Creamer v. Laidlaw Transit, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 2 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARJORIE A. CREAMER,
Plaintiff-Appellant,
v. No. 03-1019
(D.C. No. 92-S-1673)
LAIDLAW TRANSIT, INC., (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY and PORFILIO , Circuit Judges, and BRORBY , Senior Circuit
Judge.
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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In August 1992, plaintiff-appellant Marjorie Creamer filed a complaint
against her employer, Laidlaw Transit, Inc., alleging hostile work environment
sexual harassment in violation of Title VII of the 1964 Civil Rights Act. This
court affirmed the district court’s judgment in favor of the defendant. Creamer v.
Laidlaw Transit, Inc., 86 F.3d 167, 172 (10th Cir. 1996). More than six years
after this court’s affirmance of the underlying judgment, Ms. Creamer filed
a pro se motion in the district court styled “Plaintiff’s Motion to Reopen with
Additional Documents to Support and Add to the Archives.” The district court
denied Ms. Creamer’s motion, and this appeal followed. We affirm.
We construe Ms. Creamer’s motion as one filed under Fed. R. Civ. P.
60(b)(6) and review its denial for abuse of discretion, see LaFleur v. Teen Help ,
Nos. 02-4160, 02-4161, 02-4177, 2003 WL 22052834, at *6 (10th Cir. Sept. 3,
2003). 1 Relief under Rule 60(b)(6) “is appropriate only when it offends justice to
deny such relief. The denial of a 60(b)(6) motion will be reversed only if we find
a complete absence of a reasonable basis and are certain that the decision is
wrong.” Yapp v. Excel Corp. , 186 F.3d 1222, 1232 (10th Cir. 1999) (quotations
and citations omitted).
1
Ms. Creamer’s motion was untimely if she intended to file pursuant to
Rules 60(b)(1), (b)(2), or (b)(3) because those motions must be made no more
than one year after the judgment. Rules 60(b)(4) and (b)(5) do not apply here.
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Ms. Creamer’s motion in the district court requested that the underlying
case be reopened and that certain documents be added to the record. On appeal
from the denial of that motion, Ms. Creamer reargues the facts of her case,
contends that testimony from other employees should have been admitted at trial,
claims that her attorney had a conflict of interest because he represented one of
those employees in a later suit against Laidlaw, and charges the trial judge with
bias and criminal libel.
As noted above, we have already affirmed the district court’s judgment
against Ms. Creamer on the merits of her claim against Laidlaw. See Creamer ,
86 F.3d at 172. In doing so, we rejected Ms. Creamer’s argument that a
Ms. Danford should have been allowed to testify. Id. at 171. Any argument
regarding another potential witness could presumably have been raised on direct
appeal. Ms. Creamer’s untimely contention now falls far short of the exceptional
circumstance required for relief under Rule 60(b)(6). Because there is no
showing as to how this potential witness’s testimony would have changed the
outcome of her case, Ms. Creamer’s charges of attorney conflict similarly fail to
support the right to such relief. Ms. Creamer did not raise the issue of judicial
bias or libel in the motion to the district court. We will thus not address it on
appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
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We find no abuse of discretion in the district court’s denial of
Ms. Creamer’s Rule 60(b)(6) motion. The judgment of the district court is
therefore AFFIRMED. Ms. Creamer’s motion for leave to proceed without
prepayment of costs or fees, as well as her motions for sanctions and for oral
argument are DENIED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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