Daneshvar v. Graphic Technology, Inc. , 261 F. App'x 126 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
January 18, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
_____________________________________
BIJAN DANESHVAR,
Plaintiff-Appellant, No. 07-3240
v. (D. Kansas)
GRAPHIC TECHNOLOGY, INC., (No. 2:04-CV-02212-JWL)
Defendant-Appellee.
_____________________________________
ORDER AND JUDGMENT*
_____________________________________
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.**
_____________________________________
Bijan Daneshvar, formerly employed by Graphic Technology, Inc. (GTI), appeals
the district court’s dismissal of his motion for relief from judgment filed pursuant to Rule
60(b). For the reasons explained below, we affirm the district court’s dismissal.
*
This order and judgment is not binding precedent except under the doctrines of
the 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.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See FED. R.APP. P. 34(f) and 10TH CIR. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
I. BACKGROUND
Mr. Daneshvar filed a pro se complaint against GTI alleging several violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The alleged
violations included unfair discharge, failure to promote, unequal terms and conditions of
employment, retaliation, and additional discriminatory acts under Title VII. The district
court dismissed several claims for lack of subject matter jurisdiction, and granted
summary judgment to GTI on the balance of the claims. See Daneshvar v. Graphic
Tech., Inc., 433 F. Supp. 2d 1244 (D. Kan. 2006); Daneshvar v. Graphic Tech., Inc., 2006
WL 266603 (D. Kan. Feb. 1, 2006); Daneshvar v. Graphic Tech., Inc., 2006 WL 14565(D. Kan. Jan. 3, 2006). We affirmed the district court’s judgment on May 15, 2007, and
the mandate issued on June 6, 2007. See Daneshvar v. Graphic Tech., Inc., 237 F. App’x
309 (10th Cir. 2007).
Mr. Daneshvar filed a motion pursuant to Fed. R. Civ. P. 60(b) seeking relief from
the district court’s judgment. In his motion for relief from judgment, Mr. Daneshvar
contended that he had newly-discovered evidence of conspiracy, cover-up, forgery, and
fraud that supports the revisiting of his claims regarding disparate wages and wrongful
discharge. Mr. Daneshvar also contended that GTI and its counsel have engaged in
misconduct including fabrication of documents and submission of perjured testimony.
The district court concluded that the evidence Mr. Daneshvar presented in his Rule 60(b)
motion could have and should have been presented in his response to GTI’s motion for
summary judgment. The district court also reprimanded Mr. Daneshvar for his bald and
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unsupported assertions regarding GTI’s and counsel’s misconduct. Mr. Daneshvar now
appeals.
II. DISCUSSION
“We review a district court’s denial of a Rule 60(b) motion for an abuse of
discretion. Amoco Oil Co. v. United States Envt’l Protection Agency, 231 F.3d 694, 697
(10th Cir. 2000). “Parties seeking relief under Rule 60(b) have a higher hurdle to
overcome because such a motion is not a substitute for an appeal.” Bud Brooks Trucking,
Inc. v. Bill Hodges Trucking Co., Inc., 909 F.2d 1437, 1440 (10th Cir. 1990). “Rule
60(b)[] relief is . . . difficult to attain and is appropriate only when it offends justice to
deny such relief.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1293 (10th Cir.
2005) (citation and internal quotation marks omitted). “Given the lower court's
discretion, the district court's ruling is only reviewed to determine if a definite, clear or
unmistakable error occurred below.” Id. at 1289 (internal quotation marks omitted). We
do not find a definite, clear or unmistakable error, and therefore affirm.
Indeed, we have reviewed plaintiff's Rule 60 motion, and conclude that Mr.
Daneshvar does not endeavor to offer any justification for the delayed reference to these
allegations, when the evidence appears to have been in his possession during the
summary judgment proceedings.
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III. CONCLUSION
Accordingly, we AFFIRM the district court’s denial of Mr. Daneshvar’s Rule
60(b) motion.
Entered for the Court,
Robert H. Henry
Chief Circuit Judge
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