United States Court of Appeals 

for the Fifth Circuit 

No. 20-10487 

Summary Calendar 

Phillip Sterling, Sr., 

Plaintiff—Appellant, 

versus

United States of America, 

Defendant—Appellee. 

Appeal from the United States District Court 

Northern District of Texas 

USDC No. 3:18-CV-526 

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Phillip Sterling appeals the district court’s summary judgment in 

favor of the United States (“the Government”) in this Federal Tort Claims 

Act (“FTCA”) case. See 28 U.S.C. §§ 1346(b) & 2674. For the following 

reasons, we AFFIRM. 

*

 Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

November 9, 2020 

Lyle W. Cayce 

Clerk 

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I. Facts & Procedural History 

In March 2018, Sterling, a United States military veteran appearing 

pro se, brought a medical negligence suit under the FTCA for injuries that he 

allegedly suffered during surgery at the Veterans Affairs North Texas 

Healthcare System in Dallas (“VA”). His complaint alleged that he 

sustained injuries in December 2014 during a robotic assisted surgical 

procedure that he underwent to have a cancerous mass on his kidney 

removed. According to Sterling, after the procedure, he began suffering from 

intense pain, weakness, tremors, numbness, fatigue, chronic cough, and 

permanent nerve damage. He stated in his complaint that, prior to the 

procedure that left him “crippled” and “100% disabled,” he “was a healthy 

adult male with the only medical condition known to him [being] the 

diagnosed left kidney cancer.” For his alleged injuries, Sterling sought 

compensatory, punitive, exemplary, and treble damages, and costs. 

 In June 2018, the Government filed its answer denying the allegations 

set forth in Sterling’s complaint. The district court set the parties’ discovery 

deadline for December 31, 2019. Sterling served discovery requests and the 

Government responded with documents over the next few months. In 

February 2019, Sterling filed to designate Peggy Martin as an expert. Then in 

May 2019, over a year after filing his original complaint, Sterling hired 

counsel. In July 2019, the district court extended the expert designation 

deadline to December 19, 2019, and the discovery deadline was extended to 

March 30, 2020. 

On February 28, 2020, the Government moved for summary 

judgment on all of Sterling’s claims. Sterling’s response to the summary 

judgment motion was due on March 20, 2020, but no response was filed. 

While the summary judgment motion was pending, the parties informally 

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discussed extending the response deadline to May 1, 2020,1 but Sterling 

never filed a motion for an extension with the district court. 

The district granted the Government’s summary judgment motion on 

March 31, 2020. It explained in its order that “[b]ecause the government has 

pointed to the absence of evidence to support Sterling’s claims and he has 

not produced evidence in response to the motion, the government is entitled 

to summary judgment dismissing Sterling’s action with prejudice.” In its 

memorandum opinion and order, the district court explained that 

“[a]lthough [Sterling’s] failure to respond does not permit the court to enter 

a ‘default’ summary judgment, ‘[a] summary judgment nonmovant who does 

not respond to the motion is relegated to [his] unsworn pleadings, which do 

not constitute summary judgment evidence[.]’” (internal citations omitted). 

The district court further reasoned that under Rule 56(e), it was permitted to 

accept the Government’s statement of facts as undisputed since Sterling did 

not contest them by responding to the motion. On this basis, summary 

judgment was appropriate since the motion and supporting materials—

including the facts considered undisputed—showed that the Government 

was entitled to the relief it sought. 

On April 1, 2020, twelve days after his response was due, and the day 

after the district court granted summary judgment in favor of the 

Government, Sterling moved to reinstate the case. About a week later, he also 

moved for an extension to file a response to the summary judgment motion 

and to designate an expert witness. The Government opposed the motions 

and objected to the expert witness designation. The district court treated 

Sterling’s motion to reinstate as a Rule 59(e) motion to alter or amend the 

1

 The parties appear to agree that the intended date was May 1, 2020 although an 

email between them mistakenly stated April 1, 2020. 

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judgment and denied it. See Fed. R. Civ. P. 59(e). It then denied as moot 

Sterling’s motion for an extension of time to respond to the Government’s 

summary judgment motion as well as the Government’s objection to 

Sterling’s expert witness designation. 

In its 22-page memorandum opinion and order, the district court again 

explained that it did not grant a “default” summary judgment but instead 

had granted the Government’s motion based on the absence of evidence to 

support Sterling’s claims and his failure to present evidence that created a 

genuine issue of material fact. The court clarified that, even if Sterling had 

timely responded to the motion, it would have nevertheless granted summary 

judgment for the Government because Sterling failed to properly designate 

expert witnesses who would have provided expert testimony to support his 

claims. With respect to Sterling’s attempts to designate expert witnesses, the 

district court noted that he failed to provide the required Rule 26 disclosures 

for both his retained and non-retained experts. See Fed. R. Civ. P.

