IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40946
Summary Calendar
ESPERANZA ALANIZ; VALENTINE GONZALEZ; CHARLES KIRK;
LESTER EWING; JOSEPH MORENO; ROSALIO SUAREZ;
LESTER MAYBERRY; CHARLES BRYSON,
Plaintiffs-Appellants,
versus
ANTONIO GONZALES, Individually and in his Official
Capacity as Sheriff of Kleberg County Texas,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-97-CV-450
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June 30, 1999
Before KING, Chief Judge, EMILIO M. GARZA, and DeMOSS, Circuit
Judges.
PER CURIAM:*
Esperanza Alaniz, Valentine Gonzalez, Charles Kirk, Lester
Ewing, Joseph Moreno, Rosalio Suarez, Lester Mayberry, and
Charles Bryson filed a civil rights complaint against Antonio
Gonzalez, a newly-elected sheriff, alleging that Gonzales
violated their First and Fourteenth Amendment rights when he
refused to retain them after he was elected. The district court
granted summary judgment for Gonzales.
*
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that this opinion should not be published and is not precedent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.
The plaintiffs-appellants argue that the district court
abused its discretion when it refused to grant their motion
brought pursuant to Fed. R. Civ. P. Rule 60(b), asking the court
to vacate its denial of their motion to file an out-of-time
response to Gonzales’s motion for summary judgment. Despite its
caption, the plaintiffs’ motion for relief fell only under Rule
59(e). See Burt v. Ware, 14 F.3d 256, 258 (5th Cir. 1994); Ford
v. Elsbury, 32 F.3d 931, 937 & nn. 7, 8 (5th Cir. 1994).
Inasmuch as counsel for plaintiffs simply missed the deadline to
file an opposition, the district court’s denial of Rule 59(e)
relief was not an abuse of discretion. See Pioneer Investment v.
Brunswick, 507 U.S. 380 (1993); Midland West Corp. v. Federal
Deposit Ins. Corp., 911 F.2d 1141, 1145 (5th Cir. 1990).
The plaintiffs also argue that they were entitled to a new
trial pursuant to Fed. R. Civ. P. 59(e) on the merits of their
political retaliation claims. Gonzales’s summary judgment
evidence established that his hiring decisions were not based on
political considerations, and the plaintiffs failed to carry
their burden of showing that a genuine issue of material fact
existed so as to preclude summary judgment. Thus, the district
court’s summary judgment for Gonzales was reasonable, and its
denial of relief pursuant to Rule 59(e) was not an abuse of
discretion. See Midland West Corp., 911 F.2d at 1145; Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.
Liberty Lobby, 477 U.S. 242, 250 (1986); Correa v. Fischer, 982
F.2d 931, 933 (5th Cir. 1993).
Plaintiff Kirk argues that he was entitled to relief under
Rules 60(b) and 59(e) from summary judgment for Gonzales on his
claim under the Fair Labor Standards Act. See 29 U.S.C. § 207;
Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995).
Kirk failed to come forward with any evidence establishing his
employment by the county during the time he alleged he was
entitled to overtime pay. Accordingly, summary judgment for
Gonzales was appropriate on this claim as well, and the district
court’s denial of post-judgment relief was not an abuse of
discretion. See Midland West Corp., 911 F.2d at 1145.
The judgment of the district court is AFFIRMED.