The opinion of the court was delivered by: Conti, District Judge
In this memorandum order, the court considers plaintiff Mark D. Shenkan's ("plaintiff" or "Shenkan") amended motion to open judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. After considering the motion, the briefs submitted by plaintiff and defendant John Potter, Postmaster General ("defendant") and the exhibits attached thereto, the court will deny plaintiff's motion.
Facts and Procedural History
On February 13, 2001, plaintiff filed a complaint with this court against defendant alleging one count of "discrimination based on improper medical inquiries and examinations" and one count of "discrimination based on improper refusal to hire and failure to accommodate" in violation of "the Americans with Disabilities Act, 42 U.S.C. § 12112(d), as incorporated into the Rehabilitation Act, 29 U.S.C. §§ 791(g) and 794(b), as well as federal regulations implementing the Rehabilitation Act set forth at 29 C.F.R. §§ 1614.203(b), (e) and 29 C.F.R. § 1630.00 et seq." Compl. at 8, 10. On October 11, 2001, defendant filed a motion to dismiss plaintiff's complaint in its entirety.
On January 7, 2002, plaintiff filed a motion under Rule 56(f) of the Federal Rules of Civil Procedure requesting a limited period of discovery. On March 6, 2002, this court granted plaintiff's motion and ruled that plaintiff was entitled to 90 days of limited discovery, including two depositions and 25 interrogatories to be served on defendant.
On August 15, 2002, this court, in a written opinion, granted defendant's motion to dismiss and administratively closed the case. The court held that plaintiff's two individual claims of discrimination on November 28, 1995, and in or about November of 1997 were actionable. Plaintiff, however, did not contact an EEO counselor until three years after the first act and four months after the second act occurred. The court found, therefore, that plaintiff's claims were barred under the applicable administrative requirements*fn1 . The court also rejected plaintiff's claims of a continuing violation theory because plaintiff could not show that at least one act of discrimination occurred within the filing period, i.e., 45 days prior to March 17, 1998, the day plaintiff contacted an EEO counselor. In addition, the court held that the allegations in the complaint also could not support a continuing violation theory. The court noted that each of the two decisions not to hire plaintiff were for different reasons, the decisions were made by two different Postal Service facilities, and plaintiff was denied employment on two different occasions, supporting the notion that the two events were isolated incidents. Finally, the court, following applicable precedent, rejected plaintiff's attempts to apply the systemic violation theory of the continuing violation doctrine to this case.
On September 9, 2002, plaintiff filed a notice of appeal with the United States Court of Appeals for the Third Circuit. On August 27, 2003, the Court of Appeals issued an opinion affirming the order of the district court. The court of appeals agreed with the district court that plaintiff is "really complaining of two failures to hire, which are 'isolated, intermittent acts of discrimination'." Shenkan v. Potter, 71 Fed. Appx. 893, 895 (3d Cir. 2003)(quoting West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995)). The court held that such events "are 'not susceptible to a continuing violation analysis'." Shenkan, 71 Fed. Appx. at 895 (quoting Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 483-84 (3d Cir. 1997)).
Plaintiff subsequently appealed the case to the United States Supreme Court. On March 1, 2004, the Court denied plaintiff's petition for certiorari. On March 1, 2005, plaintiff filed a motion with this court requesting to open judgment pursuant to Rule 60(b)(1-3). On August 31, 2005, the court held a hearing on that motion. On that same day, mere hours prior to the commencement of the hearing, plaintiff filed an "Amended Motion to Open Judgment Pursuant to Rule 60(B) (sic) and Set Up a Briefing Schedule." In that amended motion, plaintiff, for the first time, indicated that he was seeking relief under Federal Rule of Civil Procedure 60(b)(6).
"The remedy provided by Rule 60(b) is 'extraordinary, and special circumstances must justify granting relief under it'." Moolenaar v. Gov't of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987)(quoting Page v. Schweiker, 786 F.2d 150, 158 (3d Cir. 1986)). Plaintiff moves to open the judgment in this case pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. Rule 60(b) states in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. FED. R. CIV. P. 60(b)(emphasis added)*fn2.
In Stradley v. Cortez, the United States Court of Appeals for the Third Circuit held that "[r]elief under 60(b)(6) is not limited by any strictly defined time period. Rather, relief can be afforded under this rule if it is sought 'within a reasonable time'." 518 F.2d 488, 493 (3d Cir. 1975). Despite that point, the court also stated: "Nevertheless, Rule 60(b)(6) is not intended as a means by which the time limitations of 60(b)(1-3) may be circumvented. Rule 60(b)(6) is available only in cases evidencing extraordinary circumstances and only when the relief sought is based upon 'any other reason' than a reason which would warrant relief under 60(b)(1-5) ." Id. (citing Ackerman v. United States, 340 U.S. 193, 200 (1950); Fed. Deposit Ins. Corp. v. Alker, 234 F.2d 113, 116-7 (3d Cir. 1956))(emphasis added).
The court's ruling in Stradley raises two issues pertinent to this case. First, the court notes that plaintiff originally filed his motion for relief from judgment under Rule 60(b)(1-3). On the date of the hearing, plaintiff abruptly filed an additional motion in an attempt to convert his motion to one requesting relief under Rule 60(b)(6). As the court noted earlier, the one-year limitation period for relief under Rule 60(b)(1-3) is not tolled by an appeal. Moolenaar, 822 F.2d at 1346n.5. Plaintiff's motion under Rule 60(b)(1-3), therefore, to be considered by the court at the August 31, 2005 hearing, would have been untimely and denied*fn3 . The court finds that plaintiff's attempt to re-cast his motion as a Rule 60(b)(6) motion is little more than an attempt to avoid the one-year time limitation under Rule 60(b)(1-3)*fn4 . Such an end run around the time limitation period applicable to Rule 60(b)(1-3) is expressly forbidden under applicable precedent. Stradley, 518 F.2d at 493; Gambocz v. Ellmyer, 438 F.2d 915, 916 (3d Cir. 1971)("...[s]section 6 [of Rule 60(b)] may not be used as a catchall to avoid the one-year limitation.").
Second, the court in Stradley specifically noted that relief under Rule 60(b)(6) is available only for extraordinary circumstances and for reasons that would not warrant relief under Rule 60(b)(1-5). Upon a review of plaintiff's motion and briefing, the court finds that plaintiff complains of the failure of defendant to turn over an employment application during the discovery phase of this case. Plaintiff argues that the failure of defendant to produce this document is the result of misconduct. ...