McKenzie v. US Dept Vet Affairs , 83 F. App'x 642 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
December 16, 2003
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________
No. 03-30653
Summary Calendar
_______________
JANIE MCKENZIE,
Plaintiff-Appellant,
VERSUS
ANTHONY PRINCIPI,
SECRETARY, DEPARTMENT OF VETERANS’ AFFAIRS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 02-CV-1601
_________________________
Before SMITH, DEMOSS, and STEWART,
Circuit Judges. Plaintiff Janie McKenzie appeals the dis-
missal of her claim after she failed timely to
PER CURIAM:* respond to a dispositive motion by defendant.
* *
Pursuant to 5TH CIR. R. 47.5, the court has de- (...continued)
termined that this opinion should not be published and is not precedent except under the limited cir-
(continued...) cumstances set forth in 5TH CIR. R. 47.5.4.
Finding no error, we affirm. of the VA, dismissing with prejudice on June
9.
I.
McKenzie sued on May 24, 2002, charging II.
that the Department of Veterans’ Affairs (“the McKenzie argues that the court abused its
VA”) had unlawfully engaged in racial discrim- discretion in refusing to grant her motion for
ination against her, in violation of title VII. relief, because counsel’s failure to reply timely
During the pre-trial period, the court set June was “excusable neglect.” Appellate review of
9, 2003, as a cutoff date for pre-trial motions a denial of a rule 60(b) motion is narrower in
to be heard. In scheduling pre-trial deadlines, scope than is review of the order of dismissal.
the court was mindful that McKenzie’s counsel To merit reversal, a denial must be so unwar-
had duties as a legislator during the spring and ranted as to constitute an abuse of discretion.
summer. In its discretion, the court charitably New Hampshire Ins. Co. v. Martech USA,
adjusted the pre-trial schedule to reduce con- Inc., 993 F.2d 1195, 1200 (5th Cir. 1993) (cit-
flict with counsel’s other duties. ing Brown v. Petrolite Corp., 965 F.2d 38 (5th
On May 12, the VA filed a motion to dis- Cir. 1992)); Seven Elves, Inc. v. Eskenazi, 635
miss or alternatively for summary judgment. F.2d 396, 402 (5th Cir. Unit A Jan. 1981)
The motion package was duly delivered to
McKenzie’s lawyer on May 13, informing him Any post-deadline extension to reply to a
that the motion would be heard on May 28. dispositive motion must be “upon motion
McKenzie failed to respond until May 22, too made” and is permissible only where the failure
late to be heard under the applicable rules. 1 to meet deadline ‘was the result of “excusable
The court granted the motion to dismiss as neglect.” Lujan v. Nat’l Wildlife Fed’n, 497
unopposed. U.S. 871, 896 (1990). In determining whether
a late filing was excusable neglect, the court
On June 5, 2003, pursuant to FED. R. CIV. should take into account the possible prejudice
P. 60(b), McKenzie filed a “Motion for Relief to the later filer, the length of delay and the
from Judgment or Order and Reinstatement of impact on judicial proceedings, the reason for
Action” (“motion for relief”). As the basis for delay, including especially if it was within the
the request for leniency, McKenzie’s attorney reasonable control of the movant, and whether
pointed to his duties as a state representative, the movant acted in good faith. Pioneer Inv.
where he was then serving in a regular session Serv. Co. v. Brunswick Assocs. Ltd. P’ship,
convened on March 31 and set to extend 507 U.S. 380, 395 (1993).
through June 23. He argued that his work had
kept him out of his office and had caused the Moreover, “the greater the negligence in-
late response. The court refused to grant Mc- volved, or the more willful the conduct, the
Kenzie’s motion and entered judgment in favor less ‘excusable’ it is.” Crutcher v. Aetna Life
Ins. Co., 746 F.2d 1076, 1083 (5th Cir. 1984).
Greater leniency should be exercised in finding
1
Under Local Rule 7.5E, “Each party opposing excusable neglect where failure to grant a
a motion shall file . . . a memorandum of the motion for relief would result in a default
reasons advanced in opposition . . . no later than judgment. In Blois v. Friday, 612 F.2d 938,
the eighth calender day prior to the noticed hearing 940 (5th Cir. 1980) (per curiam), we stated:
date.”
2
[The] Rule 60(b) Motion must be equita- counsel were aware of the requirements of the
bly and liberally applied to achieve substan- pre-trial period and of counsel’s busy sched-
tial justice. Doubt should be resolved in the ule.
favor of a judicial decision on the merits of
a case, and a technical error or a slight Accordingly, it was no abuse of discretion
mistake by plaintiff’s attorney should not to deny the motion for relief.
deprive plaintiff of an opportunity to pres-
ent the true merits of his claims. The coun- AFFIRMED.
tervailing factors are the defendants’ and
society’s interests in the finality of judg-
ments and the avoidance of prejudice. The
plaintiff should not be punished for his
attorney’s mistake absent a clear record of
delay, willful contempt or contumacious
conduct.
(Citations omitted.) See also Hassenflu v.
Pyke, 491 F.2d 1094, 1095 (5th Cir. 1974)
(per curiam).
Nonetheless, McKenzie has failed to show
that her neglect was “excusable.” This court
has regularly found “excusable neglect” in
responding to a dispositive motion only in cir-
cumstances where, through inadvertence, the
party or its attorney did not receive notice. See
e.g., Halicki v. La. Casino Cruises, 151 F.3d
465, 470 (5th Cir. 1998); Seven Elves, 635
F.2d at 399; Blois, 612 F.2d at 940. Mean-
while, we have “expressly held that conflicts in
scheduling do not provide sufficient cause to
warrant relief under Rule 60(b)(1).” Pryor v.
United States Postal Serv., 769 F.2d 281, 287
(5th Cir. 1985).
McKenzie offers no reason to excuse her
late filing other than counsel’s schedule as a
legislator. It is no more than a conflict in
scheduling, and one that the district court gen-
erously accommodated during the pre-trial
period. There were no surprises or unusual
intervening circumstances that caused the
lateness of McKenzie’s reply––she and her
3