Petition for Writ of Certiorari — James v. Rice University

Supreme Court, U.S.

; () FILEO

031152 FEB 10 2004

No. 03-

QPPIOE OF THE GLeAK

IN THE

Supreme Court of the United States

JUNE JAMES,

Petitioner,

v.

RICE UNIVERSITY, KRISTI SUTTERMAN and

KYLE CAVANAUGH,

. Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COurRT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RONALD H. TONKIN

Attorney for Petitioner

2777 Allen Parkway, Suite 1080

Houston, TX 77019

(713) 942-9111

185705 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

1

QUESTIONS PRESENTED

1. Whether a trial court abuses its discretion in denying

relief pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure for excusable neglect and/or in the interest of

justice where plaintiff’s counsel unbeknownst to her

committed gross malpractice in failing to appear at court

setting, failed to communicate with opposing counsel and

failed to produce discovery and where the facts constitute

“unusual or unique circumstances.

2. Whether the circuit court erred in failing to follow

the case law of its own circuit in addressing the Rule 60(b)

motion and the question of the abuse of discretion by the

district court.

il

TABLE OF CONTENTS

Page

Questions Propedied .... ices viscacwbadece. 1

wees OF COMES . os oka nie ll

Fable of Cited Authorities ...........5.0.-c0000 1V

rr ey v1

Copmnee BONO © oi ods caeane sea ]

Statement of Jurisdiction ..... .... ccc peecaacae ]

Statutory Provision Involved .................. l

satemnent of Gee CAG6 sis nn duan eee 2

A. Proceedyngs Below « ...osic ccacscaccus 2

B. Statement of the Facts... ..........4... 3

Reasons for Granting the Petition .............. 6

1. Petitioner’s Rule 60(b) motion was not a

substitute for mpg. .. 6... Ric ones icex: 10

2. Petitioner’s Rule 60(b) motion was made

within a “reasonable time.” .............. 11

3. Petitioner has not had an opportunity to

present her side of the controversy. ....... 11

ill

Contents

Page

4. Petitioner made every effort to monitor her

case against Rice University. .........--. 12

5. No great delay would have occurred had the

district court granted Petitioner’s Rule 60(b)

motion; malpractice action against Kelly

would be inadequate and fruitless. ........ 12

6. The district court’s denial of the Rule 60(b)

motion is contrary to case law from the Fifth

a lead dw Oe Kee aoe we a 13

necks cp een ses reevivencennes 15

iv

TABLE OF CITEDAUTHORITIES

Cases: ~

Associates Discount Corp. v. Goldman, 524 F.2d

Rk go A) ae ee

Bankers Mortgage Co. v. United States, 423 F.2d 73

(Sth Cir. 1970), cert. denied, 399 U.S. 927 (1970)

2 See See eee ee eR OSD ee Re Se ee ee Bee eee a ee

Blois v. Friday, 612 F.2d 939 (5" Cir. 1980)

Ellingsworth y. Chrysler, 665 F.2d 180 if? ce

1981)

Pe PO SS Pe Oe SS PR ee ORI SS Ce a Se oe a ae

Flaks a v. Little River Marine Constr. Co., 389 F.2d

ei ee

Hassenflu v. Pyke, 491 F.2d 1094 (5" Cir. 1974) ..

Liljeberg v. Health Serv. Acquisition Corp, 486 U.S.

FF ROUEN Acct 25h cede Pi ls he ees

Be PS SPA Re Oe BOE ae RU Ble ele Oe I ey ee aN we fe ae Oe ae a Ce

te ase ee eee |

Roberts v. Rehoboth Pharmacy, Inc., 574 F.2d 846

Cer ROO eos bee a ert a ceeee.

Page

14

14

Cited Authorities

Page

Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5" Cir.

Ree ee ee cae, 8,9, 11

i. 13

United States v. Gould, 301 F.2d 353 (5 Cir, 1962)

7,9, 10

Sa ig hee Oe ee ee ER Oe ee ee ee Ne

Weiss v. St. Paul Fire and Marine Ins. Co., 283 F.3d

790 (6" Cir. 2002), cert. denied, 537 U.S. 885

Pa | OR ee tetas 6

Statute:

7 UR SOM Or ~ i) MPO ae 1]

Rule:

Federal Rules of Civil Procedure 60(b) ....----- passim

vi

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Fifth Circuit Filed November

Pe Ore Preis ree uae la

Appendix B — Order Following Remand Of The

United States District Court For The Southern

District Of Texas Dated April 23, 2003 ........ 9a

Appendix C — Order Of The United States District

Court For The Southern District Of Texas Dated

Peper 15, ZOGk 5 ook ck cup vets vcewbesuin lla

l

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Fifth Circuit entered November 12, 2003 affirming the

dismissal of Petitioner’s case by the district court.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is unreported, but is reproduced as

