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Wu v. Zinke

United States District Court, D. New Mexico

February 21, 2019

LIMING WU, Plaintiff,
RYAN ZINKE, Secretary of the United States Department of the Interior, et al., Defendants.



         THIS MATTER is before the Court on Ms. Liming Wu's Motions to Set Aside Stipulated Order of Dismissal with Prejudice, filed on May 31, 2018 (Doc. 58;[1] 17cv0113, Doc. 42), and Ms. Wu's Motions to Set Aside Settlement Agreement and Order of (sic) Granting Defendant's Motion to Enforce Settlement Agreement, filed on August 20, 2018 (Doc. 65; 17cv0113, Doc. 56).

         I. Factual and Procedural Background

         Ms. Liming Wu was employed as a geologist with the Bureau of Land Management (BLM), an agency of the United States Department of the Interior (DOI). (Doc. 74 (4th Am. Compl.) ¶ 4.) In early 2014, Ms. Wu, acting pro se, filed her original civil rights complaint against the DOI in this Court. (See Doc. 1.) She retained counsel and filed two amended complaints, bringing claims for race, national origin, and age discrimination; retaliation; and negligence under federal and state law. (See Docs. 4; 11-1.)

         In June 2015, Ms. Wu, accompanied by her son and represented by her attorney, Ms. Katherine Ferlic, attended a mediation with the DOI. (See Doc. 45.) The parties did not settle that day, but the DOI left its settlement offer open. (See id.; see also Doc. 61 at 2.) After further negotiations, the parties settled on terms and signed a settlement agreement (the Agreement) on July 22, 2015. (Doc. 53-1.) The Agreement provided that any revocation must be delivered within one week, or no later than July 29, 2015, to be valid. (See Id. ¶ 8; 61 at 2.) On July 27, 2015, Ms. Wu had a change of heart and informed her attorney that she wanted to revoke the Agreement. (See Doc. 58 at 3.) She and Ms. Ferlic met on July 28, 2015, and discussed the matter for much of the day. (Id. at 9.) That evening, Ms. Ferlic directed her assistant to deliver the revocation letter to FedEx. (Id.) FedEx delivered the letter on July 30, 2015, one day after the agreed-upon deadline. (See Id. at 25.)

         Unaware that the letter would arrive after the deadline, Ms. Ferlic filed a motion to inform the Court that the parties were still negotiating settlement and to request an extension of certain deadlines. (See Doc. 49.) Ms. Wu was ordered to return to work on August 3, 2015. (See Doc. 58 at 5.) Under great stress due to a burdensome work assignment, Ms. Wu lost consciousness at her home early on August 4, fell, and hit her head, suffering a traumatic brain injury. (See id.)

         On August 5, 2015, citing Ms. Wu's untimely revocation, the DOI moved to enforce the parties' Agreement. (Doc. 53.) Ms. Wu filed a notice of consent to the DOI's motion-and of her intent to abide by the Agreement-on the same day. (Doc. 54.) The Court granted the DOI's motion. (Doc. 55.) Within a week, Ms. Wu filed a stipulated motion to dismiss the lawsuit, and the Court entered its stipulated order dismissing the case with prejudice. (Docs. 56; 57.)

         Pursuant to the terms of the Agreement, the DOI paid Ms. Wu $200, 000 and promised to send her a neutral letter of recommendation, and Ms. Wu retired from federal service. (See Doc. 53-1 ¶¶ 7, 18.) Ms. Wu also agreed to withdraw and dismiss all of her complaints and appeals then pending, including: (1) her appeal before the Merit Systems Protection Board (MSPB), DE-1221- 15-0316-W-1; (2) her complaint before the Equal Employment Opportunity Commission (EEOC), BLM-14-0120; and (3) “any other formal or informal claim filed, or which could be filed with any other judicial body or administrative agency.” (Id. ¶ 3, see also Id. at 1; Docs. 83-1 (BLM-14-0120 complaint); 83-2 (MSPB appeal); 72 at 11-14 (MSPB jurisdictional statement).) In both administrative proceedings, Ms. Wu shared information about her supervisor, Ms. Sheila Mallory, who Ms. Wu alleged retaliated against her by directing another employee to reevaluate some work Ms. Wu had completed. (See Docs. 72 at 13; 83-1 at 24.) Ms. Wu alleged that Ms. Mallory's conduct violated the Trade Secrets Act, 18 U.S.C. § 105 (Doc. 72 at 13), the Federal Final Rule on Energy and Mineral Resources Cost Recovery, and the Whistle Blower Protection Act (Doc. 83-1 at 24-25.) Ms. Wu asserts that the DOI and its attorney, AUSA Karen Grohman, had notice of Ms. Mallory's conduct since at least April 2015. (Doc. 72 at 3.)

         Since the dismissal of her 2014 lawsuit, Ms. Wu has filed an additional EEOC complaint and two more lawsuits. (See Doc. 83-C (EEOC complaint, No. DOI-BLM-15-0909); see also 17cv0113; 18cv0813.) The Court consolidated her three cases. (Doc. 67.) Ms. Wu now asks the Court to set aside its order dismissing the 2014 lawsuit, the parties' Agreement, and the Court's order granting the motion to enforce the Agreement.

         I. Legal Standards

         Plaintiff's “pro se . . . pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers . . . .” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quotation omitted)). The Court may not, however, “serv[e] as the litigant's attorney in constructing arguments and searching the record.” Id. (citation omitted).

         “Rule 60(b) of the Federal Rules of Civil Procedure allows a court to relieve a party from a judgment or order for” a variety of reasons. See Payne v. Tri-State Careflight, LLC, 322 F.R.D. 647, 668 (D.N.M. 2017)). Relevant here, the Rule may relieve a party from judgment where there is “mistake, inadvertence, surprise, or excusable neglect;” Fed.R.Civ.P. 60(b)(2), “fraud . . ., misrepresentation, or misconduct by an opposing party;” Fed.R.Civ.P. 60(b)(3), or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). A party seeking relief under Rule 60(b)(1) through (3) must bring her motion “no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c)(1). “This deadline may not be extended and is not subject to the court's discretion.” Payne, 322 F.R.D. at 668 (citing Fed.R.Civ.P. 6(b)(2)).

         A motion under Rule 60(b)(6) does not have a strict time limit, but “must be made within a reasonable time . . . .” Fed.R.Civ.P. 60(c)(1). “[T]o avoid abrogating the one-year time limit for rule 60(b)(1) to (3), rule 60(b)'s ‘provisions are mutually exclusive, and thus a party who failed to take timely action due to [one of the enumerated reasons] may not seek relief more than a year after the judgment by resorting to subsection (6).'” Payne, 322 F.R.D. at 668 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 393 (1993) (internal quotation marks and citation omitted)).

         III. ...

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