Edward L. Rease v. AT&T Corporation

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 5, 2007
No. 06-15696 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-02659-CV-CC-1
EDWARD L. REASE,
Plaintiff-Appellant,
versus
AT&T CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 5. 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
This case comes before us on the district court’s denial of appellant Edward
L. Rease’s motion for reconsideration. Rease, an African American male
proceeding pro se, appeals the district court’s denial of his motion for
reconsideration after the district court granted summary judgment in favor of
Rease’s former employer, AT&T Corp (“AT&T”). Previously, we dismissed
Rease’s appeal in part because his notice of appeal was untimely as to the district
court’s order granting AT&T’s summary judgment motion. We also ordered that
the appeal could proceed as to the district court’s order denying Rease’s motion for
reconsideration.
Rease argues on appeal that the district court erred by reopening discovery
in his case, and ruling that his supplemental affidavit was a sham affidavit. Rease
then argues that AT&T was not entitled to summary judgment, and addresses the
merits of each of his failure-to-promote claims. Rease argues that the district court
erred in making several conclusions in its order denying his motion for
reconsideration, namely, that (1) his qualifications were based on his own personal
opinion; (2) AT&T employee Cindy Zingarelli had six years of switched
provisioning experience; (3) he relied on unauthenticated documents; and (4)
AT&T employee Larry Ferguson was a manager at the time of his hiring. Rease
then requests that we reverse the district court’s grant of summary judgment in
favor of AT&T. AT&T responds that Rease failed to address the district court’s
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order denying his motion for reconsideration, so he abandons the only appealable
issue in the case.
We review a denial of a motion for reconsideration for abuse of discretion.
Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004). A
district court abuses its discretion when it makes an error of law. Quintana v.
Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005).
Federal Rule of Civil Procedure 60(b)(1) allows a party to move a court for
relief from a final judgment due to “mistake, inadvertence, surprise, or excusable
neglect.” An individual appealing a district court's denial of relief under Rule
60(b) “must prove some justification for the relief.” Cavaliere v. Allstate Ins. Co.,
996 F.2d 1111, 1115 (11th Cir. 1993). Additionally, an appellant “cannot prevail
simply because the district court properly could have vacated its order. Instead,
appellant must demonstrate a justification so compelling that the court was
required to vacate its order.” Id. A movant seeking relief under 60(b)(2) based on
newly discovered evidence requires all of the following: (1) the evidence must be
newly discovered since the summary judgment order; (2) the movant must have
exercised due diligence in discovering the new evidence; (3) the evidence cannot
be merely cumulative or impeaching; (4) the evidence must be material; and (5) the
new evidence must be such that it would produce a different outcome in the
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underlying action. Waddell v. Hendry County Sheriff's Office, 329 F.3d 1300,
1309 (11th Cir. 2003). Additionally, Rule 60(b)(6) allows a court to grant relief
from a judgment for “any other reason justifying relief.” Fed.R.Civ.P. 60(b)(6).
However, “[f]ederal courts grant relief under Rule 60(b)(6) only for extraordinary
circumstances.” Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th
Cir. 2000).
We construe pro se pleadings more leniently than formal pleadings drafted
by lawyers. Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). “[T]he law
is by now well settled in this Circuit that a legal claim or argument that has not
been briefed before the court is deemed abandoned and its merits will not be
addressed. The Federal Rules of Appellate Procedure plainly require that an
appellant's brief ‘contain, under appropriate headings and in the order indicated . . .
a statement of the issues presented for review.’” Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (citation omitted). “Any issue
that an appellant wants [us] to address should be specifically and clearly identified
in the brief.” Id. “Under our case law, a party seeking to raise a claim or issue on
appeal must plainly and prominently so indicate. Otherwise, the issue-even if
properly preserved at trial-will be considered abandoned . . . Our requirement that
those claims an appellant wishes to have considered on appeal be unambiguously
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demarcated stems from the obvious need to avoid confusion as to the issues that
are in play and those that are not.” Id. (citation omitted). “If an argument is not
fully briefed (let alone not presented at all) to the Circuit Court, evaluating its
merits would be improper both because [an appellant] may control the issues [he
raises] on appeal, and because the appellee would have no opportunity to respond
to it. Indeed, evaluating an issue on the merits that has not been raised in the initial
brief would undermine the very adversarial nature of our appellate system.” Id.
Further, we have deemed an issue waived where a party failed to include
substantive argument and only made passing references to the order appealed from.
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
Upon review of the record and the parties’ briefs, we find no reversible
error. Rease has abandoned the only issue on appeal, namely, whether the district
court abused its discretion in denying his motion for reconsideration. While we are
cognizant of the liberal construction afforded pro se briefs, a scrupulous
examination of Rease’s brief reveals no discernable arguments related to the
district court’s decision to deny Rease’s motion for reconsideration. The only
argument heading Rease provides contends that AT&T was not entitled to
summary judgment. Rease does not specifically address, or mention, the district
court’s ultimate ruling on the motion to reconsider, or the standards governing
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motions to reconsider, but only the standards for summary judgment.
Rease briefly attacks four of the district court’s factual conclusions in its
order denying his motion for reconsideration. These arguments are not adequate
because they do not relate to newly discovered material evidence that would
produce a different outcome in the underlying action. Nor do these arguments
relate to “extraordinary circumstances” to justify relief under Fed.R.Civ.P.
60(b)(6). Rather, Rease’s claims regarding his qualifications and those of others
are attacks on conclusions the district court made during the summary judgment
process. These claims are passing references to the order denying Rease’s motion
for reconsideration and do not meaningfully address the substance of the district
court’s order. Accordingly, he has abandoned the only issue properly before us,
and we affirm.
AFFIRMED.
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