Appendix A.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Fifth Circuit

rendered its unpublished opinion on November 12, 2003

affirming the judgment of the United States District Court

for the Southern District of Texas (Judge Lynn N. Hughes

presiding) which was entered April 23, 2003 denying

Petitioner’s motion to reconsider and reinstate her complaint

pursuant to Rule 60(b) of the Federal Rules of Civil

procedure.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

This case involves the interpretation of Rule 60(b) of

the Federal Rules of Civil Procedure and the standard for

abuse of discretion by a trial court.

2

STATEMENT OF THE CASE

A. Proceedings Below

Petitioner June James filed suit against Rice University

and two of her former supervisors in April of 2000 for racial

and national origin discrimination. On October 15, 2002,

because of her counsel’s neglect of the case and gross

malpractice, Rice University filed a Motion for Sanctions,

Including Dismissal or Want of Prosecution. On November

4, 2002, Judge Lynn N. Hughes dismissed Petitioner’s case

for want of prosecution.

On December 26,2002, unbeknownst to Petitioner, her

then-attorney, Rosalind Kelly filed on Petitioner’s behalf a

notice of appeal of the district court’s final judgment

dismissing Petitioner’s suit.

On December 30, 2002, Petitioner terminated Kelly’s

representation and retained other counsel to represent her in

pursuing her claims against Rice University. On January 8,

2003, Petitioner’s new counsel filed an Unopposed Motion

to Withdraw Counsel and Substitute Attorney-in-Charge for

Petitioner, in addition to Petitioner’s Motion for Relief from

Judgment and Motion to Reinstate (“Rule 60(b) motion”).

On January 13,2003, the district court granted

Petitioner’s motion to substitute new counsel of record, but

denied Petitioner’s Rule 60(b) motion, stating that it was

beyond the district court’s power to grant Petitioner’s

Rule 60(b) motion as it had been divested of jurisdiction

because Kelly had filed a notice of appeal.

FS Se PE AR 2 Diana Fe Be OE A RIE

3

On February 7, 2003, Petitioner timely filed an amended

notice of appeal, which amended her initial notice of appeal

by also appealing the district court’s denial of Petitioner’s

Rule 60(b) motion.

On February 10, 2003, Petitioner filed with the United

States Court of Appeals for the Fifth Circuit her Motion for

Limited Remand, asking the circuit court to remand the

instant matter to the district court for the limited purpose of

the district court considering Petitioner’s Rule 60(b) motion

and either granting or denying Petitioner’s Rule 60(b) motion

based upon its merits.

The Fifth Circuit granted Petitioner’s Motion for

Limited Remand on March 27, 2003. On remand, the

district court denied Petitioner’s Rule 60(b) motion on

April 24, 2003 which resulted in the appeal to the

Fifth Circuit. The Fifth Circuit on November 12, 2003

rendered its opinion affirming the judgment of the district

court in denying the Rule 60(b) motion. (Appendix A)

B. Statement of the Facts’

In the latter part of 2000, Petitioner retained the services

of Rosalind Kelly to represent her in a civil rights law suit

against Rice University. Throughout Kelly’s representation

of Petitioner, Petitioner consistently made numerous attempts

to keep herself informed of the progress of her case against

Rice University. To that end, Petitioner made frequent

telephone calls to Kelly’s office; made multiple visits to

Kelly’s office; and sent numerous faxes, e-mails, and letters

to Kelly’s attention.

1. All facts stated herein are fully supported by the record which

is on file with the district court in Houston, Texas.

4

Despite Petitioner’s efforts, on or around November 5,

2002 Kelly informed Petitioner that her case had been

“thrown out” by the district court, but that Kelly would get

her case reinstated.

Petitioner continued to be involved following the initial

dismissal by the district court. On or about November 7,

2002, Petitioner sent a letter to Kelly, wherein she requested

that Kelly keep her abreast of all future developments in the

case, and further, that Kelly forward all copies of documents

to her in connection with the case as such documents were

being sent or received by Kelly.

~ Between November 7 and 13, 2002, Petitioner continued

to attempt to stay informed about ner case, but Kelly refused

Petitioner’s calls and requests to meet. As a result, Petitioner

took it upon herself to “stake out” Kelly’s office to attempt

to catch Kelly for a conversation. On November 13, 2002,

after talking with friends who were attorneys, Petitioner went

to Kelly’s office and insisted that Kelly file a Motion to

Reconsider. Petitioner took such pains to be involved in her

case against Rice University that she even personally drove

from Kelly’s office in Dallas, Texas, to the federal courthouse

in Houston, Texas, to file with the district court a Motion to

Reconsider Dismissal of Action and Motion to Reinstate Case

to Court’s Active Docket.

