file timely

discovery requests). However, James does not adequately allege

counsel’s failure to file opposition as an independent ground for

relief from the failure to cite Swierkiewicz. James’ arguments with

respect to counsel’s neglect all refer to the consequence of the

mistake as not providing the Court with the correct standard by

which to judge the motion. However, as noted, the Authority’s



                                  9
motion papers correctly describe the standard. In addition, the

District Court’s denial of James’ Rule 60(b) motion makes it clear

that the Court believed that it applied the correct standard and that

it did not dismiss the case as a direct result of the lack of opposition

from James. Therefore, it appears that James is not offering the

failure to file opposition as an independent ground to grant relief

from judgment, but rather as another reason why the Court made

an erroneous ruling. This idea is reinforced by James’ statements

that “[s]he made a timely Motion for Relief from Order upon

learning that she had grounds,” Br. of Appellant at 17, and that

“she could not have brought the error to the court’s attention any

earlier because her counsel failed to recognize the error until

recently,” App. of Appellant at 250. These statements clearly point

to the failure of the Court to consider Swierkiewicz as the true

error, and directly imply that counsel would not have cited that case

in her opposition to the motion to dismiss (as she was unaware of

it at that time). Cast in that light, the failure to file opposition is

not, by itself, a stated ground for granting relief.

      B. The Significance of Legal Error Under Rule 60(b)

       As noted above, James’ contention of neglect is that the



                                  10
District Court applied the wrong standard in granting the

Authority’s motion to dismiss. Accordingly, before addressing the

merits of this claim, we must decide whether such a contention of

legal error can support a Rule 60(b) motion.

       This Court has stated that a “Rule 60(b) motion may not be

used as a substitute for an appeal, and that legal error, without more

does not warrant relief under that provision.” United States v.

Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003) (quotation omitted);

accord Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988).

       As James points out, the precise bounds of this prohibition

in the context of Rule 60(b)(1) are unclear. In Page v. Schweiker,

786 F.2d 150, 155 & n.3 (3d Cir. 1986), this Court set forth the

positions of the other circuits on this issue: “some courts have held

that legal error without more cannot be corrected under Rule

60(b)[, o]thers have held that legal error may be characterized as

‘mistake’ within the meaning of Rule 60(b)(1), but only where the

motion is made . . . within the time allowed for appeal.” Page, 786

F.2d at 154-55 (citations omitted). The Court noted that these

positions were justified “under well-established principles [that]

Rule 60(b) is not a substitute for an appeal” and explained that



                                 11
“[w]ere the rule otherwise, the time limitations on appeal set by

Fed.R.App. P. 4(a), and on motions to alter or amend judgments

under Fed.R.Civ.P. 59(e), would be vitiated.”                Id. at 154.

However, because the Court decided Page on other grounds, it

stated that “[t]his court has yet to decide this issue, and we do not

do so now.” Id. at 155 (footnote omitted). James argues that Page

leaves open the possibility that legal error may be corrected under

Rule 60(b)(1). The language in Fiorelli and Evans with respect to

legal error and Rule 60(b), however, appears to foreclose this

argument. At most, Page could be read to allow for the possibility

that legal error could be addressed under Rule 60(b)(1) if a motion

is made before the time for appeal has run. Here, James’ motion

was filed well after the expiration of the window for appeal, and

therefore Rule 60(b)(1) offers her no relief.3

       There is absolutely no ambiguity over whether Rule 60(b)(6)

may be used to correct legal error. This Court has unequivocally



       3
         James argues that she should not be penalized for failing to raise
Swierkiewicz until after time for appeal had run, because her counsel
failed to discover the case until then. See App. of Appellant at 227-28,
248. This actually undermines her argument, as it suggests that the
proper avenue for the relief that she seeks would be an appeal, but that
it was too late to file an appeal so she is trying to use Rule 60(b). This
sort of behavior is precisely what the rules above attempt to curtail.

                                    12
stated that “‘[s]ince legal error can usually be corrected on appeal,

that factor without more does not justify the granting of relief

under Rule 60(b)(6).’” Pridgen v. Shannon, 380 F.3d 721, 728 (3d.

Cir. 2004) (quoting Martinez-McBean v. Gov’t of V.I., 562 F.2d.

908, 912 (3d Cir. 1977)); Page, 786 F.2d at 155 n.3. Therefore,

neither Rule 60(b)(1) nor Rule 60(b)(6) can provide James the

relief that she desires.

                                III.

       For the reasons discussed above, we agree with the District

Court that Rule 60(b) is an improper vehicle for James to present

her legal challenges to the Court’s dismissal of her claims.

Accordingly, we will affirm the District Court’s denial of the Rule

60(b) motion.




                                 13
