FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 31, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10132

Non-Argument Calendar

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D. C. Docket No. 03-22181-CV-JLK

LUIS RIVERA MONTERO, 

Plaintiff-Appellant, 

versus 

JOHN E. POTTER, as Postmaster General 

of the United States, 

Defendant-Appellee. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 31, 2006)

Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:
Montero argues for the first time on appeal the district court erred in not setting aside the 1

summary judgment order underlying his Rule 60(b)(1) motion on the basis that his attorney

rendered ineffective assistance. We need not address this issue because we find the order

denying post-judgment relief should be vacated for the reasons set forth herein. 

2

Luis Rivera Montero appeals the district court’s denial of his Federal Rule of

Civil Procedure 60(b)(1) motion for relief from summary judgment as to his

employment discrimination action, filed against John Potter, Postmaster General of

the United States (Post Office), under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-3(a). He asserts the district court abused its discretion in denying

his motion for relief from the judgment based upon “excusable neglect.”1

We review the district court’s denial of relief under Rule 60(b) for abuse of

discretion. Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1304 n.4 (11th Cir.

2000). We consider only the denial of relief as to the motion filed under Rule

60(b), not the underlying judgment. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111,

1115 (11th Cir. 1993) (internal quotation and citation omitted). 

A party may file a motion for relief from a judgment or order based upon

“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). 

To prevail on this ground, the appellant has the burden to demonstrate a

justification so compelling the court was “required” to vacate its order. Rice v.

Ford Motor Co., 88 F.3d 914, 919 (11th Cir. 1996). Generally, such relief “is an

extraordinary remedy which may be invoked only upon a showing of exceptional
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

2

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to close of business on September 30, 1981.

3

circumstances.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). 

We have also held “where denial of relief [under Rule 60(b)] precludes

examination of the full merits of the cause, even a slight abuse may justify

reversal.” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). 

2

In Seven Elves, we found the district court abused its discretion in failing to

grant a Rule 60(b) motion where doing so was necessary to “accomplish justice”

given the “truncated proceedings” that led to an entry of a judgment against the

appellants, who also “did not appear, either personally or through an attorney” at

the proceeding due to “unusual circumstances.” Seven Elves, 635 F.2d at 403-04. 

The following factors were considered in reaching this determination: 

(1) [t]hat 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 his 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.
4

Id. at 402. 

Applying the factors set forth in Seven Elves to the circumstances of this

case, we find the district court’s denial of relief was sufficiently “misaligned with

the equities” as to warrant reversal. See id. at 402-03. First, Montero does not

seek to use the Rule 60(b) motion in this case as a substitute for appeal. See id. at

402. His motion was brought within a “reasonable time” after the denial of the

post judgment motion, as it was filed only seven days after the district court

ordered summary judgment. See id. Further, the summary judgment order was

entered in Montero’s absence, prior to the taking of evidence by him, and without

the requisite ten-day notice under Federal Rule of Civil Procedure 56(c), such that

the extent to which he had an opportunity to present his case is at best unclear. 

See id. Accordingly, the proceedings before the district court were “truncated”

such that “Rule 60(b) [should] be liberally construed in favor of trial on the full

merits of the case.” Id. 

Finally, we note Hurricane Jeanne struck the area during the time the motion

was pending, and in denying Montero’s Rule 60(b)(1) motion, the district court

failed to explain why the hurricane was not a basis for “excusable neglect.” 

Rather, it cited as the basis for its ruling, first, its desire to reach a timely

disposition of the case, and, second, its apparent determination that Montero’s
5

failure to respond to the motion was the result of his attorney’s oversight. For the

foregoing reasons, we find that the district court’s denial of Montero’s Rule

60(b)(1) motion was an abuse of discretion. Accordingly, we vacate the district

court’s order that was entered on October 1, 2004, and remand for further

proceedings.

VACATED AND REMANDED.