On November 15, 2002, while in Houston, Petitioner

obtained a copy of her file from the District Court. Although

Petitioner knew that her case against Rice University had

been dismissed by the district court, it was only upon

obtaining a copy of her file that Petitioner learned that the

district court predicated its dismissal of her case upon the

gross negligence of Kelly, which gross negligence and

Set EAT OSes 2s New hin GRAIN

5

misconduct, according to the district court, took the form of

Kelly missing discovery deadlines, failing to communicate

with Rice University’s counsel, and failing to appear for a

conference. (Appendix 11a)

Upon Petitioner’s discovery that Kelly’s gross negligence

had led to the dismissal of the case, she contacted other

attorneys to determine her rights and to seek other

representation.

Ultimately, in December of 2002 Petitioner fired Kelly

and retained the service of another counsel to prosecute her

claims.

With new counsel at the helm, Petitioner filed a

Rule 60(b) motion on January 8, 2003, seeking relief from

the district court’s judgment dismissing her case. Following

the district court’s denial of Petitioner’s Rule 60(b) motion

because it believe it lacked jurisdiction to consider it, the

Fifth Circuit subsequently remanded Petitioner’s Rule 60(b)

motion to the district court after determining the district court

in fact possessed jurisdiction. The district court ultimately

denied Petitioner’s Rule 60(b) motion on April 24, 2003.

(Appendix 9a)

In its order denying Petitioner’s Rule 60(b) motion, the

district court stated that it was “James’ responsibility to

monitor-and, if necessary, replace her attorney”. The district.

court further noted that “James-whether through her own

error or her lawyer’s-repeatedly disobeyed the court’s orders.”

(Appendix 9a)

6

REASONS FOR GRANTING THE PETITION

A. In affirming the dismissal of Petitioner’s Rule 60(b)

motion, the Fifth Circuit held that “the mistakes of counsel,

who is the legal agent of the client, are chargeable to the

client ... no matter how ‘unfair’ this on occasion may

seem”. (Appendix 7a). The Court went on further to state

“[t]hus, no matter how much sympathy we may have for

Ms. Kelly’s personal situation or the prejudice her neglect

has inflicted upon her client, Ms. Kelly’s action do not

constitute the type of ‘unusual or unique circumstances’

justifying Rule 60(b) relief’. (Appendix 7a)

Contrary to the holding by the Fifth Circuit, the egregious

facts as outlined above warranted Rule 60(b) relief.

Courts have permitted relief where the order of dismissal

results from such circumstances as an inability to consult

with counsel [Associates Discount Corp. v. Goldman, 524

F.2d 1051 (3" Cir. 1975)], a misunderstanding regarding the

duty to appear [Ellingsworth v. Chrysler, 665 F.2d 180

(7" Cir. 1981), and an attorney’s failure to meet a deadline

[Blois v. Friday, 612 F.2d 939 (5 Cir. 1980)]. The Petitioner

has shown that the errors made did not result from her

culpable conduct [Weiss v. St. Paul Fire and Marine Ins. Co.,

283 F.3d 790, 794 (6" Cir. 2002), cert. denied, 537 U.S. 885

(2002)]. The Seventh Circuit in Robb v. Norfolk & Western

Ry. Co., 122 F.3d 354 (1997) discontinued its “hard and fast”

rule barring trial judges, in their discretion, finding that an

attorneys negligence in missing a deadline constitutes

“excusable neglect”.

Additionally, relief should have been granted “in the

interest of justice” under Rule 60(b) if the relief would

j

not affect the substantial rights of the parties which in

common legal parlance makes reference to “extraordinary

circumstances’. To show these circumstances, Petitioner had

shown to the district court the actual injury perpetrated upon

her by the gross negligence and misconduct of her attorney

and that there were circumstances beyond her control. Both

the district court and the Fifth Circuit acknowledged that

Petitioner had been the subject of the gross negligence of

her attorney. Courts have held that under this category of

Rule 60(b) relief is appropriate where a client seeking relief

from a default judgment demonstrated gross negligence on

the part of counsel. Liljeberg v. Health Serv. Acquisition

* Corp, 486 U.S. 847 (1988). Liljeberg arose out of the Fifth

Circuit, 796 F.2d 796 (1986).

