*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20014

Summary Calendar

_____________________

WILMER F. TREMBLE, JR.,

Plaintiff-Appellant,

v.

GENERAL DYNAMICS INC.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-91-CV-2106)

_________________________________________________________________

(July 25, 1995)

Before KING, JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Wilmer F. Tremble, Jr., filed a complaint alleging that his

employer, General Dynamics, Inc., had terminated his employment

based upon his race in violation of Title VII of the Civil Rights

Act of 1964. The district court dismissed Tremble's case for

want of prosecution pursuant to Rule 4(j) of the Federal Rules of

Civil Procedure, but later granted Tremble's motion for

reinstatement. General Dynamics then moved the court to
 

1 Rule 4(j) has since been amended and redesignated as Rule

4(m). The revised rule became effective on December 1, 1993. 

Former Rule 4(j) states:

(j) Summons: Time Limit for Service. If a

service of the summons and complaint is not made upon a

defendant within 120 days after the filing of the

complaint and the party on whose behalf such service

was required cannot show good cause why such service

was not made within that period, the action shall be

dismissed as to that defendant without prejudice upon

the court's own initiative with notice to such party or

upon motion. . . . .

FED. R. CIV. P. 4(j) (1992).

 

2

reconsider its order of reinstatement and also moved the court

for summary judgment. The district court granted both of these

motions simultaneously. In his brief on appeal, Tremble

addresses only the court's order reconsidering its order of

reinstatement. We affirm that order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 20, 1992, the district court dismissed Tremble's

complaint sua sponte and without prejudice due to a want of

prosecution pursuant to Rule 4(j) of the Federal Rules of Civil

Procedure.1 On October 4, 1993 -- over twenty months after the

district court's dismissal under Rule 4(j) -- Tremble filed a

motion asking the district court to reinstate his case. 

Specifically, Tremble informed the court via a sworn document

that his case had been dismissed on January 1, 1993 and averred

that his failure to effect service upon the defendant within the
 

2 Rule 60(b) states in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, etc. On motion and

upon such terms as are just, the court may relieve a

party or a party's legal representative from a final

judgment, order, or proceeding for the following

reasons: (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence which

by due diligence could not have been discovered in time

to move for a new trial under Rule 59(b); (3) fraud

(whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of

an adverse party; (4) the judgment is void; (5) the

judgment has been satisfied, released, or discharged,

or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective

application; or (6) any other reason justifying relief

from the operation of the judgment. The motion shall

be made within a reasonable time, and for reasons (1),

3

requisite 120 day period "was not intentional or the result of

conscious indifference but can be explained, in that Plaintiff's

attorney was disbarred and incarcerated." There is no evidence

in the record that General Dynamics was aware of Tremble's motion

to reinstate. On December 12, 1993, the district court granted

Tremble's motion for reinstatement, although it did not cite its

source of authority for doing so.

On June 28, 1994 -- nearly three years after Tremble had

filed his original complaint -- General Dynamics was served with

a summons notifying it of Tremble's suit. On August 19, 1994,

General Dynamics filed a motion asking the district court to

reconsider its order of reinstatement, asserting that

reinstatement was untimely under Rule 60(b)(1) of the Federal

Rules of Civil Procedure or alternatively, that Rule 60(b)(6) did

not justify relief.2 In addition, on the same day that it filed
(2), and (3), not more than one year after the

judgment, order, or proceeding was entered or taken. .

. .

FED. R. CIV. P. 61(b).

4

its motion for reconsideration, General Dynamics filed a motion

for summary judgment "subject to and without waiving its Motion

for Reconsideration . . . . " Specifically, General Dynamics

argued that it was entitled to summary judgment both on the

merits and because the applicable statute of limitations had

expired. In support of its motion for summary judgment, General

Dynamics proffered several affidavits of employees which stated

that Tremble had been fired in accordance with standard company

procedures because of repeated disciplinary and performance

problems, not because of his race. Tremble never responded to

General Dynamics' motion for summary judgment or its accompanying

affidavit evidence. 

On December 14, 1994, the district court granted both the

motion for reconsideration and the motion for summary judgment.

On January 6, 1995, Tremble filed a timely appeal to this court. 

II. ANALYSIS

The district court's simultaneous granting of General

Dynamics' motions for reconsideration and for summary judgment is

inherently inconsistent. On the one hand, the grant of the

motion for reconsideration resulted in a reinstatement of the

court's earlier order of dismissal for want of prosecution and
 

3 We note, however, that because this case involves Title

VII, which imposes a 90-day limitations period upon plaintiffs,

the practical effect of the district court's dismissal for want

of prosecution (and a fortiori its subsequent granting of General

Dynamics' motion to reconsider) was with prejudice.

