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The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3511

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Kevin L. Noah,

Appellant,

v.

Bond Cold Storage,

Appellee.

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Appeal from the United States

District Court for the

Western District of Missouri.

[PUBLISHED]

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Submitted: May 12, 2005

 Filed: May 23, 2005

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Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges. 

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PER CURIAM.

Kevin L. Noah sued Bond Cold Storage, his former employer, alleging

discrimination and retaliation in the workplace. The district court1

 dismissed his

lawsuit with prejudice after Noah failed to comply with a scheduling and trial order

and then failed to respond to an order to show cause why the matter should not be

dismissed. Noah now appeals the district court's denial of his second motion to set
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aside the judgment for excusable neglect under Federal Rule of Civil Procedure

60(b)(1). We affirm. 

The district court issued a scheduling and trial order on March 11, 2004,

directing the plaintiff to file by June 1, 2004, a designation of each incident of

discriminatory treatment that might be offered at trial. Noah failed to comply with

this order and did not seek leave to file the designation out of time. Bond Cold

Storage was consequently unable to file its list of affirmative defenses to each

incident by June 14, 2004, as required by the scheduling and trial order, and it

therefore moved the court to dismiss the complaint for Noah's failure to designate any

incidents of discriminatory treatment. On June 18, 2004, the district court entered an

order requiring the plaintiff to show cause by July 1, 2004, why his complaint should

not be dismissed for his failure to comply with the scheduling and trial order. Noah

failed to respond to the show-cause order, and as a result, the district court dismissed

his complaint with prejudice on July 9, 2004. See Fed. R. Civ. P. 41(b) (authorizing

dismissal of an action for the plaintiff's failure to comply with any order of court). 

On July 19, 2004, Noah's attorney filed a motion to set aside the dismissal but

provided no reason for not complying with the court's orders other than that he

intended to file the list electronically in response to the court's show-cause order but

mistakenly did not do so before he left for vacation in late June. He attached a list of

discriminatory treatment incidents but offered no excuse for not complying with the

court's original scheduling and trial order deadline of June 1. On August 4, 2004, the

district court denied the motion. On August 6, 2004, in a second motion to set aside

the judgment, Noah's counsel informed the district court that he did not timely file the

designation of incidents by June 1 because his busy schedule diverted his attention.

On September 9, 2004, the district court denied the second motion to set aside the

dismissal, concluding that neither counsel's carelessness nor busy schedule
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constituted excusable neglect for purposes of Rule 60(b)(1). Noah filed a notice of

appeal on October 6, 2004. 

Noah did not file a notice of appeal within 30 days after the August 4 denial

of his first postjudgment motion. See Fed. R. App. P. 4(a)(4)(A)(vi) (permitting the

time for appeal to begin running after the entry of an order disposing of a Rule 60(b)

motion that was filed within ten days of judgment). His second postjudgment motion

was a timely-filed Rule 60(b) motion, but because it was not filed within 10 days of

the dismissal, it did not toll the time for appeal of the original dismissal. See id.

Thus, Noah's October 6 notice of appeal is timely only with respect to the district

court's September 9 order denying his second Rule 60(b) motion to set aside the

judgment. See Fed. R. App. P. 4(a)(1)(A) (requiring a notice of appeal to be filed

"within 30 days after the judgment or order appealed from is entered"). 

An appeal from the denial of a Rule 60(b) motion does not raise the underlying

judgment for our review but only the question of whether the district court abused its

discretion in ruling on the Rule 60(b) motion. Sanders v. Clemco Indus., 862 F.2d

161, 169 (8th Cir. 1988). We will find an abuse of discretion only when the district

court's judgment was based on clearly erroneous fact-findings or erroneous

conclusions of law. Roark v. City of Hazen, 189 F.3d 758, 761 (8th Cir. 1999).

"Reversal of a district court's denial of a Rule 60(b) motion is rare because Rule 60(b)

authorizes relief in only the most exceptional of cases." Int'l Bhd. of Elec. Workers

v. Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir. 2002). 

Under Rule 60(b)(1), a district court may grant relief from a judgment on the

grounds of "mistake, inadvertence, surprise, or excusable neglect." The term

"excusable neglect" in this context is generally "'understood to encompass situations

in which the failure to comply with a filing deadline is attributable to negligence.'"

Union Pac. R.R. v. Progress Rail Servs. Corp., 256 F.3d 781, 782 (8th Cir. 2001)

(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 394 (1993)).
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To be excusable, however, the neglect must be accompanied by a showing of good

faith and some reasonable basis for not complying with the rules. Ivy v. Kimbrough,

115 F.3d 550, 552 (8th Cir. 1997). It is generally held that "excusable neglect" under

Rule 60(b) does not include ignorance or carelessness on the part of an attorney.

Hunt v. City of Minneapolis, 203 F.3d 524, 528 n.3 (8th Cir. 2000); Hoffman v.

Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969). Neither a mistake of law nor the

failure to follow the clear dictates of a court rule constitutes excusable neglect. See

Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 404 (8th Cir. 2000). 

Here, the district court's scheduling and trial order clearly required Noah to file

a designation of incidents of discriminatory treatment by June 1, yet Noah failed to

comply. Further, the order to show cause clearly warned that a failure to respond

would result in a dismissal of the complaint, yet Noah failed to respond. In support

of his second Rule 60(b) motion, Noah's counsel stated that his concentration was

focused on other matters because his schedule was "unusually complicated after a

holiday weekend." (App. at 135.) Noah asserts that the failure to comply with the

court's orders should be overlooked because he was not dilatory in other discovery

matters in this case and because Bond Cold Storage does not demonstrate that it

suffered prejudice from his failure to comply with the court's orders.

After considering all of the relevant circumstances, we find no abuse of

discretion in the district court's denial of Rule 60(b) relief in this matter. See Ceridian

Corp., 212 F.3d at 403 ("Whether a party's neglect of a deadline may be excused is

an equitable decision turning on 'all relevant circumstances surrounding the party's

omission.'" (quoting Pioneer, 507 U.S. at 395)). Noah has not demonstrated that the

facts surrounding his failure to comply with the scheduling and trial order or the order

to show cause amounted to excusable neglect on his part within the meaning of Rule

60(b). An attorney's failure to follow the clear dictates of a court order does not

amount to excusable neglect. See id. at 404.

 
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Accordingly, we affirm the district court's September 9, 2004, denial of relief

under Rule 60(b)(1).

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