The district court erred in denying Petitioner’s Rule 60(b)

motion in that it was predicated on the grossly negligent

conduct of Kelly. Such a denial flies in the face of case law

of Fifth Circuit granting Rule 60(b) relief to parties whose

counsel has been negligent in their representation of their

clients.

Additionally, the Gould factors’, which district courts

are instructed to take into account when considering a motion

under Rule 60(b), supported relief for Petitioner in that her

Rule 60(b) motion was not a substitute for appeal; her Rule

60(b) motion was made within a “reasonable time”; she did

not have an opportunity to present her side of the controversy,

she made every effort to monitor her case against Rice

University; no great delay would have occurred had the

district court granted her Rule 60(b) motion; and any

malpractice action by her against Kelly would be inadequate.

2. United States v. Gould, 301 F.2d 353, 355-56 (S" Cir. 1962).

8

Finally, when the district court denied her Rule 60(b)

motion, it failed to take into account Fifth Circuit law holding

that the dismissal of a party’s case is a severe remedy that a

district court may only resort to in drastic circumstances.

In the case at bar, the record fails to indicate such drastic

circumstances which warranted the deniai of the Rule 60(b)

motion.

B. The Balancing Act

Seeking relief from the district court’s dismissal of her

action against Rice University, Petitioner filed her motion

under Rule 60(b) of the Federal Rules of Civil Procedure,

which provides in pertinent part:

On motion and upon such terms as are just, the

court may relieve a party or a party’s legal

representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; .. .

or (6) any other reason justifying relief from the

operation of judgment. Fed. R. Civ. P. 60(b).

By its own design, Rule 60(b) seeks to balance two

inclinations: The desire to preserve the finality of judgments

and the ‘incessant command of the court’s conscience that

justice be done in light of all the facts.’” Seven Elves, Inc. v.

Eskenazi, 635 F.2d 396, 401 (5 Cir. 1981) (quoting Bankers

Mortgage Co. v. United States, 423 F.2d 73, 77 (Sth Cir.

1970), cert. denied, 399 U.S. 927 (1970)). Indeed, Rule 60(b)

has been viewed as being ‘“a grand reservoir of equitable

power to do justice in a particular case.’” Seven Elves, 635

F.2d at 402 (quoting Menier v. United States, 405 F.2d 245,

248 (5" Cir. 1968)).

9

Perhaps more importantly, the Fifth Circuit has granted

relief to movants whose cases were dismissed for reasons

similar to those at bar.

In Roberts v. Rehoboth Pharmacy, Inc., 574 F.2d 846

(5 Cir. 1978), the court granted Rule 60(b) relief to the

plaintiff in a medical malpractice case whose new attorney

failed to file a timely appearance. Likewise, in Seven Elves

v. Eskenazi, 635 F.2d 396 (5" Cir. 1981), the court granted

Rule 60(b) relief to defendants whose attorney failed to

appear for trial. The rationale behind granting such relief

lies in the belief that a plaintiff should not be unreasonably

punished for the malpractice and/or gross misconduct of her

attorney.

In the case at bar, in its order denying Petitioner’s motion

to reconsider and reinstate her case against Rice University,

the district court noted that Petitioner missed discovery

deadlines and failed to appear for a conference. (Appendix

lla). It is clear that these instances of neglect on Kelly’s

part caused the court to dismiss Petitioner’s case against Rice

University. Indeed, the only reason the case was dismissed

was because of Kelly’s conduct, of which Petitioner was

unaware. When she became aware of the misconduct, she

immediately took steps to remedy the failures of her former

counsel.

Accordingly, district court abused his discretion in

denying Rule 60(b) relief.

C. The Gould Factors

In United States v. Gould, 301 F.2d 353, 355-56 (5* Cir.

1962), the Fifth Circuit outlined eight (8) factors that district

10

courts should take into account when considering a motion

under Rule 60(b). The factors are:

(1) That final judgments should not be lightly

disturbed; (2) that the Rule 60(b) motion is not to

be used as a substitute for appeal; (3) that the rule

should be liberally construed in order to achieve

substantial justice; (4) whether the motion was

made within a reasonable time; (5) whether if the

judgment was a default or a dismissal in which

there was no consideration of the merits, the

interest in deciding cases on the merits outweighs,

in the particular case, the interest in the finality

of judgments, and there is merit in the movant’s

claim or defense; (6) whether if the judgment was

rendered after a trial on the merits the movant had

a fair opportunity to present his claim or

defense; (7) whether there are intervening equities

that would make it inequitable to grant relief;

and (8) any other factors relevant to the justice of

the judgment under attack.

Application of the Gould factors supported relief for

Petitioner’s Rule 60(b) motion and reinstatement of her case.

