Case: 18-30602 Document: 00514693434 Page: 1 Date Filed: 10/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30602 October 23, 2018
Summary Calendar
Lyle W. Cayce
Clerk
AUDREY RAYFORD; DARRYL RAYFORD,
Plaintiffs - Appellants
v.
KARL STORZ ENDOSCOPY AMERICA, INCORPORATED; KARL STORZ
ENDOVISION, INCORPORATED,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:15-CV-2835
Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM:*
Audrey Rayford sued Karl Storz Endoscopy-America, Inc. and Karl Storz
Endovision, Inc. (collectively the “Storz Defendants”) under the Louisiana
Products Liability Act for complications following a uterine surgery. Storz filed
a summary judgment motion, which the court granted after receiving no reply
from Rayford. A week later, Rayford responded by filing a motion under Rule
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-30602 Document: 00514693434 Page: 2 Date Filed: 10/23/2018
No. 18-30602
60(b) of the Federal Rules of Civil Procedure to vacate the judgment. The
district court denied the motion, and Rayford now appeals. Because the
district court did not abuse its discretion, we AFFIRM.
I.
Rayford sued the Storz Defendants for complications arising after she
received uterine surgery. On March 7, 2018, after two-and-a-half years of
litigation, the Storz Defendants filed a motion for summary judgment. A day
later, the district court sent out a notice requiring any party opposing the
motion to file a response within twenty-one days. 1 Rayford did not respond.
So, on April 3, the district court granted the motion for summary judgment
with a full opinion addressing the merits of the case.
A week later, Rayford’s counsel filed a Rule 60(b) motion to vacate the
judgment. Rayford’s counsel claimed that he missed the deadline because a
paralegal unexpectedly quit and did not calendar the deadline. He also claims
that he has an illness that prevents him from visiting the office. The district
court denied the motion. Rayford now appeals.
II.
The “decision to grant or deny relief under Rule 60(b) lies within the
sound discretion of the district court and will be reversed only for abuse of that
discretion.” Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en
banc); see also Brittingham v. Wells Fargo Bank, N.A., 543 F. App’x 372, 373-
74 (5th Cir. 2013) (per curiam) (unpublished). Here, Rayford argues that the
district court abused its discretion by denying her relief under Rules 60(b)(1)
and 60(b)(6).
1The motion for summary judgment came a day before the dispositive motion deadline that
the court set over 6 months before, on August 16, 2017.
2
Case: 18-30602 Document: 00514693434 Page: 3 Date Filed: 10/23/2018
No. 18-30602
Rule 60(b)(1) provides that a court “may relieve a party or its legal
representative from a final judgment, order, or proceeding,” on the grounds of
“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1).
Plaintiffs argue that their failure to file a timely motion to reconsider and
vacate the summary judgment order due to a paralegal’s sudden exit and
failure to calendar the summary judgment deadline constitutes “excusable
neglect.” This argument is unavailing.
A district court does not abuse its discretion when it denies a Rule
60(b)(1) motion due to the “careless mistake of counsel.” Brittingham, 543 F.
App’x at 374 (per curiam) (unpublished); see also Edward H. Bohlin Co., Inc.
v. Banning Co., Inc., 6 F.3d 350, 356-57 (5th Cir. 1993). In fact, our case law
establishes the opposite: “a court would abuse its discretion if it were to reopen
a case under Rule 60(b)(1) when the reason asserted as justifying relief is one
attributable solely to counsel’s carelessness with or misapprehension of the law
or the applicable rules of court.” Edward H. Bohlin Co., Inc., 6 F.3d at 357.
Calendaring errors and mistakes about deadlines qualify as a careless
mistake of counsel, as we have held numerous times, both before and after the
Supreme Court’s ruling in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380 (1993). See, e.g., Brittingham, 543 F. App’x at 374 (per
curiam) (affirming the district court’s ruling that a “calendar error” is not
excusable neglect) (unpublished); Buckmire v. Mem’l Hermann Healthcare Sys.
Inc., 456 Fed. App’x 431, 432 (5th Cir. 2012) (per curiam) (affirming the district
court’s ruling that an attorney’s failure to calendar a court deadline is not
excusable neglect) (unpublished); Smith v. Alumax Extrusions, Inc., 868 F.2d
1469, 1471 (5th Cir. 1989) (affirming the district court’s ruling that being
unaware of “pending summary judgment motions” did not constitute excusable
neglect). Accordingly, we cannot conclude that the district court abused its
discretion in denying Rule 60(b)(1) relief.
3
Case: 18-30602 Document: 00514693434 Page: 4 Date Filed: 10/23/2018
No. 18-30602
Plaintiffs also seek relief under Rule 60(b)(6). Subsection (6) is a “catch-
all provision, meant to encompass circumstances not covered by Rule 60(b)’s
other enumerated provisions.” Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir.
2002). Courts should only grant Rule 60(b)(6) motions “if extraordinary
circumstances are present.” Id. (internal citation and quotation marks
omitted). Missing a deadline, however, is not an extraordinary circumstance.
Cf. Gonzalez v. Crosby, 545 U.S. 524, 537 (2005) (concluding that a litigant’s
“lack of diligence” makes the circumstances “all the less extraordinary”). Thus,
it was not an abuse of discretion to deny Rule 60(b)(6) relief.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
4