Fenimore v. Wal-Mart Stores East, L.P.

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
SHAWN ORZO FENIMORE,
Plaintiff,
v.
WAL-MART STORES EAST, LP,
Defendant.
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Civil Action No. 4:25-cv-739
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Shawn Orzo Fenimore’s (“Plaintiff”) Motion for
Relief from Order and Final Judgment Pursuant to Federal Rule of Civil Procedure 60(b) (the
“Motion”) (Dkt. #25). Having considered the Motion and the relevant pleadings, the Court finds
that the Motion should be DENIED.
BACKGROUND
On August 18, 2023, Plaintiff was delivering freight to Defendant Wal-Mart Stores East,
LP (“Defendant”) (Dkt. #2). When he approached Defendant’s dock attendant, Plaintiff “tripped
due to an alleged premise defect—a deep, uneven, and damaged portion of the parking lot, causing
him to lose his balance and fall forward” (Dkt. #2 at p. 2). Plaintiff “extended his left hand to help
break his fall,” and “broke the fourth metatarsal of his left hand and strained his wrist” (Dkt. #2 at
p. 2). He alleges his injuries were “a direct result of the premise defect” (Dkt. #2 at p. 2). To link
the defect to Defendant, Plaintiff alleges that Defendant’s agents failed to inspect and maintain the
parking lot area, failed to maintain the parking lot in a reasonably safe condition, and failed to give
adequate warnings to Plaintiff (Dkt. #2). He filed suit in Texas state court on June 5, 2025
(Dkt. #2). The case was removed to this Court on the basis of diversity jurisdiction on July 9, 2025
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(Dkt. #1). On December 18, 2025, Defendant filed its Motion for Summary Judgment (Dkt. #16).
Plaintiff had twenty-one days to file a response. LOCAL RULE CV-7(e). He did not. Nor did he seek
leave to file an untimely response. The Court then exercised its discretion to enforce its Local Rule
and deemed the factual allegations in Defendant’s Motion for Summary Judgment uncontroverted
(Dkt. #23). LOCAL RULE CV-7(e). On April 29, 2026, the Court ultimately granted Defendant’s
Motion for Summary Judgment and dismissed Plaintiff’s claims with prejudice (Dkt. #23). On
April 29, 2026, the Court entered final judgment (Dkt. #24).
On July 31, 2026, staff for Plaintiff’s counsel corresponded with Defendant’s counsel to set
up a site visit at the Walmart store where Plaintiff fell (Dkt. #25-1). Defendant’s counsel then
informed Plaintiff’s counsel that the Court dismissed the lawsuit (Dkt. #25-1). On August 14,
Plaintiff filed the present Motion, requesting the Court to grant Plaintiff relief from the final
judgment entered and reopen the case (Dkt. #25). Plaintiff’s justification is that his counsel never
received notice of Defendant’s Motion for Summary Judgment and the Court’s order dismissing
the 	claims 	because 	Plaintiff’s 	counsel 	had 	the 	wrong 	email 	listed 	on 	CM/ECF
(Dkt. #25 at pp. 5–6). On August 25, 2026, Defendant filed its response (Dkt. #26). On August 26,
2026, Plaintiff filed his reply (Dkt. #27).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 60(b), a court may relieve a party from a final
judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or
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discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief. FED. R. CIV . P. 60(b)
(emphasis added). The burden of establishing at least one of the grounds for Rule 60(b) relief is on
the movant. Osborne v. Belton, 131 F.4th 262, 270 (5th Cir. 2025) (per curiam); see also Lavespere v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by
Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc). “Rule 60(b) vests in [the Court]
power ʻadequate to enable [it] to vacate judgments whenever such action is appropriate to
accomplish justice.’” Webb v. City of Huntsville, No. 4:17-CV-3829, 2020 WL 11564115, at *2 (S.D.
Tex. Aug. 10, 2020) (quotations omitted). The discretion of the Court is not unbounded, though.
Id. Factors that should inform the Court’s consideration of a Rule 60(b) motion include the
following:
(1) that final judgments should not lightly be 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 her 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.
Id. These factors are to be considered in the light of the great desirability of preserving the principle
of the finality of the judgments. Id.
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When applying Rule 60(b), the Fifth Circuit emphasizes the importance of analyzing the
diligence of a party in prosecuting his claims. Id n.2. (citing Trevino v. City of Fort Worth, 944 F.3d
567, 571 (5th Cir. 2019)). Rule 60(b)(1) allows for relief from judgment for “mistake, inadvertence,
surprise, or excusable neglect.” FED. R. CIV . P. 60(b)(1). “The Supreme Court has explained that
the determination of what sorts of neglect will be considered excusable is ʻan equitable one, taking
account of all relevant circumstances surrounding the party’s omission.’” Trevino, 944 F.3d at 571
(citation omitted). Therefore, [g]ross carelessness, ignorance of the rules, or ignorance of the law
are insufficient bases for 60(b)(1) relief. Id. (citation omitted). A district court abuses its discretion
when it “reopen[s] a case under Rule 60(b)(1) when the reason asserted as justifying relief is one
attributable solely to counsel’s carelessness with or misapprehension of the law or the applicable
rules of the court.” Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993); see also
11 Mary Kay Kane & Allan Stein, Federal Practice & Procedure § 2858 (3d ed.), Westlaw FPP § 2858
(database updated Apr. 2026).
