* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 12, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

Summary Calendar

No. 03-20046

_______________________

JUNE JAMES,

Plaintiff-Appellant,

versus

RICE UNIVERSITY; KRISTI SUTTERMAN;

and KYLE CAVANAUGH,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas,

Houston Division

4:02-CV-1472

_________________________________________________________________

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM: *

Plaintiff June James appeals the district court’s

dismissal of her claims of race (African-America n) and national

origin (Guyanese) discrimination and the district court’s denial of

a number of post-judgment motions made by James to reinstate her

action. Some explanation of the background of the case and the2

procedura l history is necessary to understand which motions are

properly before this court and whether any relief is available to

James.

I. Background

On April 23, 2002, June James filed suit against Rice

University and two of its employees, Kristi Sutterman and Kyle

Cavanaugh, alleging that the defendants discriminated against her

b ased on her race and national origin in violation of the Civil

Rights Act of 1964. That same day, Judge Hughes filed an Order for

Confer ence which, i nter alia

, scheduled an initial pretrial

conference for August 12, 2002, and ordered the parties to file a

joint case management plan five days prior to the conference. In

addition, the Order require d counsel to have “interviewed their

clients and mastered the documents” prior to the conference and

indicated that “[f]ailure to comply with this order may result in

sanctions, including dismissal, cost assessment and prolonged

tirades by the court.” On August 5, the parties filed a joint

discovery/case management plan which provided specifi c dates by

which the parties would make their initial disclosures, dates for

the exchange of interrogatories and requests for production, and a

process for scheduling depositions.

From that point forward, James, through her then-counsel,

Rosalind A. Kelly, repeatedly failed to comply with the dates set

out in the joint plan, failed to provide the required documents,2 These events included counsel’s mother being bedridden in

Tucson, Arizona with severe health problems and the demands of

raising three toddlers.

3 and on at least one occasion, failed to appear for a scheduled

conference. As a result, on October 15, Rice University moved to

dismiss James’s claim for want of prosecution. On November 1,

James’s attorney responded by describing a series of events in her

personal life 2 that had hampered her re presentation of James and

arguing that her personal failures should not result in a dismissal

of James’s allegedly meritorious complaint. In support of the

merit of James’s claims, Ms. Kelly provided a list of incidents

that ostensibly indicated a pattern of discriminatory behavior on

the part of Rice University and its employees.

On November 4, Judge Hughes held a hearing on Rice

University’s motion for sanctions. After extensive discussion of

the merit, or lack thereof, of James’s claim and whether James’s

case should be affected by her co unsel’s self-admitted errors,

Judge Hughes announced that the case would b e dismissed because

James, through her attorney, had failed to “m eet her

responsibilities as the plaintiff.” The next day, a one-line order

was entered dismissing James’s claim with prejudice.

On November 14, within ten days of the entry of the order

dismissing the case, Ms. Kelly filed a motion styled “Motion to

Reconsider Dismissal of Action and Motion to Reinstate Case to

Court’s Active Docket.” This motion argued the substantive merit4

of James’s claim and requested reinstatement of the action. On

November 18, Judge Hughes entered an order denying the motion on

the ground that James had regularly missed court-ordered deadlines

in the case and had not addressed these deficiencies in the motion

to reconsider. On December 5, a second motion to reconsider was

filed by Ms. Kelly. This motion attempted to explain the reasons

for Ms. Kelly’s repeated failure to meet the deadlines set by the

district court. On December 10, the district court entered another

one-line order denying James’s second motion to reconsider. On

December 26, Ms. Kelly filed a notice of appeal discussing the two

motions to reconsider and indicating James’s intent to appeal “the

Court’s order dismissing the action.”

While these proceedin gs took place before the district

court, James retained substitute counsel to pursue a malpractice

claim against Ms. Kelly and take over the prosecution of her nowimperiled discrimination claim. On January 8, 2003, James’s new

coun sel, Martin Shellist, filed a motion styled “Plaintiff June

James’s Motion for Relief from Judgment and Motion to Reinstate.”

This third motion argued that the failures of James’s counsel

should not be held against James and that the act ion should be

reinstated. On January 13, the district court entered an order

indicating that it did not believe it had jurisdiction to consider

the latest motion filed by James because the filing of a notice of

appeal divested it of jurisdiction. On February 7, after being

denied an indicative ruling from the district court, James amended5

her original notice of appeal to include the January 13 order

denying the latest motion. This court then remanded the matter to

the district court for a ruling on the merits of the Rule 60(b)

motion, noting that a district court has jurisdiction to consider

a Rule 60(b) motion while a notice of appeal is pending and may

deny the motion or, with the leave of this court, grant the motion.

Pursuant to this court’s remand, the district court considered the

motion and denied relief indicating that James was responsible for

the errors and omissions of her lawyer.

II. Discussion

We must first consider which of the rulings made below

are properly before this court and then proceed to evaluate the

merits of the properly raised claims.