26(a)(2)(B), (C). The district court further concluded that Sterling’s failure 

to provide the requisite Rule 26 disclosures was neither substantially justified 

nor harmless. The district court determined that, although the discovery 

period had not yet closed when it granted the Government’s summary 

judgment motion, the deadline to designate experts had passed, and Sterling 

had failed to seek an extension or other relief under Rule 56(d), so he was not 

entitled to relief under Rule 59(e). The district court also determined that 

Sterling was not entitled to Rule 59(e) relief after considering miscellaneous 

factors such as excusable neglect or a meritorious claim. The district court 

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concluded that Sterling was not entitled to relief on any asserted ground. 

Sterling filed this appeal.2 

II. Standard of Review 

 “We review a grant of summary judgment de novo.” Sanders v. 

Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Summary judgment is proper 

‘if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.’” Id. (citing Fed. 

R. Civ. P. 56(a)). “We generally review a decision on a motion to alter or 

amend judgment for abuse of discretion, although to the extent that it 

involves a reconsideration of a question of law, the standard of review is de 

novo.” Alexander v. Wells Fargo Bank, 867 F.3d 593, 597 (5th Cir. 2017). 

III. Discussion 

 Sterling argues on appeal that the district court erred in granting 

summary judgment in favor of the Government and that it abused its 

discretion in declining to alter or amend the judgment and in denying his 

motion to reinstate the case. We disagree. 

 As an initial matter, the district court’s summary judgment in favor of 

the Government was proper. As the district court noted, even if Sterling had 

filed a response to the Government’s summary judgment motion, he failed 

to come forward with the requisite Rule 26 disclosures needed for his 

designated retained and unretained experts. Without properly designated 

expert witnesses who could provide expert testimony to support his claims, 

Sterling could not rebut the Government’s summary judgment motion. See 

Hannah v. United States, 523 F.3d 597, 602 (5th Cir. 2008) (“Because the 

2

 Sterling appeals the district court’s summary judgment in favor of the 

Government and its subsequent judgment denying Sterling’s motion to reinstate the case. 

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mode of treatment for [the infection] is not a matter of common knowledge 

or within the general experience of a layman, [the plaintiff] was required to 

present expert testimony to establish the applicable standard of care and to 

show how the care he received breached that standard. He neither designated 

nor hired an expert to testify on his behalf, so the district court properly 

granted summary judgment on the FTCA claim.”). 

Likewise, Sterling’s argument that the district court erred in granting 

summary judgment prior to the close of discovery is misplaced. Because he 

failed to properly designate his expert witnesses by the December 2019 

expert designation deadline, the March 2020 discovery deadline was 

“immaterial” to its consideration of the Government’s motion for summary 

judgment. See Emery v. Medtronic, Inc., 793 F. App’x 293, 296 (5th Cir. Dec. 

9, 2019) (per curiam) (unpublished) (“It is immaterial that the discovery 

period had not closed before the district court ruled on [the defendant’s] 

motion for summary judgment. The deadline for [the plaintiff] to designate 

experts had passed, and [the plaintiff’s] design defect claim could not survive 

summary judgment without expert testimony.”). 

The district court’s denial of Sterling’s motion to reinstate the case or 

alter or amend the judgment was also warranted. The Government did not 

move for summary judgment until nearly two years after Sterling filed the 

initial lawsuit and approximately nine months after he had retained counsel. 

Sterling had adequate notice to prepare and respond but failed to do so. 

Moreover, the district court waited an additional eleven days after Sterling’s 

response deadline had passed before granting summary judgment for the 

Government. Sterling contends that his attorney failed to request an 

extension to respond to the Government’s summary judgment motion 

because he was “focus[ed] on establishing [] discovery deadlines.” This 

argument is unpersuasive. As the district court observed, Sterling’s 

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counsel’s failure “to comply with the court’s scheduling order or Rule 563

due to counsel’s carelessness with or misapprehension of . . . the applicable 

rules of court does not warrant Rule 59(e) or Rule 60(b)(1) relief.” See 

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993) 

(“In fact, a court would abuse its discretion if it were to reopen a case [under 

the Federal Rules] 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.”). 

IV. Conclusion 

For the forgoing reasons, the district court’s summary judgment in 

favor of the Government and its judgment denying Sterling’s motion to 

reinstate the case are AFFIRMED. 

3

 Federal Rule of Civil Procedure 56(d) provides an avenue for counsel to seek a 

continuance should it need an extension of a summary judgment response deadline. 

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