United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE.
Earl Stone and Edmund Gizinski. former Cheverly Police
Officers, bring claims against the Town of Cheverly and Chief
of Police Harry Robshaw. Town Administrator David Warrington.
and Sergeant Jarod J. Towers, individually and in their
official capacities, related to Robshaw's and
Warrington's alleged pattern of discrimination and
retaliation within the Cheverly Police Department. On
September 5. 201 7, the Court issued an Order dismissing
eight of the ten counts set forth in the Complaint. ECF No.
34. Plaintiffs now move the Court to amend judgment and
reconsider that Order. ECF No. 40-1. Defendants filed an
opposition to Plaintiffs* Motion. ECF No. 41, to which
Plaintiffs have not replied. No hearing is necessary. Loc. R.
105.6 (D. Md. 2016). For the following reasons.
Plaintiffs" Motion is denied.
brought a myriad of federal and state claims related to
Defendants' alleged pattern of discrimination and
retaliation. ECF No. 2. but because Plaintiffs failed to meet
the specific procedural requirements associated with many of
the remedies they sought, the Court dismissed all but two of
these claims. Only Stone's federal age discrimination
claim within Count 1 and Stone and Gizinski's claims
under 42 U.S.C. § 1985(2) within Count 7 remain.
See ECF No. 34 ¶ 3. As related to Plaintiffs
Motion herein, the Court dismissed all of Plaintiffs"
state law claims because Plaintiffs did not strictly or
substantially comply with the statutory notice requirements
set forth in the Local Government Tort Claims Act
("LGTCA"). Md. Code Ann.. Cts & Jud. Proc.
§ 5-304. See ECF No. 33 at 15. Nor did
Plaintiffs demonstrate good cause for their failure to
Court also dismissed Plaintiffs' claim that they were
retaliated against for engaging in protected activity and for
opposing practices made unlawful by the Americans with
Disabilities Act ("ADA") and Age Discrimination in
Employment Act ("ADEA"). The Court found that
Plaintiffs failed to exhaust their administrative remedies
with the Equal Employment Opportunity Commission
("EEOC") because Plaintiffs" EEOC charge of
discrimination did not put their employer on notice of any
potential ADA and ADEA retaliation claims. Id. at
19. Rather, the EEOC charge only alleged that Plaintiffs were
retaliated against for engaging in conduct protected under
Title VII of the Civil Rights Act. and the ADA and ADEA
retaliation claims could not be expected to follow from a
reasonable administrative investigation into their Title
VII-related allegations. Id. at 19.
now seek relief from the Court's prior Order, styling
their motion as a "Motion to Amend Judgment and For
Reconsideration."" ECF No. 40. Plaintiffs argue
that their state law claims should not be dismissed for
failure to comply with the LGTCA notice provisions because
such provisions are inapplicable to defendants sued in their
individual capacity for torts committed with malice, evil
intent, or recklessness. See ECF No. 40-1 at 2.
Plaintiffs also argue that their EEOC charge was sufficient
to exhaust their administrative remedies for their
retaliation claims, hi. Pursuant to Local Rule
105.10 (D. Md. 2016). a motion to reconsider any order issued
by the Court shall be filed within fourteen days, except as
otherwise provided in Federal Rules of Civil Procedure 50.
52, 59, or 60. Plaintiffs' motion was filed on October 1.
2017, more than fourteen days after the Court's September
5. 2017 Order, ECF No. 34. and is untimely. Therefore,
Plaintiffs' motion will only be considered if allowed by
one of the enumerated Federal Rules.
do not mention these Rules, any other Federal or Local Rules,
or any other legal authority as a basis for why the Court
should reconsider its prior ruling. Of the four rules
referenced in Local Rule 105.10. only Rules 59(e) and 60 are
potentially applicable; however. neither rule can provide the
relief Plaintiffs seek. Rule 59(e) provides that a motion to
alter or amend a judgment "must be filed no later than
28 days after the entry of the judgment." However,
because the Court did not dismiss all of Plaintiffs'
claims, the Order is not presently a "judgment" in
that it is not an "order from which an appeal
lies." See Fed R. Civ. P. 54(a); 54(b) (noting
that any order or decision that adjudicates fewer than all
the claims does not end the action unless the court expressly
directs entry of a final judgment as to one or more of the
claims). Therefore. Plaintiffs cannot seek relief through
provides that the Court may relieve a party from an Order for
the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence . . .; (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 .. .: (6) any other
reason that justifies relief.
See Fed. R. Civ. P. 60)(b)(1)-(6). Plaintiffs do not
allege that any of the five enumerated reasons apply, and the
Court finds that their arguments in support of their Motion
do not justify relief under Rule 60(b)(6). See Bowell v.
State Farm Fire and Cos. Auto. Ins. Co., 993 F.2d 46, 48
(4th Cir. 1993) (Rule 60(b)(6) is a Catchall provision
limited to "situations involving extraordinary
opposition to Defendants' Motion to Dismiss, or
Alternatively, for Summary Judgment. ECF No. 19. Plaintiffs
unsuccessfully argued that the Court should excuse their
failure to comply with the notice requirements of the LGTCA
because their failure to do so did not prejudice Defendants.
ECF No. 23 at 57. Plaintiffs now argue that the LGTCA's
notice provisions do not apply to individual defendants
acting with malice. See ECF No. 40-1 at 3 ("in
each of the following state law claims [Plaintiffs] are
asserting malicious conduct and/or a reckless disregard for
Plaintiffs' protected rights which takes the conduct
outside the notice provisions and protections of the
LGTCA"). However, the Court will not consider the merits
of such an argument for the first time herein because a Rule
60(b)(6) motion "is not an appropriate place to slip in
arguments that should have been made earlier." See
Karraker v. Rent-A-Center. Inc., 411 F.3d 831. 837 (7th
Cir. 2005); see also United States v. Williams. 674
F.2d 310. 312-13 (4th Cir. 1982) ("Rule 60(b) does not
authorize a motion merely for reconsideration of a legal
Plaintiffs provide no issue for the Court to reconsider with
respect to their ADA and ADEA retaliation claims. Plaintiffs
repeat their prior argument that their "EEO charge
clearly mentions that they were retaliated against for
opposing and participating in Ofc. Schmidt's
discrimination and retaliation case." ECF No. 40-1 at
11. But Plaintiffs fail to acknowledge that while the Court
did find that their EEO charge mentioned
discrimination and retaliation, the Court determined that the
Charge was limited to conduct relating to discrimination and
retaliation under Title VII, not the ADEA or ADA. Plaintiffs
provide no additional arguments to even suggest that the
Court erred in this regard, but Plaintiffs are free to appeal