1. Petitioner’s Rule 60(b) motion was not a substitute for

appeal.

Petitioner did not seek to use her Rule 60(b) motion as a

substitute for appeal, as she was clearly within the applicable

time limit to appeal the district court’s denial of her Second

Motion to Reconsider. Instead, she brought her Rule 60(b)

NATO ean ts te dete ~. 2 yu

Asa owe creat leg Rpete er se Bar S.

1]

motion for the purpose of seeking equitable relief from the

dismissal of her case.

2. Petitioner’s Rule 60(b) motion was made within a

“reasonable time.”

Petitioner made her Rule 60(b) motion within a

“reasonable time” as that term is used in Rule 60(b). Indeed,

despite her repeated requests that Kelly keep her informed

of her case against Rice University, it was only when

Petitioner took it upon herself to review her file at the federal

courthouse on December 30, 2002 — a mere nine days before

she filed her Rule 60(b) motion-that she first learned that

her First Motion to Reconsider had been denied; that Kelly

had filed a Second Motion to Reconsider; and that the Second

Motion to Reconsider had also been denied. Accordingly,

Petitioner made her Rule 60(b) motion within a reasonable

time.

3. Petitioner has not had an opportunity to present her

side of the controversy.

Petitioner’s case was dismissed without a consideration

of the merits. She did not have an opportunity to present her

side of the controversy as a direct result of her attorney’s

gross negligence and misconduct. The Fifth Circuit has held

that truncated proceedings of this type will be construed in a

liberal manner in favor of holding a trial on the full merits of

the case. Seven Elves, 635 F.2d at 403. Accordingly, the

equities in this case strongly favored relief for Petitioner

under Rule 60(b).

12

4. Petitioner made every effort to monitor her case against

Rice University.

The record reveals no complicity on the part of Petitioner

in the inaction misconduct and gross negligence of Kelly,

which occasioned the dismissal of her case. In fact, she made

every attempt to be involved in her case against Rice

University. Throughout Kelly’s representation of Petitioner,

she made numerous attempts to keep herself informed of the

progress of her case against Rice University. Petitioner made

numerous telephone calls and visits to Kelly’s office, and

sent Kelly numerous faxes, e-mails, and letters. Between

November 7 and 13, 2002, when Kelly refused Petitioner’s

telephone calls and her requests to meet, Petitioner even went

so far as to “stake out” Kelly’s office in Dallas, Texas until

she was able to catch Kelly for a conversation. It was at this

time that she insisted that Kelly file a motion to reconsider.

Further, on November 14, 2002, she personally drove from

Kelly’s office in Dallas, Texas, to the federal courthouse in

Houston, Texas, to file with the court her First Motion to

Reconsider. Based upon these actions, it is clear that she

diligently monitored and pursued her case against Rice

University, and that she was not complicit in Kelly’s inaction,

dilatory conduct and gross negligence.

5. No great delay would have occurred had the district

court granted Petitioner’s Rule 60(b) motion;

malpractice action against Kelly would be inadequate

and fruitless.

Other equities also favored relief for Petitioner under

her Rule 60(b) motion. To begin with, there were no

intervening rights that would have been prejudiced by the

granting of relief, and no great delay was likely to occur

13

should the district court have granted her Rule 60(b) motion.

Additionally, and perhaps more importantly, any possible

malpractice remedy that she has against Kelly would be

inadequate to restore her to her prejudgment position, as

Kelly does not have an insurance’ carrier, and it is believed

that Kelly does not own assets sufficient to compensate her

in any malpractice action. Furthermore, she retained a law

firm to pursue a state bar grievance against Kelly.

Petitioner had retained new counsel in the case at bar.

Based upon her meetings with the her new counsel, she was

confident that her new attorneys would prosecute her case

as to the best of their abilities, and that they would adhere to

all court imposed deadlines and orders.

6. The district court’s denial of the Rule 60(b) motion is

contrary to case law from the Fifth Circuit.

When the district court denied Petitioner’s Rule 60(b)

motion, it failed to take into account case law from the

Fifth Circuit that held that the dismissal of a party’s case is a

severe remedy warranted only when drastic circumstances

exist. Indeed, it is well established that dismissal with

prejudice of an action is a severe remedy to which a court

may resort only in drastic circumstances. Silas v. Sears,

Roebuck & Co., 586 F.2d 382, 385 (5" Cir. 1978).

Absent such drastic circumstances, the trial court’s

discretion is restricted to the application of lesser sanctions

tailored to expedite proceedings and to achieve compliance

with court orders. Dismissal is generally improper, and lesser

sanctions are preferred, where neglect is clearly attributable

to an attorney, rather than to an attorney’s innocent client.

