United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion for
Reconsideration (Doc. 66) filed on October 17, 2017.
Plaintiff requests the Court to reconsider its August 25,
2017, Opinion and Order granting defendants summary judgment.
Plaintiff states that the Court “erred” in ruling
in favor of defendants and claims that defendants
“erroneously misled” the Court that Plaintiff was
seeking “only a Skype visitation.” Doc. 66 at 1.
Defendants filed a Memorandum of Law in opposition to
Plaintiff's motion (Doc. 67). Defendants argue that the
motion is untimely and otherwise without merit. Doc. 67 at
2-3. For the reasons set forth below, the Court denies
does not specify upon which Rule he relies in bringing his
motion. The motion was filed beyond the twenty-eight (28)
days period for seeking relief under Rule 59. Fed. R. Civ. P
59(e). Consequently, the Court construes Plaintiff's
motion as seeking relief under Federal Rule of Civil
Procedure 60(b) which states:
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.
Fed. R. Civ. P. 60(b) (2017). The purpose of Rule
60(b) is to define the specific circumstances under which a
party may obtain relief from a final judgment or order.
Motions under this rule are directed to the sound discretion
of the court. Cano v. Baker, 435 F.3d 1337, 1342
(11th Cir. 2006); Mahone v. Ray, 326 F.3d 1176,
1178, n.1 (11th Cir. 2003); Weiss v. Warden, 703
Fed.Appx. 789, 791 (11th Cir. July 24, 2017). Rule 60(b) (6),
known as the catch-all provision, requires a party to
“demonstrate that the circumstances are sufficiently
extraordinary to warrant relief.” Aldana v.
DelMonte Fresh Produce N.A., Inc., 741 F.3d
1349, 1355 (11th Cir. 2014) (internal quotations and
citations omitted). To be entitled to relief under this
provision, Plaintiff must show that “absent such
relief, an extreme and unexpected hardship will
result.” Crapp v. City of Miami
Beach, 242 F.3d 1017, 1020, (11th Cir. 2001)
(internal quotations and citations omitted).
contends that the Defendants made misleading and erroneous
statements throughout their motion for summary judgment. Doc.
66 at 7. Plaintiff points to various exhibits attached to his
motion in support of his contention. Liberally construed, the
Court considers Plaintiff's motion as falling within Rule
60(b) (2) (existence of newly discovered evidence) and Rule
60(b) (3) (fraud, misrepresentation, or misconduct by an
succeed under Rule 60(b) (2), a party must prove five
elements: (1) the evidence must be newly discovered since the
pertinent ruling; (2) the party must have exercised due
diligence in discovering the evidence; (3) the evidence must
not be merely cumulative or impeaching; (4) the evidence must
be material; and (5) the evidence must be of such a nature
that the ruling would probably be different. Waddell v.
Hendry County Sheriff's Office, 329 F.3d 1300, 1309
(11th Cir. 2003). A Rule (b) (2) motion is “an
extraordinary motion and the requirements of the rule must be
strictly met.” Id. (citations omitted).
Evidence in a party's possession prior to entry of
judgment cannot be “newly discovered.” Taylor
v. Texgas, 831 F.2d 255, 259 (11th Cir.1987);
Gundotra v. IRS, 160 Fed.Appx. 834, 836 (11th Cir.
review, the Court finds that of the 15 exhibits attached to
Plaintiff's motion, only three of the exhibits were not
previously filed with the Court: Exhibit C (Corrections
Bureau Policy and Procedures); Exhibit D (LCSOCB, Inmate
Visitation List); and Exhibit K (Interrogatories of Kevin
Koller). Plaintiff has not met his burden of showing why
these documents could not have been discovered or introduced
to the Court before the Court ruled on Defendants'
amended motion for summary judgment or within the time for
filing a Rule 59 motion. Furthermore, Plaintiff has not
established that even if the Court considered these documents
it would have reached a different outcome. Thus, the Court
finds that Plaintiff has not met his burden of showing newly
discovered evidence to warrant the Court granting him relief
under Rule 60(b) (2).
prevail under Rule 60(b) (3), a party must prove the fraud,
misrepresentation or other misconduct by clear and convincing
evidence. Cox Nuclear Pharmacy, Inc. v. CTI, Inc.,
478 F.3d 1301, 1314 (11th Cir. 2007). Additionally, the party
must demonstrate that the misconduct prevented the losing
party from fairly presenting his case. Id.
“When a party knows of evidence but chooses not to
present it or seek additional discovery for further
investigation, that party is not entitled to Rule 60(b)
relief following summary judgment.” Solomon v.
DeKalb County, Ga., 154 Fed.Appx. 92, *2 (11th Cir.
Plaintiff alleges that Defendants made various erroneous
statements and misrepresentations in their amended motion for
summary judgment. At the outset, the Court disagrees that the
Defendants claimed Plaintiff was requesting “only a
Skype visitation.” Indeed, Defendants' amended
motion acknowledge that Plaintiff was requesting a
“Skype-style visitation.” See Doc. 58 at
1 ¶2, 2 ¶3, and 3-5. Even assuming
arguendo that Plaintiff can prove such
misrepresentations, Plaintiff has provided no reason why he
failed to provide such evidence or argument in rebuttal to
the Court previously. Significantly, despite being allotted
additional time, Plalintiff filed no amended response to
Defendants' amended motion for summary judgment.
See Doc. 61. But due to Plaintiff's pro
se status, the Court considered Plaintiff's previous
response as opposing Defendants' dispositive motion.
See Doc. 64 at 4. Therefore, the Court finds
Plaintiff has not sustained his burden to be granted relief
under Rule 60 (b) (3).
it is now ORDERED:
Motion for Reconsideration ...