         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.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held
 2       at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3       York, on the 27th day of November, two thousand thirteen.
 4
 5       PRESENT:
 6                   DENNIS JACOBS,
 7                   BARRINGTON D. PARKER,
 8                   DENNY CHIN,
 9                         Circuit Judges.
10       _____________________________________
11
12       Barbara Whitaker,
13
14                                 Plaintiff-Appellant,
15                        v.                                                   12-3146
16
17       New York University,
18
19                                 Defendant-Appellee.*
20
21       _____________________________________
22
23       FOR PLAINTIFF-APPELLANT:                         Barbara Whitaker, pro se, New York, NY.
24
25       FOR DEFENDANT-APPELLEE:                          Nancy Kilson, Associate General Counsel, for
26                                                        Bonnie Brier, General Counsel, New York
27                                                        University, New York, NY.


                 *
                     The Clerk of the Court is directed to amend the caption to read as shown above.
 1          Appeal from an order of the United States District Court for the Southern District of New

 2   York (Swain, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the order of the district court is AFFIRMED.

 5          Appellant Barbara Whitaker, pro se, appeals from a June 20, 2012 district court order

 6   denying her post-judgment motion, filed pursuant to Rule 60(b) of the Federal Rules of Civil

 7   Procedure, for relief from the July 2011 summary judgment in favor of New York University.

 8   We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

 9   and the issues on appeal.

10          We review the denial of a Rule 60(b) motion for abuse of discretion. See Johnson ex rel.

11   United States v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011). “A court

12   abuses its discretion when . . . its decision [(1)]rests on an error of law or a clearly erroneous

13   factual finding; or (2) cannot be found within the range of permissible decisions.” Id.

14          Rule 60(b) is “a mechanism for ‘extraordinary judicial relief invoked only if the moving

15   party demonstrates ‘exceptional circumstances,’” Ruotolo v. City of New York, 514 F.3d 184,

16   191 (2d Cir. 2008) (quoting Paddington Partners v. Bourchard, 34 F.3d 1132, 1142 (2d Cir.

17   1994)), and a Rule 60(b) motion is properly denied where it seeks only to relitigate issues

18   already decided. See Zerman v. Jacobs, 751 F.2d 82, 85 (2d Cir. 1984) (dismissing as frivolous

19   an appeal from the denial of a Rule 60(b) motion, where the appellant “continue[d] to relitigate

20   the same issue that the district court [previously] decided”). Rule 60(b)(2) allows for relief from

21   judgment based on “newly discovered evidence” that could not have been discovered earlier

22   “with reasonable diligence.” Fed. R. Civ. P. 60(b)(2); see Boule v. Hutton, 328 F.3d 84, 95 (2d


                                                       2
1    Cir. 2003). Rule 60(b)(6) authorizes a district court to grant relief to a moving party for “any

2    other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “Rule 60(b)(6) relief is only

3    available if Rules 60(b)(1) through (5) do not apply . . . .” ISC Holding AG v. Nobel Biocare

4    Finance AG, 688 F.3d 98, 109 (2d Cir. 2012).

5           Upon review of the record and case law, we conclude that the district court did not abuse

6    its discretion in denying Whitaker’s Rule 60(b) motion. We affirm for substantially the same

7    reasons stated in the district court’s thorough and well-reasoned June 20, 2012 order. The

8    evidence proffered in support of Whitaker’s Rule 60(b) motion was clearly available when

9    Whitaker filed her counseled opposition to summary judgment, and therefore was not “newly

10   discovered.” See Fed. R. Civ. P. 60(b)(2); accord Boule, 328 F.3d at 95. Similarly, in deciding

11   whether to grant summary judgment, the district court was not required to consider evidence not

12   made part of the record. Fed. R. Civ. P. 56(c)(1) (stating that a party may support its position

13   that material facts are in dispute by “citing to particular parts of materials in the record, including

14   depositions, documents, electronically stored information, . . . or other materials”); see also Fed.

15   R. Civ. P. 56, advisory committee’s notes (2010 amends.) (“Materials that are not yet in the

16   record . . . must be placed in the record.”).

17          We have considered all of Whitaker’s remaining arguments and find them to be without

18   merit. Accordingly, we AFFIRM the order of the district court.

19                                                   FOR THE COURT:
20                                                   Catherine O’Hagan Wolfe, Clerk
21




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