* After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 7, 2006*

Decided December 8, 2006

Before

 Hon. MICHAEL S. KANNE, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge 

No. 06-1928

DENNIS MOORE,

Plaintiff-Appellant,

v.

CINGULAR WIRELESS CORP.,

Defendant-Appellee.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division 

No. 02 C 2079

Paul E. Plunkett, 

Judge.

O R D E R

Dennis Moore sued Cingular Wireless Corporation (“Cingular”), his former

employer, alleging race discrimination and retaliation in violation of Title VII, 42

U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The district court granted summary

judgment for Cingular in September 2004 and denied Moore’s first motion for relief

from judgment under Federal Rule of Civil Procedure 60(b) in November 2005. 

Moore filed a second Rule 60(b) motion in November 2005, which the district court

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-1928 Page 2

denied in March 2006. Moore filed a notice of appeal, but a motions panel of this

court concluded that it was untimely as to the underlying order on summary

judgment and limited the appeal to review of the March 2006 order denying Moore’s

second motion for relief from judgment. Because Moore has not satisfied any of the

grounds for relief under Rule 60(b), we affirm the denial of his motion.

Despite the motion panel’s limitation on the scope of his appeal, Moore’s

appellate papers address his case as if the summary judgment ruling were under

review. It is not. His first 60(b) motion was filed within ten days of the entry of

summary judgment, so it tolled the time for appeal only until that motion was ruled

on. See Borrero v. City of Chicago, 456 F.3d 698, 700-01 (7th Cir. 2006) (only the

first within-ten-day, post-judgment motion tolls the time to appeal the underlying

judgment); Andrews v. E.I. DuPont DeNemours & Co., 447 F.3d 510, 515 (7th Cir.

2006). The order denying Moore’s first post-judgment motion was entered on

November 8, 2005, and Moore had thirty days after that to appeal. He missed the

deadline by almost four months, so only the denial of his second Rule 60(b) motion

is properly before us. 

We review the denial of a Rule 60(b) motion for an abuse of discretion and

rarely disturb a district court’s decision on such a motion. See Harrington v. City of

Chicago, 433 F.3d 542, 546 (7th Cir. 2006); Karraker v. Rent-A-Center, Inc., 411

F.3d 831, 837 (7th Cir. 2005).

The district court did not abuse its discretion in denying Moore’s motion. 

Moore’s 60(b) motion primarily attacked the district court’s legal reasoning in

granting summary judgment, but such arguments should be raised on direct appeal,

not in a Rule 60(b) motion. See Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th

Cir. 2000) (“The ground for setting aside a judgment under Rule 60(b) must be

something that could not have been used to obtain a reversal by means of a direct

appeal.”); Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th

Cir. 1995) (“Rule 60(b) . . . is not an appropriate vehicle for addressing simple legal

error; otherwise, a party could circumvent the ordinary time limitation for filing a

notice of appeal.”). 

Moore also pointed to “new” evidence—specifically, his statement of facts and

supporting affidavits in opposition to summary judgment that the district court did

not previously consider because they were untimely. The district court, “out of an

abundance of caution,” reviewed these materials and noted that they had “no effect

on the outcome of the litigation.” We cannot say the district court abused its

discretion in reaching this conclusion because it had no obligation to review Moore’s

materials in the first place. Evidence is not “new” for Rule 60(b) purposes if it was

available before entry of the judgment, as was Moore’s evidence in this case. See

Harris v. Owens-Corning Fiberglas Corp., 102 F.3d 1429, 1433-34 & 1434 n.3 (7th
No. 06-1928 Page 3

Cir. 1996). Moreover, motions to reopen based on allegedly “new” evidence cannot

be brought more than a year after entry of the underlying judgment. See Fed. R.

Civ. P. 60(b)(2); Arrieta v. Battaglia, 461 F.3d 861, 864 (7th Cir. 2006). Moore’s

second 60(b) motion was filed in November 2005—more than a year after the court

granted summary judgment for Cingular in September 2004.

Finally, Moore’s second Rule 60(b) motion reiterated the argument he made

in his first motion for relief from judgment—that his attorney’s failure to timely

submit statements of facts in opposition to summary judgment amounted to

excusable neglect. But, as the district court correctly pointed out in denying

Moore’s first Rule 60(b) response, attorney inattentiveness to litigation is not

excusable. See Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004); see also

McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000) (“[N]either

ignorance nor carelessness on the part of the litigant or his attorney provide

grounds for relief under Rule 60(b)(1).”); United States v. 8136 S. Dobson St., 125

F.3d 1076, 1084 (7th Cir. 1997) (“[A] client is bound by his chosen agent’s deeds,

whether it be negligence, gross negligence, or even wilful conduct.”).

AFFIRMED.