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ULLOA v. CITY OF PHILADELPHIA

May 3, 1988

Gerson Ulloa, Petitioner,
v.
City of Philadelphia, et al., Respondents



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, UNITED STATES DISTRICT JUDGE.

 We are asked by petitioner Gerson Ulloa to revisit a case filed in 1979, settled by consent order, finally decided by this court on February 4, 1986, and affirmed by the Third Circuit on September 23, 1986.

 Ulloa was one of the named plaintiffs in a Title VII class action *fn1" brought on behalf of unsuccessful and prospective Hispanic applicants to the Philadelphia Police Department. The plaintiffs alleged that hiring decisions were made on a discriminatory basis.

 Ulloa's application was rejected by the Police Department because of his chronic problem with depth perception. The review panel affirmed that decision by a two-to-one vote. Pursuant to the consent order, this court received memoranda, held an evidentiary hearing on August 5 and 7, 1985, and heard oral argument on December 19, 1985, on Ulloa's rejected application. Petitioner conceded that he was not "presently qualified" under the depth perception standards then used by the Police Department. Ulloa's claim at that time, zealously pursued by his counsel, was that the Police Department's vision standards unconstitutionally discriminated against him, and that they were discriminatorily applied to him. Despite extensive discovery and exhaustive presentation, Ulloa's counsel was unable to convince this court *fn2" (or the Court of Appeals) *fn3" that the Police Department's vision standards were irrational or that they were discriminatorily applied to Ulloa.

 Petitioner subsequently filed motions under Fed. R. Civ. P. 60(b)(2) to have this court reopen the record on the basis of alleged "newly discovered evidence." *fn4" The City responded to the motions, and this court held a hearing and oral argument to determine whether the motions should be granted. During closing argument on November 20, 1987, petitioner's counsel submitted a motion under Fed.R.Civ. P. 15(b), which requested that the court allow an amendment of his previous motions to conform to his view of the evidence and include claims of fraud under Fed. R. Civ. P. 60(b)(3). For the reasons stated below, petitioner's Rule 60(b)(2) motions and his Rule 15(b) motion will be denied. Even if this court were to grant petitioner's Rule 15(b) motion, the Rule 60(b)(3) motion would be denied on its merits.

 MOTIONS UNDER RULE 60

 Fed. R. Civ. P. 60(b) provides:

 
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) . . .

 The Court of Appeals interprets "newly discovered evidence" to refer "to evidence of facts in existence at the time of trial of which the aggrieved party was excusably ignorant." Brown v. Pennsylvania Railroad Co., 282 F.2d 522, 524-25 (3d Cir. 1960), cert. denied, 365 U.S. 818, 5 L. Ed. 2d 696, 81 S. Ct. 690 (1961); see also Peacock v. Board of School Commissioners, 721 F.2d 210, 214 (7th Cir. 1983).

 The evidence must have been in existence at the time of the trial (or hearing upon which decision was based), and the movant must have been unable after some effort to have discovered such evidence in time to move for a new trial. The burden on the movant is heavy, and he must show that "the evidence is not merely cumulative or impeaching, that it is material, and that a new trial in which the evidence was introduced would probably produce a different result." Johnson Waste Materials v. Marshall, 611 F.2d 593, 597 (5th Cir. 1980); see also Peacock, supra, 721 F.2d at 213-14. While the court gave petitioner the benefit of any doubt in admitting evidence on the record at the hearing, our decision on that evidence is limited to "newly discovered evidence" as that term is described above.

 Evidence on the Treatment of Petitioner's Brother

 Petitioner argues that his brother, Adoniram Ulloa ("Adoniram"), was treated in a discriminatory manner and that such treatment is somehow relevant to petitioner's case. He contends that Adoniram was medically certified to be a police officer, but later reevaluated for a hearing deficiency (deafness in his right ear) and denied entrance to the Police Academy. After Adoniram's counsel (also counsel here) filed a motion for a temporary restraining order against the City defendants, Adoniram was permitted to enter the Academy with ...


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