14

In the case at bar, the record failed to indicate drastic

circumstances that are required to support an order of

dismissal with prejudice rather than the imposition of lesser

sanctions. See Flaks a v. Little River Marine Constr. Co.,

389 F.2d 885 (5"Cir. 1968) (dismissal inappropriate where

delay was not so long as to indicate a desire not to prosecute,

claim was neither vexatious nor fictitious, and plaintiff was

not responsible for counsel’s dilatory conduct).’

Additionally, the delay in Petitioner’s case was not of

such a length as to indicate that she did not desire to prosecute

her claims against Rice University. Nor in these

circumstances was dismissal necessary, as a first and final

resort, to permit the district court to achieve its obligation to

administer justice expeditiously. Absent such a showing, the

district court should have imposed lesser sanctions, if any,

especially where Petitioner was blameless for Kelly’s actions.

It is clear that the district court did not take the foregoing

into account when it denied Petitioner’s Rule 60(b) motion.

3. See also Blois v. Friday, 612 F.2d 938 (5" Cir. 1980);

Hassenflu v. Pyke, 491 F.2d 1094 (5" Cir. 1974).

15

—

CONCLUSION

The Fifth Circuit failed to follow its prior holdings

regarding the abuse of discretion by the trial court in denying

relief pursuant to a Rule 60(b) motion. Thus, for the foregoing

reasons, certiorari should be granted.

Respectfully submitted,

RONALD H. TONKIN

Attorney for Petitioner

2777 Allen Parkway, Suite 1080

Houston, TX 77019

(713) 942-9111

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED NOVEMBER 12, 2003

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Summary Calendar

No. 03-20046

JUNE JAMES,

Plaintiff-Appellant,

versus

RICE UNIVERSITY; KRISTI SUTTERMAN;

and KYLE CAVANAUGH,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas,

Houston Division

4:02-CV-1472

Before JONES, BENAVIDES, and CLEMENT, Circuit

Judges.

PER CURIAM:*

Plaintiff June James appeals the district court’s dismissal

of her claims of race (African-American) and national origin

* 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.

2a

Appendix A

(Guyanese) discrimination and the district court’s denial of

a number of post-judgment motions made by James to-

reinstate her action. Some explanation of the background of

the case and the procedural history is necessary to understand

which motions are properly before this court and whether

any relief is available to James.

I. Background

On April 23, 2002, June James filed suit against Rice

University and two of its employees, Kristi Sutterman and

Kyle Cavanaugh, alleging that the defendants discriminated

against her based on her race and national origin in violation

of the Civil Rights Act of 1964. That same day, Judge Hughes

filed an Order for Conference which, inter alia, scheduled

an initial pretrial conference for August 12, 2002, and ordered

the parties to file a joint case management plan five days

prior to the conference. In addition, the Order required

counsel to have “interviewed their clients and mastered the

documents” prior to the conference and indicated that

“[f]ailure to comply with this order may result in sanctions,

including dismissal, cost assessment and prolonged tirades

by the court.” On August 5, the parties filed a joint discovery/

case management plan which provided specific dates by

which the parties would make their initial disclosures, dates

for the exchange of interrogatories and requests for

production, and a process for scheduling depositions.

3a

Appendix A

From that point forward, James, through her then-

counsel, Rosalind A. Kelly, repeatedly failed to comply with

the dates set out in the joint plan, failed to provide the

required documents, and on at least one occasion, failed to

appear for a scheduled conference. As a result, on October

15, Rice University moved to dismiss James’s claim for want

of prosecution. On November 1, James’s attorney responded

by describing a series of events in her personal life’ that had

hampered her representation of James and arguing that her

personal failures should not result in a dismissal of James’s

allegedly meritorious complaint. In support of the merit of

James’s claims, Ms. Kelly provided a list of incidents that

ostensibly indicated a pattern of discriminatory behavior on

the part of Rice University and its employees.

On November 4, Judge Hughes held a hearing on Rice

University’s motion for sanctions. After extensive discussion

of the merit, or lack thereof, of James’s claim and whether

James’s case should be affected by her counsel’s self-admitted

errors, Judge Hughes announced that the case would be

dismissed because James, through her attorney, had failed to

“meet her responsibilities as the plaintiff.” The next day, a

one-line order was entered dismissing James’s claim with

prejudice.

On November 14, within ten days of the entry of the

order dismissing the case, Ms. Kelly filed a motion styled

“Motion to Reconsider Dismissal of Action and Motion to

Reinstate Case to Court’s Active Docket.” This motion argued

2. These events included counsel’s mother being bedridden in

Tucson, Arizona with severe health problems and the demands of

raising three toddlers.

