Case: 17-40129 Document: 00514370115 Page: 1 Date Filed: 03/02/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40129
Fifth Circuit
FILED
Summary Calendar March 2, 2018
Lyle W. Cayce
PHILLIP DAVID HASKETT, Clerk
Plaintiff-Appellant
v.
CAPITAL LAND SERVICES, INCORPORATED, also known as CLS Group;
JASON WALKER; MATT TIPTON; UNKNOWN EMPLOYEES OF CLS
GROUP NUMBER 1 - NUMBER 9; UNKNOWN CLIENTS OF CLS GROUP
NUMBER 1 - NUMBER 9,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:14-CV-279
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Phillip David Haskett appeals the denial of his Federal Rule of Civil
Procedure 60 motion. We affirmed the district court’s summary judgment
dismissal of his complaint in a prior appeal. Haskett v. Capital Land Servs.,
Inc., 671 F. App’x 237, 237 (5th Cir. 2016). We held, inter alia, that Haskett
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-40129
waived review of whether the district court erred in granting summary
judgment without further notice by failing to raise this claim of error in the
district court. Id. Following our affirmance, Haskett filed the instant Rule 60
motion.
In the district court, Haskett argued that he should be relieved from the
dismissal on the merits of his age discrimination claim because the district
court induced his failure to contest this issue when it denied his discovery
motion and ordered him to address the timeliness of this claim. The relief
sought by Haskett was outside the scope of Rule 60(a). See Rivera v. PNS
Stores, Inc., 647 F.3d 188, 199 (5th Cir. 2011).
Rule 60(b)(1), Federal Rule of Civil Procedure, instructs that the district
court may provide relief from a final judgment for “mistake, inadvertence,
surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). A reasonable
construction of the district court’s order was that Haskett could reurge his
discovery motion, which would presumably assist him in opposing a dismissal
on the merits of his age discrimination claim, after the district court resolved
the timeliness of this claim. Before the district court did so, the defendants
stipulated that the claim was timely. At this point in time, it should have been
apparent to Haskett that he should inquire about the status of this claim or
reurge his motion for discovery. Haskett, however, did nothing.
Approximately nine months later, the district court granted the defendants’
motion for summary judgment. We conclude that the district court did not
abuse its discretion in denying Haskett Rule 60(b)(1) relief in these
circumstances. See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 352,
356-57 (5th Cir. 1993).
Given our conclusion, we need not address the defendants’ alternative
argument that our prior affirmance precluded the district court from altering
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No. 17-40129
the judgment. See Becker v. Tidewater, Inc., 586 F.3d 358, 368 n.8 (5th Cir.
2009). Additionally, we decline to sanction Haskett for pursuing the instant
appeal, as urged by the defendants, because we conclude that Haskett’s appeal
“involves legal points arguable on their merits” and is therefore not frivolous.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted).
The judgment of the district court is AFFIRMED.
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