Case: 09-30839 Document: 00511066176 Page: 1 Date Filed: 03/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 30, 2010
No. 09-30839
Summary Calendar Charles R. Fulbruge III
Clerk
KEITH MASON and JEANINE MASON,
Plaintiffs-Appellants,
versus
AUTO CLUB FAMILY INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-9483
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Keith and Jeanine Mason appeal the denial of their motion under Federal
Rule of Civil Procedure 60(b) for relief from a final judgment. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-30839 Document: 00511066176 Page: 2 Date Filed: 03/30/2010
No. 09-30839
I.
The Masons sued their homeowners’ insurer, Auto Club Family Insurance
Company (“Auto Club”),1 alleging that it had failed to pay for covered damage to
their house from Hurricane Katrina. The Masons were represented by James
Larose, III, and Wayne E. Garrett. Auto Club moved for judgment on the plead-
ings, arguing that the policy excluded claims for the damages at issue.
On March 17, 2008, the district court issued a notice of hearing on Auto
Club’s motion and set the date for April 2, 2008. Counsel for the Masons did not
file any memorandum in opposition to the motion, did not request a continuance,
and did not file for an extension of time. On April 10, the court granted Auto
Club’s motion, noting the lack of opposition and observing that “[a] motion for
reconsideration of this order based on the appropriate Federal Rule of Civil Pro-
cedure, if any, must be filed within thirty (30) days.”
Once again, plaintiffs’ counsel did nothing in response. The court entered
final judgment for Auto Club on May 20, 2008, dismissing the claims with preju-
dice and ordering the parties to bear their own costs.
On August 8, 2008, counsel for the Masons finally responded with a motion
for relief under rule 60. Counsel explained their inaction up to that point by say-
ing they had “misunderstood the purview of the motion” for judgment on the
pleadings. Garret had suffered from cardiac illness since 2005, counsel claimed,
but his condition had worsened in 2008, and as a result “certain matters [were]
neglected and not responded to.” Neither the rule 60 motion nor the accompany-
ing memorandum offered an excuse for Larose’s inaction.
The district court denied the motion. In November 2008, counsel moved
for reconsideration, again seeking relief under rule 60(b)(1) for “excusable ne-
glect,” explaining that attorney Larose had not registered for the district court’s
1
The defendant was misidentified as “AAA Insurance Company” in the original
petition.
2
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No. 09-30839
email notification system until April 29, 2008. The motion did not explain the
reason Larose had failed to register until then or to ask his co-counsel and office-
mate Garrett for information about the crucial deadlines. The motion gave no
explanation why Larose did nothing for the Masons’ case in the three weeks be-
tween his registration and the court’s final judgment order or why he waited
more than two months after final judgment to register opposition to the motion
for judgment.
The rule 60 motion did come with an attached affidavit, from Garrett’s doc-
tor, that only the most generous reader could call “supportive.” The affidavit
said only that Garrett had received a pacemaker implant in 2005, that he had
complained about “weakness . . . sweating and swooning,” and that changes were
made to his medication two days before the filing of the rule 60 motion. The affi-
davit did not indicate that Garrett’s condition had worsened in early 2008. It did
not say whether Garrett was unable to work, then or at any earlier time.
The district court denied the rule 60 motion. The Masons appeal.
II.
“[W]e recognize that the decision to grant or deny relief under [r]ule 60(b)
lies within the sound discretion of the district court and will be reversed only for
abuse of that discretion.” 2 Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.
2
In a supplemental memorandum to the district court, the Masons argued that the
“slight abuse” standard in Seven Elves, Inc. v. Eskenazi, 635 F.2d, 396 (5th Cir. Unit A Jan.
1981), should apply. There, we noted that “where denial of relief [under rule 60(b)] precludes
examination of the full merits of the cause, even a slight abuse may justify reversal.” Id. at
402.
The Masons have not renewed that argument on appeal, so it is waived. Even if we
were to consider it, the Seven Elves standard would be inappropriate here, because the district
court addressed the merits of the motion for judgment before rendering judgment. Even if we
did apply the Seven Elves standard, it would make no difference, because the Masons have not
demonstrated even “slight abuse” by the district court.
3
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No. 09-30839
1996) (en banc). There is no abuse of discretion here. In denying the rule 60(b)
motion, the district court considered not only counsel’s inexplicable and inex-
cusable neglect, but also the merits of the motion for judgment on the pleadings.
The record indicates that the court was thorough, fair, and helpful.
AFFIRMED.
4