IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-10132
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff,
OTIS C. TOLBERT,
Intervenor Plaintiff-Appellant,
VERSUS
DALLAS AREA RAPID TRANSIT,
Intervenor Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:93-CV-44-R)
_________________________
August 30, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Otis Tolbert appeals a summary judgment and the denial of his
post-judgment motions. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R.47.5.4.
I.
The United States brought an action against Dallas Area Rapid
Transit (“DART”) in 1993, alleging that it had retaliated against
him in violation of title VII of the Civil Rights Act of 1964.
DART entered into a consent decree with the United States, part of
which required DART to offer Tolbert the opportunity to accept, at
his option, the next “vacancy” at DART in the position of “Manager
of Equal Employment Opportunity.”
Tolbert brought this suit in 1994, alleging that DART had
violated the consent decree. DART filed a motion for summary
judgment to which Tolbert failed to respond; the district court
therefore accepted DART's evidence as undisputed. The court
concluded that the consent decree required DART to offer Tolbert
the position only if a vacancy became available. Concluding that
no vacancy had occurred, the court entered summary judgment.
II.
Construing Tolbert’s pro se brief liberally, we glean that he
first claims that DART failed to comply with FED. R. CIV. P. 5(b) in
serving him with that motion. Tolbert did not raise this argument
during the summary judgment proceedings1 or in his motion to
reconsider, which the court treated as a timely motion under FED.
R. CIV. P. 59(e).
1
In fact, Tolbert did not raise any arguments during the summary judgment
process. Rather, he failed to respond at all to DART’s motion.
2
Tolbert did raise the issue in a subsequent motion under FED.
R. CIV. P. 60(b), a motion entitled “Motion for Leave to File
Supplemental Affidavits and Appeal.” The district court denied
this motion in a one-sentence order, and we review that denial for
abuse of discretion. See Latham v. Wells Fargo Bank, N.A., 987
F.2d 1199, 1203 (5th Cir. 1993) (per curiam) (stating that review
of denial of rule 60(b) motion is for abuse of discretion).
A.
There are two ways to construe Tolbert’s rule 60(b) motion.
The first is that it was made under rule 60(b)(1), which permits
relief from a judgment or order for excusable neglect (among other
things). See FED. R. CIV. P. 60(b)(1). In essence, this construc-
tion amounts to an argument that Tolbert would have responded to
the summary judgment motion if he had been served with it in a
proper fashion. Specifically, he alleges that DART tried to hand-
deliver the motion to him but left it at his home without giving it
to “some person of suitable age and discretion then residing
therein.” FED. R. CIV. P. 5(b).
One of DART’s attorneys certified in writing that she had
complied with the service requirements of rule 5(b) by sending the
motion to Tolbert on October 20, 1995, via certified mail (return
receipt requested and postage prepaid). This procedure complied
with rule 5(b). Tolbert disputes that the motion was mailed to
3
him, insisting that DART tried to hand-deliver it.
Tolbert presented the district court with an invoice from a
commercial courier service as "proof" that DART had tried to hand-
deliver the motion but had not complied with rule 5(b)’s require-
ments for hand-delivery. There is no indication, however, that the
invoice was for the attempted delivery of the summary judgment
motion, as there is nothing on the face of the invoice that
indicates that the courier tried to deliver anything more momentous
than an ordinary letter. In short, the invoice does not show that
DART had tried to serve Tolbert by hand-delivery and had failed to
comply with the hand-delivery requirements of rule 5(b).
Tolbert has not provided any other evidence to support his
claim of invalid service. Therefore, he has not demonstrated
excusable neglect, and the district court did not abuse its
discretion in denying the rule 60(b) motion to the extent that it
was based on a claim of excusable neglect.
B.
Alternatively, Tolbert could be arguing that DART had
fraudulently misrepresented to the court that he had been served in
a proper fashion. This would amount to a motion under rule
60(b)(3), which permits relief from a judgment or order for “fraud
. . ., misrepresentation, or other misconduct of an adverse party.”
Tolbert has failed, however, to demonstrate fraud, misrepre-
sentation, or other misconduct by DART. These allegations depend
4
on establishing that DART (1) had tried to hand-deliver the motion
to Tolbert, (2) had failed to comply with rule 5(b) in doing so;
and (3) had misrepresented that it had properly served Tolbert with
the motion.
Tolbert has failed to show that DART tried to hand-deliver the
motion. The record reflects that DART mailed the motion to Tolbert
in compliance with rule 5(b). Therefore, the district court did
not abuse its discretion in denying Tolbert’s rule 60(b) motion to
the extent that it was based on a claim of alleged fraud, misrepre-
sentation, or misconduct.
III.
The remainder of Tolbert’s brief is devoted to (1) scattered
accusations that DART made seemingly random misrepresentations to
the district court and (2) the contention that the district court
erred in finding that DART had not breached the consent decree.
With respect to the former, Tolbert has not shown any logical
connection between the alleged misrepresentations and the judgment
entered against him. He has failed to show that the alleged
misrepresentations affected his substantial rights, and we must
therefore disregard any error in the proceeding. See FED. R. CIV.
P. 61 (harmless error).
With respect to the latter, Tolbert’s failure to respond to
the summary judgment motion effectively doomed his case. The
5
evidence presented by DARTSSviewed as undisputed because of
Tolbert’s failure to contest it, see Eversley v. MBank Dallas, 843
F.2d 172, 173-74 (5th Cir. 1988)SSmade a prima facie showing of its
entitlement to judgment. That is, the consent decree required DART
to offer Tolbert the position only if it ever became vacant; it did
not require DART to create an opening for Tolbert. Furthermore,
DART’s evidenceSStaken as undisputedSSshowed that no vacancy had
occurred. The district court therefore did not err in granting
summary judgment.
The judgment is AFFIRMED. DART's request for sanctions on
appeal is DENIED.
6