A. Original Dismissal Order

The original or der dismissing the case was entered on

November 5, 2002. Because the first motion for reconsideration was

filed on November 14, within ten days of the entry of the dismissal

order, and because it argues the merits of James’s claim, it is

appropriate to consider the motion as a Rule 59(e) motion to alter

or amend the judgment. See, e.g.

, Days v. Johnson , 322 F.3d 863,

865 n.3 (5th Cir. 2003). A Rule 59(e) motion tolls the filing

period for a notice of appeal while the motion is pending. S ee

F ED

. R. A PP

. P. 4(a)(4)(A)(iv). The motion was denied by the

district court on November 18 and thus the clock began running on3 James’s filing of two additional motions more ten days after

the entry of the dismissal order are properly considered Rule 60(b)

motions for relief from final judgment. S ee, e.g.

, McKethan v.

Texas Farm Bureau , 996 F.2d 734, 743 n.25 (5th Cir. 1993). As

such, they do not “affect the finality of a judgment or suspend its

operation.” Fed. R. Civ. P. 60(b). Thus, these motions do not

toll the filing period for a notice of appeal except as provided

for in Fed. R. App. P. 4(a)(4)(A)(vi).

6 James’s ability to appeal the dismissal order. Because no notice

of appeal was filed until December 26, the thirty-day period for

filing an a ppeal of the dismissal expired. S ee F ED

. R. A PP

.

4(a)(1)(A). As a result, this court lacks jurisdiction over the

district court’s original order dismissing the case. 3 Id

.

B. First Motion for Reconsideration

For the same reason, because James did not file a notice

of appeal from the order denying her original motion under

Rule 59(e) within the requisite thirty-day period, we lack

jurisdiction to review the district court’s decision to deny the

first motion for reconsideration. Id

.

C. Second Motion for Reconsideration

The appeal of the court’s denial of the second motion to

reconsider is within our appellate jurisdicti on. Because that

motion was filed more than ten days after the order dismissing

J ames’s action, it is properly viewed as a Rule 60(b) motion for

relief from judgment. The decision to grant or deny 60(b) relief

is within the sound d iscretion of the district court and will be

reversed only for an abuse of discretio n. S ee Provident Life &7

Accident Ins. Co. v. Goel

, 27 4 F.3d 984, 997 (5th Cir. 2002).

Under Rule 60 (b)(1), a court may relieve a party from a final

judgment or order for “mistake, inadvertence, surprise or excusable

neglect.” S ee F ED

. R. C IV

. P. 60 ( b)(1). The extraordinary relief

afforded by Rule 60(b) requires that the moving party make a

“showing of unusual or unique circumstances just ifying such

relief.” Pryor v. U.S. Postal Serv. , 769 F.2d 281, 286 (5th Cir.

1985).

James’s argument that she shoul d be excused from her

complete lack of compliance with the distri ct court’s pretrial

orders as a result of her counsel’s personal circums tances is

unavailing. This court has often held that “the mistakes of

counsel, who is the legal agent of the client, are char geable to

the client

. . . no matter how ‘unfair’ this on occasion may seem.”

Id. at 288 (citation omitted). As we have noted in the past,

“[w]ere this Court to make an exception to finality of judgment

each time a hardship was visited upon the unfortunate client of a

negligent or inadvertent attorney, even t hough the result be

disproportionate to the deficiency

. . . [the] meaningful finality

of judgment[s] would largely disappear.” I d. at 288-89. Thus, no

matter how much sympathy we may have for Ms. Kelly’s personal

situation or the prejudice her neglect has inflicted on her client,

Ms. Kelly’s actions do not constitute the type of “unusual or

unique circumstances” justifying Rule 60(b) relief. See, e.g.

,

Link v. Wabash R.R. Co.

, 370 U.S. 626, 633-36 (1962) (denying Rule8

60(b) relief based on a claim of attorney incompetence); Crutcher

v . Aetna Life Ins. Co. , 746 F.2d 1076, 1082-84 (5th Cir. 1984)

(same).

D. Third Motion for Reconsideration

The principal difference betwe en James’s second and

third motions for reconsideration is that the latter was filed by

her second, and clearly competent, attorney. Preliminarily, it is

important to note that a Rule 60(b) motion cannot be used as an

alternate avenue to appeal a final order of a district court. S ee,

e.g.

, Latham v. Wells Fargo Bank, N.A.

, 987 F.2d 1199, 1203-04

(5th Cir. 1993). Here, because a notice of appeal contesting the

denial of the second motion had already been timely filed, the

suc cessive 60(b) motion at issue here does not represent the

typical scenario where a party is attempting to extend the time

period for filing an appeal. However, where the grounds raised are

essentially the same as those in the previous motion, to consider

the merits of the successive motion would esse ntially allow

reargument. Even assuming, arguendo, that the third motion is

properly before us, the underlying argument is basically the same

– James should not be punished for her counsel’s complete and total

incompetence. For the reasons discussed above, the grounds cited

in the third motion do not merit Rule 60(b) relief.

The judgment of the district court is AFFIRMED.