Rule 60(b)(6) “is a catch-all provision, meant to encompass circumstances not covered by
Rule 60(b)’s other enumerated provisions. Rule 60(b)(6) motions will be granted only if
extraordinary circumstances are present.” Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002)
(citations omitted). But, relief under 60(b)(6) is mutually exclusive from relief available under
sections (1)–(5), meaning an action cannot be brought through the catch-all provision of Rule
60(b)(6) if it could have been brough through one of the Rule’s first five subsections. Smith-
Hubbard v. AMICA Mut. Ins. Co., No. 23–40331, 2024 WL 747249, at *3 (5th Cir. Feb. 23, 2024)
(citations omitted); see also Hess, 281 F.3d at 215.
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ANALYSIS
Nearly eight months after Defendant filed its Motion for Summary Judgment (Dkt. #16)
and three months after the Court granted the motion, dismissing his claims with prejudice, Plaintiff
finally obtained notice of what had occurred. While the Court is sympathetic to the mistakes that
Plaintiff’s counsel made, which ultimately led to Plaintiff’s case being dismissed, the Court finds
that the noncompliance with the Court’s scheduling order and Local Rules lead to the conclusion
that this case should remain final. In equity, the Court hopes that [parties] should not be punished
for [their] attorneys’ mistakes absent a clear record of delay, willful contempt or contumacious
conduct. Blois v. Friday, 612 F.2d 938, 940 (Former 5th Cir. 1980). However, civil litigants are
“accountable for the acts and omissions of their attorneys.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs., 507 U.S. 380, 397 (1993). Here, Plaintiff’s counsel does not know how his defunct email
address became associated with his name in the CM/ECF system and requests that the Court find
his neglect excusable (Dkt. #25 at p. 5–8). But, Plaintiff’s counsel was in the best position to ensure
that his own email was working properly and should have been monitoring the docket closely,
considering the deadlines agreed to in the Scheduling Order (Dkt. #13). Rollins v. Home Depot USA,
8 F.4th 393, 396 (5th Cir. 2021). Unfortunately, Plaintiff’s counsel’s gross negligence and ignorance
of the local rules are insufficient bases for Rule 60(b)(1) relief, and this Court would abuse its
discretion by re-opening the case. Trevino, 944 F.3d at 571.
Federal Rule of Civil Procedure 5 provides that a written motion can be served by sending
it to a registered user by filing it with the Court’s electronic filing system unless the filer learns that
it did not reach the person to be served. FED. R. CIV . P. 5(b)(2)(E). Local Rule CV-5(a)(2)(A)
provides that:
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“[t]he clerk shall register all attorneys admitted to the bar of this court . . . as Filing
Users of the Court’s Electronic Filing System. Registration as a Filing User
constitutes consent to electronic service of all documents as provided in these rules
in accordance with the Federal Rules of Civil [] Procedure . . . [a]fter registration,
attorneys are required to maintain their own account information, including changes in e-
mail address. Documents sent from the Court will be deemed delivered if sent to the
last known e-mail address given to the Court.
LOCAL R ULE CV-5(a)(2)(A) (emphasis added). Local Rule CV-5(a)(3)(A) further provides that:
“Electronic transmission of a document to the Electronic Filing System consistent
with these rules, together with the transmission of a Notice of Electronic Filing
from the Court, constitutes filing of the document for all purposes and constitutes
entry of the document n the docket kept by the clerk. Receipt by the filing party of
a Notice of Electronic Filing from the Court is proof of service of the document on all
counsel who are deemed to have consented to electronic service.
Id. CV-5(a)(3)(A).
In Rollins, the Fifth Circuit affirmed the district court’s denial of relief on facts similar to
those here. Citing Federal Rule of Civil Procedure 5(b)(2)(E) and Trevino, 944 F.3d at 571, the Fifth
Circuit stressed that the failure to file a response to a summary judgment that was later granted was
within counsel’s “reasonable control.” 8 F.4th at 396. Because Rule 5 was satisfied, “counsel was
plainly in the best position to ensure that his own email was working properly—certainly more so
than either the district court or [defendant]. Id. Like here, counsel could have checked the docket
after the Scheduling Order’s December 18, 2025, deadline for dispositive motions had already
passed (Dkt. #13). Id. (citing Trevino, 944 F.3d at 571). Instead, nearly eight months after that
deadline did Plaintiff’s counsel follow up on the status of the case. If Plaintiff’s counsel believed
that the case was ongoing, then on July 31, 2026, counsel should have already filed motions in
limine, proposed jury instructions, and joint final pretrial order with the case’s final pretrial
conference scheduled for August 6, 2026 (Dkt. #13).
