IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30602

Summary Calendar

AUDREY RAYFORD; DARRYL RAYFORD, 

 Plaintiffs - Appellants

v.

KARL STORZ ENDOSCOPY AMERICA, INCORPORATED; KARL STORZ 

ENDOVISION, INCORPORATED, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:15-CV-2835

Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.

PER CURIAM:*

Audrey Rayford sued Karl Storz Endoscopy-America, Inc. and Karl Storz 

Endovision, Inc. (collectively the “Storz Defendants”) under the Louisiana 

Products Liability Act for complications following a uterine surgery. Storz filed 

a summary judgment motion, which the court granted after receiving no reply 

from Rayford. A week later, Rayford responded by filing a motion under Rule 

 

* 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

October 23, 2018

Lyle W. Cayce

Clerk

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No. 18-30602

2

60(b) of the Federal Rules of Civil Procedure to vacate the judgment. The 

district court denied the motion, and Rayford now appeals. Because the 

district court did not abuse its discretion, we AFFIRM.

I.

Rayford sued the Storz Defendants for complications arising after she 

received uterine surgery. On March 7, 2018, after two-and-a-half years of 

litigation, the Storz Defendants filed a motion for summary judgment. A day 

later, the district court sent out a notice requiring any party opposing the 

motion to file a response within twenty-one days.1 Rayford did not respond. 

So, on April 3, the district court granted the motion for summary judgment 

with a full opinion addressing the merits of the case.

A week later, Rayford’s counsel filed a Rule 60(b) motion to vacate the 

judgment. Rayford’s counsel claimed that he missed the deadline because a 

paralegal unexpectedly quit and did not calendar the deadline. He also claims 

that he has an illness that prevents him from visiting the office. The district 

court denied the motion. Rayford now appeals.

II.

The “decision to grant or deny relief under Rule 60(b) lies within the 

sound discretion of the district court and will be reversed only for abuse of that 

discretion.” Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en 

banc); see also Brittingham v. Wells Fargo Bank, N.A., 543 F. App’x 372, 373-

74 (5th Cir. 2013) (per curiam) (unpublished). Here, Rayford argues that the 

district court abused its discretion by denying her relief under Rules 60(b)(1) 

and 60(b)(6).

 

1 The motion for summary judgment came a day before the dispositive motion deadline that 

the court set over 6 months before, on August 16, 2017.

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Rule 60(b)(1) provides that a court “may relieve a party or its legal 

representative from a final judgment, order, or proceeding,” on the grounds of 

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

Plaintiffs argue that their failure to file a timely motion to reconsider and 

vacate the summary judgment order due to a paralegal’s sudden exit and 

failure to calendar the summary judgment deadline constitutes “excusable 

neglect.” This argument is unavailing.

A district court does not abuse its discretion when it denies a Rule 

60(b)(1) motion due to the “careless mistake of counsel.” Brittingham, 543 F. 

App’x at 374 (per curiam) (unpublished); see also Edward H. Bohlin Co., Inc. 

v. Banning Co., Inc., 6 F.3d 350, 356-57 (5th Cir. 1993). In fact, our case law 

establishes the opposite: “a court would abuse its discretion if it were to reopen 

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 court.” Edward H. Bohlin Co., Inc., 6 F.3d at 357.

Calendaring errors and mistakes about deadlines qualify as a careless 

mistake of counsel, as we have held numerous times, both before and after the 

Supreme Court’s ruling in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. 

P’ship, 507 U.S. 380 (1993). See, e.g., Brittingham, 543 F. App’x at 374 (per 

curiam) (affirming the district court’s ruling that a “calendar error” is not 

excusable neglect) (unpublished); Buckmire v. Mem’l Hermann Healthcare Sys. 

Inc., 456 Fed. App’x 431, 432 (5th Cir. 2012) (per curiam) (affirming the district 

court’s ruling that an attorney’s failure to calendar a court deadline is not

excusable neglect) (unpublished); Smith v. Alumax Extrusions, Inc., 868 F.2d 

1469, 1471 (5th Cir. 1989) (affirming the district court’s ruling that being 

unaware of “pending summary judgment motions” did not constitute excusable 

neglect). Accordingly, we cannot conclude that the district court abused its 

discretion in denying Rule 60(b)(1) relief.

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Plaintiffs also seek relief under Rule 60(b)(6). Subsection (6) is a “catchall provision, meant to encompass circumstances not covered by Rule 60(b)’s 

other enumerated provisions.” Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 

2002). Courts should only grant Rule 60(b)(6) motions “if extraordinary 

circumstances are present.” Id. (internal citation and quotation marks

omitted). Missing a deadline, however, is not an extraordinary circumstance. 

Cf. Gonzalez v. Crosby, 545 U.S. 524, 537 (2005) (concluding that a litigant’s

“lack of diligence” makes the circumstances “all the less extraordinary”). Thus, 

it was not an abuse of discretion to deny Rule 60(b)(6) relief.

III.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

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