Whitaker v. New York University

SUMMARY ORDER Appellant Barbara Whitaker, pro se, appeals from a June 20, 2012 district court order denying her post judgment motion, filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, for relief from the July 2011 summary judgment in favor of New York University. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review the denial of a Rule 60(b) motion for abuse of discretion. See Johnson ex rel. United States v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir.2011). “A court abuses its discretion when ... its decision [ (1) jrests on an error of law or a clearly erroneous factual finding; or (2) cannot be found within the range of permissible decisions.” Id. Rule 60(b) is “a mechanism for ‘extraordinary judicial relief invoked only if the moving party demonstrates ‘exceptional circumstances,’ ” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir.1994)), and a Rule 60(b) motion is properly denied where it seeks only to relitigate issues already decided. See Zerman v. Jacobs, 751 F.2d 82, 85 (2d Cir.1984) (dismissing as frivolous an appeal from the denial of a Rule 60(b) motion, where the appellant “continue[d] to relitigate the same issue that the district court [previously] decided”). Rule 60(b)(2) allows for relief from judgment based on “newly discovered evidence” that could not have been discovered earlier “with reasonable diligence.” Fed. R.Civ.P. 60(b)(2); see Boule v. Hutton, 328 F.3d 84, 95 (2d Cir.2003). Rule 60(b)(6) authorizes a district court to grant relief to a moving party for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). “Rule 60(b)(6) relief is only available if Rules 60(b)(1) through (5) do not apply. ...” ISC Holding AG v. Nobel Biocare Finance AG, 688 F.3d 98, 109 (2d Cir.2012). Upon review of the record and case law, we conclude that the district court did not abuse its discretion in denying Whitaker’s Rule 60(b) motion. We affirm for substantially the same reasons stated in the district court’s thorough and well-reasoned June 20, 2012 order. The evidence proffered in support of Whitaker’s Rule 60(b) motion was clearly available when Whitaker filed her counseled opposition to summary judgment, and therefore was not “newly discovered.” See Fed.R.Civ.P. 60(b)(2); accord Boule, 328 F.3d at 95. Similarly, in deciding whether to grant *115 summary judgment, the district court was not required to consider evidence not made part of the record. Fed.R.Civ.P. 56(c)(1) (stating that a party may support its position that material facts are in dispute by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, ... or other materials”); see also Fed.R.Civ.P. 56, advisory committee’s notes (2010 amends.) (“Materials that are not yet in the record ... must be placed in the record”). We have considered all of Whitaker’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the order of the district court.