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Plaintiff attempts to distinguish caselaw like Long v. James, 667 F. App’x 862, 863–64 (5th
Cir. 2016) (per curiam), where the Fifth Circuit again affirmed denial of relief when counsel
claimed he did not receive CM/ECF emails notifying him of the defendant’s motion for summary
judgment. There, the Fifth Circuit affirmed in part because counsel was put on notice that the
defendants intended to file a dispositive motion prior to the filing deadline. Id. Here, Plaintiff argues
Long is inapplicable because Defendant never put Plaintiff on notice that Defendant was going to
file its Motion for Summary Judgment (Dkt. #27 at 2–3). However, the Fifth Circuit affirmed the
district court’s ruling also because counsel had a duty of diligence and counsel had “ample
opportunity to check the district court docket in the [seventy-nine] days between the motion’s filing
and the district court’s judgment. Id. at 863 (emphasis added). Instead of seventy-nine days passing
without counsel monitoring the docket, 132 days passed here between the time Defendant filed its
Motion for Summary Judgment and the Court entered judgment. Furthermore, counsel only
learned on July 31, 2026, which would total 225 days of not monitoring the docket. In AMICA, the
Fifth Circuit affirmed denial when counsel was unable to explain why he did not check the docket
for four months. AMICA, 2024 WL 747249, at *2. Here, counsel has not explained how nearly
seven months went by without checking the docket (See Dkt. #25; Dkt. #27).
While Plaintiff argues that this chain of events amounts to excusable neglect, the Court,
unfortunately, must disagree (Dkt. #25 at pp. 4–9). As another district judge put it, “[t]he record,
however, paints a picture of gross carelessness, not excusable neglect.” Dedeaux v. Hancock Cnty,
No. 1:24-CV-14, 2026 WL 800209, at *4 (S.D. Miss. Mar. 23, 2026). On one hand, the excusable
neglect exception contemplates “single instances of ʻunforeseeable human error beyond their
reasonable control.’” Id. (quoting Coleman Hammons Constr. Co. v. Occupational Safety & Health
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Rev. Comm’n, 942 F.3d 279, 284 (5th Cir. 2019)). Gross carelessness, on the other hand, requires
repeated “failures to comply with the rules.” Id. (citing Razvi v. Dall. Forth Worth Int’l Airport, No.
21-10016, 2022 WL 4298141, at *5 (5th Cir. Sept. 16, 2022). Here, counsel committed gross
carelessness, not excusable neglect, through his repeated failures to comply with the local rules on
CM/ECF, not checking the docket, and not satisfying his duty of diligence to inquire about the
status of the case. See Trevino, 944 F.3d at 571. Therefore, Plaintiff is not entitled to relief from the
final judgment on Rule 60(b)(1) grounds.
Moreover, Plaintiff is not entitled to relief from the final judgment on Rule 60(b)(6)
grounds. Rule 60(b)(6) “is a catch-all provision, meant to encompass circumstances not covered
by Rule 60(b)’s other enumerated provisions. Rule 60(b)(6) motions will be granted only if
extraordinary circumstances are present.” Hess, 281 F.3d at 216. But, relief under 60(b)(6) is
mutually exclusive from relief available under sections (1)–(5), meaning an action cannot be
brought through the catch-all provision of Rule 60(b)(6) if it could have been brought through one
of the Rule’s first five subsections. AMICA, 2024 WL 747249, at *3; see also Hess, 281 F.3d at 215.
Here, Plaintiff request for relief falls under the enumerated provision of Rule 60(b)(1). The
chain of events that led to the final judgment is a situation covered by Rule 60(b)’s other
enumerated provisions and mutually exclusive with Rule 60(b)(6). As separate grounds for Rule
60(b)(6) relief, Plaintiff argues that associate attorney Richard Smith should have been included on
Defendant’s service list and that Defendant knew from Plaintiff’s filings and disclosures that the
correct email for service was “service@houstonmsmith.com” instead of the one on CM/ECF or
“service@houstonsmith.com” that was listed on Defendant’s notice of removal documents.
However, Defendant complied with the local rules and Rule 5 on the service of its Motion for
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Summary Judgment (Dkt. #16). See F ED. R. CIV . P. 5; LOCAL RULE CV-5(a)(2)(A); Id. CV-
5(a)(3)(A). Furthermore, Plaintiff, not Defendant, was in the best position to ensure his own email
was working properly, he was receiving CM/ECF notifications, and he was monitoring the docket
closely. Rollins, 8 F.4th at 396. Therefore, Plaintiff is not entitled to relief from the final judgment
on Rule 60(b)(6) grounds.
CONCLUSION
It is therefore ORDERED that Plaintiff Shawn Orzo Fenimore’s Motion for Relief from
Order and Final Judgment Pursuant to Federal Rule of Civil Procedure 60(b) (Dkt. #25) is hereby
DENIED.
IT IS SO ORDERED.
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