McKenzie v. US Dept Vet Affairs, et al

United States Court of Appeals
Fifth Circuit
F I L E D
December 16, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
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.
PER CURIAM:*
Plaintiff Janie McKenzie appeals the dis-
missal of her claim after she failed timely to
respond to a dispositive motion by defendant.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
(continued...)
*(...continued)
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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2
Finding no error, we affirm.
I.
McKenzie sued on May 24, 2002, charging
that the Department of Veterans’ Affairs (“the
VA”) had unlawfully engaged in racial discrim-
ination against her, in violation of title VII.
During the pre-trial period, the court set June
9, 2003, as a cutoff date for pre-trial motions
to be heard. In scheduling pre-trial deadlines,
the court was mindful that McKenzie’s counsel
had duties as a legislator during the spring and
summer. In its discretion, the court charitably
adjusted the pre-trial schedule to reduce con-
flict with counsel’s other duties.
On May 12, the VA filed a motion to dis-
miss or alternatively for summary judgment.
The motion package was duly delivered to
McKenzie’s lawyer on May 13, informing him
that the motion would be heard on May 28.
McKenzie failed to respond until May 22, too
late to be heard under the applicable rules.1
The court granted the motion to dismiss as
unopposed.
On June 5, 2003, pursuant to FED. R. CIV.
P. 60(b), McKenzie filed a “Motion for Relief
from Judgment or Order and Reinstatement of
Action” (“motion for relief”). As the basis for
the request for leniency, McKenzie’s attorney
pointed to his duties as a state representative,
where he was then serving in a regular session
convened on March 31 and set to extend
through June 23. He argued that his work had
kept him out of his office and had caused the
late response. The court refused to grant Mc-
Kenzie’s motion and entered judgment in favor
of the VA, dismissing with prejudice on June
9.
II.
McKenzie argues that the court abused its
discretion in refusing to grant her motion for
relief, because counsel’s failure to reply timely
was “excusable neglect.” Appellate review of
a denial of a rule 60(b) motion is narrower in
scope than is review of the order of dismissal.
To merit reversal, a denial must be so unwar-
ranted as to constitute an abuse of discretion.
New Hampshire Ins. Co. v. Martech USA,
Inc., 993 F.2d 1195, 1200 (5th Cir. 1993) (cit-
ing Brown v. Petrolite Corp., 965 F.2d 38 (5th
Cir. 1992)); Seven Elves, Inc. v. Eskenazi, 635
F.2d 396, 402 (5th Cir. Unit A Jan. 1981)
Any post-deadline extension to reply to a
dispositive motion must be “upon motion
made” and is permissible only where the failure
to meet deadline ‘was the result of “excusable
neglect.” Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 896 (1990). In determining whether
a late filing was excusable neglect, the court
should take into account the possible prejudice
to the later filer, the length of delay and the
impact on judicial proceedings, the reason for
delay, including especially if it was within the
reasonable control of the movant, and whether
the movant acted in good faith. Pioneer Inv.
Serv. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 395 (1993).
Moreover, “the greater the negligence in-
volved, or the more willful the conduct, the
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
excusable neglect where failure to grant a
motion for relief would result in a default
judgment. In Blois v. Friday, 612 F.2d 938,
940 (5th Cir. 1980) (per curiam), we stated:
1 Under Local Rule 7.5E, “Each party opposing
a motion shall file . . . a memorandum of the
reasons advanced in opposition . . . no later than
the eighth calender day prior to the noticed hearing
date.”

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3
[The] Rule 60(b) Motion must be equita-
bly and liberally applied to achieve substan-
tial justice. Doubt should be resolved in the
favor of a judicial decision on the merits of
a case, and a technical error or a slight
mistake by plaintiff’s attorney should not
deprive plaintiff of an opportunity to pres-
ent the true merits of his claims. The coun-
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
counsel were aware of the requirements of the
pre-trial period and of counsel’s busy sched-
ule.
Accordingly, it was no abuse of discretion
to deny the motion for relief.
AFFIRMED.

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