 

4 If we assume the opposite-- that the district court

granted the summary judgment motion prior to the motion for

reconsideration-- Tremble fares no better because his brief does

not challenge the grant of summary judgment and therefore any

argument he may have with regard to this issue is waived on

appeal. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.) ("An

appellant abandons all issues not raised and argued in its

initial brief on appeal."), cert. denied, 115 S. Ct. 189 (1994) ;

accord Pan E. Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1124

(5th Cir. 1988). 

5

was without prejudice.3 On the other hand, the grant of the

motion for summary judgment, being an adjudication on the merits,

was with prejudice. As Tremble challenges only the district

court's grant of the motion for reconsideration, we shall proceed

to address this issue, assuming arguendo that granting the 

motion to reconsider left the district court without power to

grant a motion for summary judgment.4

A motion to reconsider, when filed more than ten days after

the rendition of a judgment, is construed as a motion for relief

from judgment pursuant to Rule 60(b) and is reviewed under an

abuse of discretion standard. Teal v. Eagle Fleet, Inc., 933

F.2d 341, 347 (5th Cir. 1991). "The district court enjoys

considerable discretion when determining whether the movant has

satisfied any of the[] Rule 60(b) standards." Id. In the case

at hand, Tremble's motion for reinstatement, having been filed

more than ten days after the initial dismissal of Tremble's suit,

is likewise construed as a Rule 60(b) motion for relief from
6

judgment. Pursuant to Rule 60(b), there are only six grounds for

relief from judgment: (1) mistake, inadvertence, surprise or

excusable neglect; (2) newly discovered evidence which by due

diligence could not have been discovered in time to move for a

new trial under Rule 59(b); (3) fraud; (4) the judgment is void;

(5) the judgment has been satisfied, released or discharged, or

an underlying judgment has been reversed or otherwise vacated; or

(6) any other reason justifying relief from the operation of the

judgment. See FED. R. CIV. P. 60(b). Rule 60(b) explicitly

provides that for reason one, two, or three, the motion "shall be

made . . . not more than one year after the judgment, order, or

proceeding was entered or taken." Id. If the motion for relief

is based upon reason four, five, or six, however, there is no

requirement that it be made within one year.

Tremble argues that the district court appropriately granted

his motion for reinstatement because his "attorney was solely at

fault for the failure to obtain service on the defendant." 

Specifically, Tremble claims that because his attorney was

disbarred, he was unexpectedly unable to effect timely service

upon General Dynamics, and is therefore entitled to relief

pursuant to Rule 60(b).

General Dynamics contends that Tremble was not entitled to 

relief under Rule 60(b) because his motion for reinstatement was

filed over one year after the original motion to dismiss for want

of prosecution. Alternatively, General Dynamics argues that if

the one year time limit provided for in Rule 60(b) is not
7

applicable, the district court erred in granting the motion to

reinstate because Tremble's motion to reinstate contained

material misrepresentations. Specifically, Tremble's motion to

reinstate stated that his suit was "dismissed on January 1, 1993,

for want of prosecution," when in fact Tremble's suit was

dismissed much earlier, on January 20, 1992.

It is clear that, although the district court did not cite a

specific source of authority for granting Tremble's motion to

reinstate, it was relying on either Rule 60(b)(1) ("mistake

inadvertence, surprise, or excusable neglect") or Rule 60(b)(6)

("any other reasons justifying relief from the operation of the

judgment"). The question before us, therefore, is whether the

district court abused its discretion in determining that Tremble

was not entitled to reinstatement under either of these two

provisions. 

With regard to Rule 60(b)(1), it is clear that Tremble's

motion to reinstate, which was filed on October 4, 1993, was

untimely. Rule 60(b) explicitly provides that relief from

judgment may be granted under subsection (1) only if the motion

for relief is filed within one year of the judgment. In the case

at hand, the judgment (i.e., the dismissal for want of

prosecution), occurred on January 20, 1992-- over one year and

eight months prior to Tremble's motion for reinstatement. Thus,

the district court did not abuse its discretion in determining

that Tremble was not entitled to relief from judgment under Rule

60(b)(1).
8

With regard to Rule 60(b)(6), we do not think that the

district court abused its discretion in determining that Tremble

was not entitled to relief because, even assuming that his

failure to effect timely service was due to his attorney's

disbarment, Tremble's motion for reinstatement clearly

misrepresented the date upon which his suit was dismissed. 

Relief pursuant to subsection (6) is discretionary, and such

discretion is certainly not abused when a court declines to

exercise its discretion in favor of a party who misrepresents

material facts to the court.

III. CONCLUSION

For the foregoing reasons, the order of the district court

granting General Dynamics' motion for reconsideration, thereby

reinstating the district court's earlier dismissal of this case,

is AFFIRMED.