IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20822
Summary Calendar
JAMES McARTHUR,
Plaintiff-Appellant,
versus
CROWN CORK & SEAL,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(H-00-CV-4451)
December 4, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
James McArthur appeals the district court’s denial of his
motion to reconsider its grant of summary judgment to the
defendant. Appellant asserts that the district court abused its
discretion in not granting his motion to reconsider. We agree and
reverse the summary judgment award.
Defendant filed a motion for summary judgment several months
before the deadline for completing discovery. Prior to the
*
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this opinion should not be published and is not precedent except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.
deadline for filing a response, the plaintiff filed a “Motion to
Modify and Extend the Docket Control Order [90 days].” The
plaintiff did not respond to the summary judgment motion. Rather,
in the motion to modify the docket control order, plaintiff
requested that the response to summary judgment be “abated.” This
request was made three times in a three-page motion, including once
as a separately numbered paragraph (number 3 of 5). Specifically,
plaintiff suggested “any new docket control order move the summary
judgment respond [sic] after the close of discovery in order that
the Court be provided a full response....” The district court
granted this motion and entered an Amended Docket Control Order.
In granting the motion, the district court did not
specifically rule on the portion of the motion asking that the
response be “abated,” specifically until the discovery deadline.
In the amended control order, the discover deadline was pushed back
as requested, but no mention of the response deadline was made.
Under the applicable rules, the deadline for a response had already
passed when the court entered its order unless the court had
modified the deadline by granting the motion.
The plaintiff and defendant both continued to conduct
discovery. On May 20, 2002, four days before the completion of
discovery deadline, the district court granted the defendant’s
summary judgment motion. The court stated that “although the
motion was filed on November 13, 2001, plaintiff, James McArthur,
has not responded to it.” Eight days later plaintiff filed the
2
motion at issue, entitled “Plaintiff’s, James McArthur, Rule 59(E)
Motion for Reconsideration (Motion to Alter or Amend Judgment).”
In setting out his reasons in support of the motion, the plaintiff
stated that he had filed a motion “requesting abatement of the
summary judgment response” and that this motion had been granted.
Plaintiff also noted that he was unsure when the response was due,
but worked under the assumption that it was due at the end of the
discovery period as he had requested in the motion that was granted
by the district court. The district court denied the motion to
reconsider, stating only that “Because plaintiff has not stated any
legitimate reason for his failure to respond to Defendant’s Motion
for Summary Judgment, the motion is DENIED.”
We review a district court’s refusal to grant a motion under
either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil
Procedure for abuse of discretion.1 Although the plaintiff’s motion
was labeled as a Rule 59(e) motion, this court has held:
Nonetheless, we have oft stated that “[t]he relief sought,
that to be granted, or within the power of the Court to
grant, should be determined by substance, not a label.”
Accordingly, we may treat this pleading as either a Rule
59(e) motion to alter or amend the judgment or a Rule 60(b)
motion for relief from the judgment.2
1
Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350,
353 (5th Cir. 1993).
2
Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.
1996)(citations omitted).
3
Typically, when the motion was filed determines under which rule the
motion falls.3 However, the substance of the present motion is more
appropriate for a Rule 60(b) motion.
Here, the district court abused its discretion. A very similar
case was presented to this court in Bohlin.4 Similar to the appellant
here, the appellant in Bohlin failed to file an answer to a motion to
dismiss. The appellant claimed that it had understood a court order
which allowed 60 days for discovery on an unrelated application for
a temporary restraining order to suspend local rules which required
a response to the motion to dismiss within 20 days.5 The district
court rejected this argument in denying a motion for reconsideration
filed by the appellant, and this court upheld the district court’s
denial.6 This court examined the motion to reconsider as both a Rule
59(e) and Rule 60(b) motion. In upholding the district court’s
denial of the motion to reconsider, this court found that the
district court never “explicitly nor implicitly suspended the local
rules governing the timing of responses to motions. Neither did the
3
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167,
173 (5th Cir. 1990)(noting that a motion filed within 10 days of the
final judgment is considered a Rule 59(e) motion, and those after
that must be considered Rule 60 motions).
4
6 F.3d 350.
5
Id. at 352-53.
6
Id. at 352.
4
court explicitly or implicitly rule that it would delay consideration
of the subject motion for sixty days.”7
Unlike the appellant in Bohlin, in the present case the
appellant has made a persuasive argument that the district court did
in fact modify the due date for the response to the motion for
summary judgment. Appellant’s Motion to Modify and Extend the
Docket Control Order clearly requested an “abatement” of the deadline
for filing a response to the summary judgment motion, specifically
until after the deadline for completion of discovery. This motion
was granted, and a new docket control order was entered. Although
the court’s new order did not specifically mention a new deadline for
the response to the summary judgment motion, it did set a new
deadline for completing discovery, and surely there was no need to
continue discovery if the record had closed for summary judgment. In
these circumstances, granting the motion in full without mention of
the three separate requests that the deadline for the response be
extended, the district court at least implicitly extended the
deadline for the response.
This is the kind of mistake and excusable neglect that Rule
60(b) was meant to correct.8 We therefore conclude that the district
court abused its discretion in not granting appellant’s motion to
7
Id. at 355.
8
See Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d 933,
938-39 (5th Cir. 1999).
5
reconsider. The grant of summary judgment is reversed and the case
is remanded for further proceedings, including the filing of any
response to the motion for summary judgment.
REVERSED and REMANDED.
6