4a

Appendix A

the substantive merit of James’s claim and requested

reinstatement of the action. On November 18, Judge Hughes

entered an order denying the motion on the ground that James

had regularly missed court-ordered deadlines in the case and

had not addressed these deficiencies in the motion to

reconsider. On December 5, a second motion to reconsider

was filed by Ms. Kelly. This motion attempted to explain the

reasons for Ms. Kelly’s repeated failure to meet the deadlines

set by the district court. On December 10, the district court

entered another one-line order denying James’s second

motion to reconsider. On December 26, Ms. Kelly filed a

notice of appeal discussing the two motions to reconsider

and indicating James’s intent to appeal “the Court’s order

dismissing the action.”

While these proceedings took place before the district

court, James retained substitute counsel to pursue a

malpractice claim against Ms. Kelly and take over the

prosecution of her now-imperiled discrimination claim.

On January 8, 2003, James’s new counsel, Martin Shellist,

filed a motion styled “Plaintiff June James’s Motion for

Relief from Judgment and Motion to Reinstate.” This third

motion argued that the failures of James’s counsel should

not be held against James and that the action should be

reinstated. On January 13, the district court entered an order

indicating that it did not believe it had jurisdiction to consider

the latest motion filed by James because the filing of a notice

of appeal divested it of jurisdiction. On February 7, after

being denied an indicative ruling from the district court,

James amended her original notice of appeal to include the

January 13 order denying the latest motion. This court then

5a

Appendix A

remanded the matter to the district court for a ruling on the

merits of the Rule 60(b) motion, noting that a district court

has jurisdiction to consider a Rule 60(b) motion while a

notice of appeal is pending and may deny the motion or, with

the leave of this court, grant the motion. Pursuant to this

court’s remand, the district court considered the motion and

denied relief indicating that James was responsible for the

errors and omissions of her lawyer.

II. Discussion

We must first consider which of the rulings made below

are properly before this court and then proceed to evaluate

the merits of the properly raised claims.

A. Original Dismissal Order

The original order dismissing the case was entered on

November 5, 2002. Because the first motion for

reconsideration was filed on November 14, within ten days

of the entry of the dismissal order, and because it argues the

merits of James’s claim, it is appropriate to consider the

motion as a Rule 59(e) motion to alter or amend the judgment.

See, e.g., Days v. Johnson, 322 F.3d 863, 865 n.3 (5th Cir.

2003). A Rule 59(e) motion tolls the filing period for a notice

of appeal while the motion is pending. See Fep. R. App. P.

4(a)(4)(A)(iv). The motion was denied by the district court

on November 18 and thus the clock began running on J ames’s

ability to appeal the dismissal order. Because no notice of

appeal was filed until December 26, the thirty-day period

6a

Appendix A

for filing an appeal of the dismissal expired. See Fep. R.

App. P. 4(a)(1)(A). As a result, this court lacks jurisdiction.’

Id.

B. First Motion for Reconsideration

For the same reason, because James did not file a notice

of appeal from the order denying her original motion under

Rule 59(e) within the requisite thirty-day period, we lack

jurisdiction to review the district court’s decision to deny

the first motion for reconsideration. /d.

C. Second Motion for Reconsideration

The appeal of the court’s denial of the second motion to

reconsider is within our appellate jurisdiction. Because that

motion was filed more than ten days after the order dismissing

James’s action, it is properly viewed as a Rule 60(b) motion

for relief from judgment. The decision to grant or deny 60(b)

relief is within the sound discretion of the district court and

will be reversed only for an abuse of discretion. See Provident

Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 997 (5th Cir.

2002). Under Rule 60(b)(1), a court may relieve a party from

a final judgment or order for “mistake, inadvertence, surprise

3. James’s filing of two additional motions more ten days after

the entry of the dismissal order are properly considered Rule 60(b)

motions for relief from final judgment. See, e.g., McKethan v. Texas

Farm Bureau, 996 F.2d 734, 743 n.25 (Sth Cir. 1993). As such, they

do not “affect the finality of a judgment or suspend its operation.”

Fed. R. Civ. P. 60(b). Thus, these motions do not toll the filing period

for a notice of appeal except as provided for in Fed. R. App. P.

4(a)(4)(A)(vi).

Ta

Appendix A

or excusable neglect.” See Fed. R. Civ. P. 60(b)(1). The

extraordinary relief afforded by Rule 60(b) requires that the

moving party make a “showing of unusual or unique

circumstances justifying such relief.” Pryor v. U.S. Postal

Serv., 769 F.2d 281, 286 (5th Cir. 1985).

