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Hernandez v. Asap Employment Services, Inc.

United States District Court, E.D. Louisiana

January 5, 2018

BENNY HERNANDEZ
v.
ASAP EMPLOYMENT SERVICES, INC. ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Pro se plaintiff Benny Hernandez (“Hernandez”) moves the Court to reconsider its previous order[1] dismissing all claims asserted against defendants SPX Cooling Technologies, Inc. (“SPX”) and XCEL Erectors, Inc. (“XCEL”). For the following reasons, the Court denies Hernandez's motion.

         II.

         Hernandez filed this lawsuit alleging employment discrimination under the Americans with Disabilities Act (“ADA”). He asserts that he was injured while working for XCEL at a facility in Donaldsonville, Louisiana.[2] XCEL is a subcontractor that provides certain services at the facility.[3] SPX is XCEL's parent company.

         Hernandez claims that, following his accident, he was told to “go ahead and have surgery.”[4] He further contends that “months after surgery they came at me that I had done something wrong by not disclosing my disability and time of employment and time of injury.”[5] He then insists that “they [] took away [his] settlement.”[6]

         Hernandez filed three charges of discrimination against ASAP Employment Services, Inc., SPX, and XCEL. In relevant part, those charges state,

My employment . . . began July 1, 2014. In September 2014 I suffered an on the job injury at another location. I was unable to work. I filed for workers compensation. In April 2016 my case was settled; however, I was denied a full settlement. My attorney agreed to the settlement. I am still unable to work. . . . The company stated that I was denied the full settlement amount because I failed to reveal my disability during the hiring process. I believe I have been discriminated against because of my disability in violation of The Americans with Disabilities Act as amended.[7]

         In essence, Hernandez maintains that his employers refused to provide him with a “full settlement, ” thereby violating his rights under the ADA. On October 30, 2017, SPX and XCEL moved to dismiss Hernandez's claims against them, arguing that Hernandez has failed to plead facts sufficient to establish an actionable claim under the ADA. Hernandez did not respond to SPX and XCEL's motion.

         On November 20, 2017, for both procedural and substantive reasons, the Court granted SPX and XCEL's uncontested motion to dismiss. On December 22, 2017, Hernandez filed the instant motion for reconsideration. In his motion, Hernandez asserts that he did not respond to SPX and XCEL's motion because he was hospitalized from October 21, 2017 to November 13, 2017.[8] Accordingly, he asks the Court to revisit its decision to dismiss SPX and XCEL. The Court construes Hernandez's motion as a motion for relief from judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure.

         I.

         A.

         Hernandez argues that his failure to respond to SPX and XCEL's motion due to hospitalization constitutes excusable neglect.[9] “Rule 60(b) permits relief for mistake, inadvertence, surprise, or excusable neglect, among other reasons.” Federal Sav. And Loan Ins. Corp. v. Kroenke, 858 F.2d 1067, 1069 (5th Cir. 1988). However, “[t]o merit relief, a party must show that its failure to file a timely answer or otherwise defend resulted from justifiable neglect and that a fair probability of success on the merits existed if the judgment were to be set aside.” Id.

Several factors shape the framework of the court's consideration of a 60(b) motion: (1) That final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to do substantial justice; (4) whether the motion was made within a reasonable time; (5) whether-if the judgement was a default or a dismissal in which there was no consideration of the merits-the interest in deciding cases on the merits outweighs, in the particular case, the interest in the finality of judgments, and there is merit in the movant's claim or defense; (6) whether ...

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