Michael D. Arrington v. United Parcel Service , 384 F. App'x 851 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-12437 JUNE 10, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 08-21807-CV-ASG
MICHAEL D. ARRINGTON,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE,
et al.,
CHAROLETTE SUNDQUIST,
RON MCDADE,
THORSEN UPPERMAN,
MARK DODDS, et. al.,
Defendants-Appellees,
MIKE ESKEW,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 10, 2010)
Before TJOFLAT, EDMONDSON, and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Michael D. Arrington, proceeding pro se, appeals the
denial of his Rule 60(b)(6) motion for relief from judgment. Fed.R.Civ.P. 60(b)(6).
No reversible error has been shown; we affirm.
On 24 June 2008, Arrington filed a civil complaint against his former
employer, United Parcel Service (“UPS”) and several UPS employees alleging
employment-related claims under Title VII of the Civil Rights Act, 42 U.S.C. §
2000e-2(a), the Americans With Disabilities Act, 42 U.S.C. § 1211(a), (b)(5)(A),
the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1), and under
Florida law. According to the amended complaint, Arrington suffered these
alleged violations during his tenure at UPS from 14 February 2001 until 6 October
2002.* Attached to the complaint was a right-to-sue letter issued on 30 June 2003
by the Equal Employment Opportunity Commission. The district court dismissed
all claims with prejudice as time-barred under the applicable statutes of limitation.
Arrington sought -- and was denied -- relief pursuant to Rule 60(b)(6); he
appeals that denial. According to Arrington, his delay in initiating the underlying
suit was a consequence of his financial difficulties, his inability to work due to
*
Arrington had filed a complaint raising these claims in 2003; that complaint was
dismissed without prejudice for failure to prosecute.
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medical problems, his pro se status, and his failure to secure legal assistance.
Arrington argues that these impediments to his filing excuse the delay; the district
court should have equitably tolled the limitations period.
We review the denial of a Rule 60(b)(6) motion for an abuse of discretion.
Crapp v. City of Miami Beach, 242 F.3d 1017, 1019 (11 th Cir. 2001). Relief from
judgment under the catchall provision of Rule 60(b)(6) may be based on any
reason that justifies such relief and is not otherwise set out in Rule 60(b). But
relief under this clause is extraordinary and requires exceptional circumstances.
See Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). And even
when circumstances are sufficiently extraordinary to warrant relief, the grant or
denial of relief is a matter for the district court’s sound discretion. See Cano v.
Baker, 435 F.3d 1337, 1342 (11th Cir. 2006). So a district court’s denial of a Rule
60(b) motion will not be overturned unless the appellant demonstrates that the
district court was required to grant relief. Id.Arrington fails to show that denial of relief was an abuse of discretion. See
id. (party appealing denial of equitable tolling bears heavy burden on appeal).
While statutes of limitation generally are subject to equitable tolling, see United
States v. Locke, 105 S.Ct. 1785, 1792 n.10 (1985), equitable tolling “is an
extraordinary remedy which should be extended only sparingly,” Bost v. Federal
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Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004) (quotation omitted); it is
appropriate only when a plaintiff’s untimely filing is due to “extraordinary
circumstances that are both beyond his control and unavoidable even with
diligence.” Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006) (quotation
omitted).
When the district court dismissed Arrington’s complaint as untimely, the
court expressly stated that it had evaluated whether the applicable statutes of
limitation were due to be tolled under the circumstances of the case. Again, in
denying Arrington’s Rule 60(b)(6) motion, the district court concluded expressly
that Arrington failed to show sufficient diligence in his efforts to comply with the
limitations periods. Arrington’s initial filing of these claims was dismissed in
2004; he failed to re-file until 2008. Arrington’s vague and conclusory references
to financial difficulties, his pro se status, his inability to work due to physical and
medical problems, and his inability to secure counsel fail to demonstrate that
extraordinary circumstances sufficient to require equitable tolling existed
throughout the four-year period Arrington failed to re-file, see Cano, 435 F.3d at
1342; and, Arrington failed to demonstrate that he exercised due diligence in
pursuing his claims during the limitations periods. See Raziano v. United States,
999 F.2d 1539, 1541 (11th Cir. 1993).
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The district court committed no abuse of discretion in denying Arrington’s
Rule 60(b)(6) motion for relief.
AFFIRMED.
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