James’s argument that she should be excused from her

complete lack of compliance with the district court’s pretrial

orders as a result of her counsel’s personal circumstances is

unavailing. This court has often held that “the mistakes of

counsel, who is the legal agent of the client, are chargeable

to the client . . . no matter how ‘unfair’ this on occasion may

seem.” Jd. at 288 (citation omitted). As we have noted in the

past, “[w]ere this Court to make an exception to finality of

judgment each time a hardship was visited upon the

unfortunate client of a negligent or inadvertent attorney, even

though the result be disproportionate to the deficiency...

[the] meaningful finality of judgment[s] would largely

disappear.” Jd. at 288-89. Thus, no matter how much

sympathy we may have for Ms. Kelly’s personal situation or

the prejudice her neglect has inflicted on her client,

Ms. Kelly’s actions do not constitute the type of “unusual or

unique circumstances” justifying Rule 60(b) relief. See, e.g.,

Link v. Wabash R.R. Co., 370 U.S. 626, 633-36 (1962)

(denying Rule 60(b) relief based on a claim of attorney

incompetence); Crutcher v. Aetna Life Ins. Co., 746 F.2d

1076, 1082-84 (Sth Cir. 1984) (same).

8a

Appendix A

D. Third Motion for Reconsideration

The principal difference between James’s second and

third motions for reconsideration is that the latter was filed

by her second, and clearly competent, attorney. Preliminarily,

it is important to note that a Rule 60(b) motion cannot be

used as an alternate avenue to appeal a final order of a district

court. See, e.g., Latham v. Wells F, argo Bank, N.A., 987 F.2d

1199, 1203-04 (5th Cir. 1993). Here, because a notice of

appeal contesting the denial of the second motion had already

been timely filed, the successive 60(b) motion at issue here

does not represent the typical scenario where a party is

attempting to extend the time period for filing an appeal.

However, where the grounds raised are essentially the same

as those in the previous motion, to consider the merits of the

successive motion would essentially allow reargument. Even

assuming, arguendo, that the third motion is properly before

us, the underlying argument is basically the same—James

should not be punished for her counsel’s complete and total

incompetence. For the reasons discussed above, the grounds

cited in the third motion do not merit Rule 60(b) relief.

The judgment of the district court is AFFIRMED.

9a

APPENDIX B — ORDER FOLLOWING REMAND OF

THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS

DATED APRIL 23, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

Civit Action H-02-1472

JUNE JAMES,

Plaintiff,

versus

Rice UNIVERSITY,

| Defendant.

ORDER FOLLOWING REMAND

A lawsuit is the responsibility of the parties to it. They

must comply with discovery requests, answer motions, appear

for conferences, and produce witnesses to testify at trial or

deposition. If a party chooses to delegate that responsibility

to an agent who is not up to the task, she cannot complain to

the court that her designated representative—the agent she

has chosen to represent her in her legal affairs—is at fault.

In court as elsewhere, the agent’s misdeeds in the scope of

the agency bind the principal.

It is James’s case and James’s responsibility to monitor—

and, if necessary, replace—her attorney. James claims her

10a

Appendix B

attorney did a poor job, but complaints about lawyer behavior

are matters for the state bar or a malpractice suit. What is

relevant to this dispute is that James—whether through her

own error or her lawyer’s—repeatedly disobeyed the court’s

orders. Her dereliction wasted the court’s time, opposing

counsel’s time, and the defendant’s time and money,

warranting a sanction of dismissal.

James’s third motion to reconsider and reinstate is denied

(26).

Signed April 23, 2003, at Houston, Texas.

s/ Lynn N. Hughes

Lynn N. Hughes

United States District Judge

lla

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS DATED NOVEMBER 15, 2002

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

Civit Action H-02-1472

JUNE JAMES,

Plaintiff,

versus

Rice UNIVERSITY,

Defendant.

ORDER

James repeatedly missed discovery deadlines. She did

not communicate with Rice’s counsel. She did not appear

for a conference. In her motion to reconsider the dismissal

of her case, she does not address these deficiencies; she

merely attaches a sheaf of documents and asks for an

opportunity to develop the factual basis of her claims.

Belatedly presenting evidence—that she was ordered to

furnish to Rice months ago—does not show that James has

gained respect for the court’s deadlines, or opposing counsel’s

time.

James’s motion to reconsider and reinstate is denied (20).

12a

Appendix C

Signed November 15, 2002, at Houston, Texas.

s/ Lynn N. Hughes

Lynn N. Hughes

United States District Judge