James v. Rice University, et al

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 12, 2003
Charles R. Fulbruge III
Clerk
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 (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

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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.
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,

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2 These events included counsel’s mother being bedridden in
Tucson, Arizona with severe health problems and the demands of
raising three toddlers.
3
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 life2 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 the substantive merit

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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

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her original notice of appeal to include the January 13 order
denying the latest motion. This court then 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
FED. 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

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3James’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 (5th 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).
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James’s ability to appeal the dismissal order. Because no notice
of appeal was filed until December 26, the thirty-day period for
filing an appeal of the dismissal expired. See FED. R. APP.
4(a)(1)(A). As a result, this court lacks jurisdiction over the
district court’s original order dismissing the case.3 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. Id.
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 &

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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 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.”
Id. 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.” Id. 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

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60(b) relief based on a claim of attorney incompetence); Crutcher
v. Aetna Life Ins. Co., 746 F.2d 1076, 1082-84 (5th Cir. 1984)
(same).
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 Fargo 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.

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