IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40129

Summary Calendar

PHILLIP DAVID HASKETT,

Plaintiff-Appellant

v.

CAPITAL LAND SERVICES, INCORPORATED, also known as CLS Group; 

JASON WALKER; MATT TIPTON; UNKNOWN EMPLOYEES OF CLS 

GROUP NUMBER 1 - NUMBER 9; UNKNOWN CLIENTS OF CLS GROUP 

NUMBER 1 - NUMBER 9,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:14-CV-279

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Phillip David Haskett appeals the denial of his Federal Rule of Civil 

Procedure 60 motion. We affirmed the district court’s summary judgment 

dismissal of his complaint in a prior appeal. Haskett v. Capital Land Servs., 

Inc., 671 F. App’x 237, 237 (5th Cir. 2016). We held, inter alia, that Haskett 

 

* 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

FILED

March 2, 2018

Lyle W. Cayce

Clerk

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No. 17-40129

2

waived review of whether the district court erred in granting summary 

judgment without further notice by failing to raise this claim of error in the 

district court. Id. Following our affirmance, Haskett filed the instant Rule 60

motion.

In the district court, Haskett argued that he should be relieved from the 

dismissal on the merits of his age discrimination claim because the district 

court induced his failure to contest this issue when it denied his discovery 

motion and ordered him to address the timeliness of this claim. The relief 

sought by Haskett was outside the scope of Rule 60(a). See Rivera v. PNS 

Stores, Inc., 647 F.3d 188, 199 (5th Cir. 2011). 

Rule 60(b)(1), Federal Rule of Civil Procedure, instructs that the district 

court may provide relief from a final judgment for “mistake, inadvertence, 

surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). A reasonable 

construction of the district court’s order was that Haskett could reurge his 

discovery motion, which would presumably assist him in opposing a dismissal 

on the merits of his age discrimination claim, after the district court resolved 

the timeliness of this claim. Before the district court did so, the defendants 

stipulated that the claim was timely. At this point in time, it should have been 

apparent to Haskett that he should inquire about the status of this claim or 

reurge his motion for discovery. Haskett, however, did nothing. 

Approximately nine months later, the district court granted the defendants’ 

motion for summary judgment. We conclude that the district court did not 

abuse its discretion in denying Haskett Rule 60(b)(1) relief in these

circumstances. See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 352, 

356-57 (5th Cir. 1993).

Given our conclusion, we need not address the defendants’ alternative 

argument that our prior affirmance precluded the district court from altering 

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the judgment. See Becker v. Tidewater, Inc., 586 F.3d 358, 368 n.8 (5th Cir. 

2009). Additionally, we decline to sanction Haskett for pursuing the instant 

appeal, as urged by the defendants, because we conclude that Haskett’s appeal 

“involves legal points arguable on their merits” and is therefore not frivolous. 

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks 

and citation omitted). 

The judgment of the district court is AFFIRMED.

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