Buckmire v. Memorial Hermann Healthcare System Inc. , 456 F. App'x 431 ( 2012 )

Case: 11-20458 Document: 00511712222 Page: 1 Date Filed: 01/03/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2012
No. 11-20458 Lyle W. Cayce
Summary Calendar Clerk
NANTWI BUCKMIRE,
Plaintiff – Appellant
v.
MEMORIAL HERMANN HEALTHCARE SYSTEM INCORPORATED,
Defendant – Appellee
Appeal from the United States District Court
for the Southern District of Texas
U.S.D.C. No. 4:09-CV-2961-H
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Following his discharge, Nantwi Buckmire (“Buckmire”) sued his
employer, Memorial Hermann Healthcare System Incorporated (“Memorial
Hermann”), claiming racial discrimination and retaliation for filing a charge of
discrimination with the Equal Employment Opportunity Commission. After
discovery closed, Memorial Hermann filed a motion for summary judgment. The
district court found (and Buckmire does not dispute) that his attorney received
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20458 Document: 00511712222 Page: 2 Date Filed: 01/03/2012
No. 11-20458
the motion and notice of its filing. However, she contends that she forgot to
“calendar” the deadline for a response. After that deadline passed with no
response, the district court reviewed Memorial Hermann’s motion and granted
it. Thereafter, Buckmire filed a Federal Rule of Civil Procedure 60(b)(1) motion,
contending that his attorney’s calendaring error constituted “excusable neglect.”
The district court denied Buckmire’s motion, and Buckmire appeals only
that decision (not the underlying judgment). See Halicki v. La. Casino Cruises,
Inc., 151 F.3d 465, 470 (5th Cir. 1998) (an appeal of a Rule 60(b) order “does not
bring up the underlying judgment for review”) (internal quotation marks and
citations omitted). Review is for abuse of discretion. See id.; Edwards v. City of
Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc). Buckmire has failed to show
that the district court abused its discretion in denying his Rule 60(b) motion.
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356-57 (5th Cir. 1993)
(“Denial of a Rule 60(b) motion to set aside a dismissal under clause (1) is not an
abuse of discretion when the proffered justification for relief is the ‘inadvertent
mistake’ of counsel. Gross carelessness, ignorance of the rules, or ignorance of
the law are insufficient bases for 60(b)(1) relief.”) (footnotes omitted); see also
Bynum v. Ussin, 410 F. App’x 808, 811 (5th Cir. 2011) (unpublished) (finding no
abuse of discretion in district court’s denial of Rule 60(b)(1) relief to an attorney
who “admit[ted] that he overlooked his responsibilities when he failed to timely
file a response”).1
AFFIRMED.
1
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397-98 (1993) does
not compel a different result. There, the Court made clear that mistakes of counsel can and
should be attributed to the client in a civil case. The key distinguishing feature of that case
was that the bankruptcy proof of claim bar date was not known to counsel and was contained
in a poorly labeled and “unusual form of notice,” thus making counsel’s neglect “excusable.”
Id.2