                                                                                             United States Court of Appeals
                                                                                                      Fifth Circuit
                                                                                                    F I L E D
                                                                                                    January 23, 2004
                         IN THE UNITED STATES COURT OF APPEALS
                                                                                                Charles R. Fulbruge III
                                       FOR THE FIFTH CIRCUIT                                            Clerk
                                         ______________________

                                              No. 03-60280
                                            Summary Calendar
                                        _______________________

DEDRIC BROWN,                                                                                Plaintiff-Appellant,



                                                      versus

MISSISSIPPI COOPERATIVE
EXTENSION SERVICE, ET AL.,
Defendants,


MISSISSIPPI COOPERATIVE
EXTENSION SERVICE, ET AL.,

                                                                                         Defendants-Appellees.

                           _________________________________________

                              Appeal from the United States District Court
                                for the Southern District of Mississippi
                                     (USDC No. 3:01-CV-972BN)
                           _________________________________________

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

        Plaintiff-Appellant, Dedric Brown (“Brown”) appeals the decision of the district court which




        *
         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 R. 47.5, the Court has determined that this opinion should not be published and is not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.
granted Defendant-Appellees Mississippi Cooperative Extension Service, Et Al.1’s (“MCES”) motion

to dismiss as untimely his employment discrimination complaint. Brown also appeals the district

court’s denial of his FRCP 59(e) Motion for Reconsideration (“Reconsideration Motion”).

                                                  DISCUSSION

         Brown filed his lawsuit alleging a claim of employment discrimination under Title VII, 42

U.S.C. § 2000e, et seq on December 14, 2001. In a June 5, 2002 Order, the district court granted

MCES’ motion to dismiss for untimely service as to the defendants who had not been served, while

quashing the service of process on the remaining defendants,2 all of whom had been ineffectively

served because the summons and copies of the complaint had been mailed to Mississippi Attorney

General Mike Moore rather than hand-delivered as required by Mississippi Rule of Civil Procedure

(“MRCP”) 4(c)(3)(A).3 The district court also extended the time during which Brown could

effectuate proper service on these defendants until July 8, 2002. On October 29, 2002, the district

court granted MCES’ renewed dismissal motion because Brown had not effectuated proper service

of process by the July 8, 2002 deadline. On February 10, 2003, the district court denied Brown’s

reconsideration motion. Brown appeals both of these orders.

         MCES asserts that this court lacks jurisdiction to hear Brown’s appeal because his March 13,


         1
          Mississippi State UniversityExtension Service (“MSUES”); Mississippi State University (“MSU”); the Board
of Trustees of the State Institutions of Higher Learning; Dr. Thomas Layzell, in his individual and official capacities;
and in their official capacities: Malcolm Portera; Ronald A. Brown; Jackie Courson; Larry C. Mann; Joseph
McGilberry; James McPhail; Dr. Charles Lee; Clifton Hampton; Dwayne Wheeler; and Ronnie White.

         2
             Supra, note 1.

         3
           MRCP 4 (c)(3)(A) provides that service upon a defendant of any class referred to in paragraphs (1) or (4)
of subdivision (d) may be accomplished by mail. Paragraphs (1) and (4) of subdivision (d) deal with individuals other
than unmarried infants or mentally incompetent persons and domestic or foreign corporations, partnerships and other
unincorporated associations. Paragraph (5) of subdivision (d), by contrast states that “Service by sheriff or process
server shall be made as follows: Upon the State of Mississippi or any one of its departments, officers or institutions,
by delivering a copy of the summons and compliant to the Attorney General of the State of Mississippi.”

                                                           2
2003, Notice of Appeal failed to mention the October 22, 2002 Order, violating Federal Rule of

Appellate Procedure (“FRAP”), 3(c)(1)(B). While MCES is correct that Brown only mentioned the

February 10, 2003 denial of his reconsideration motion, we exercise our broad discretion to hear

Brown’s appeal on the merits as to both orders because we find that he intended to appeal both. See

C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.), cert. denied, 454

U.S. 1125 (1981).

       The October 29, 2002 Order

       We review a district court’s grant of dismissal for improper service of process pursuant to

FRCP 4(m), as well as its finding of a lack of good faith for failing to make timely service, for abuse

of discretion. See Marshall v. Warwick, 155 F.3d 1027, 1030 (5th Cir. 1998) and McGinnis v.

Shalala, 2 F.3d 548, 550 (5th Cir. 1993).

       In its June 5, 2002 Order the district court, citing George v. United States Dept. of Labor,

Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986), exercised its discretion

to quash Brown’s original service of process on MCES and gave him until July 8, 2002, to effectuate

proper service of process. When Brown failed to make proper service of process by the July 8, 2002

deadline, the district court granted MCES’ Renewed Motion to Dismiss.

       We find that the district court did not abuse its discretion in finding that his proffered excuse

for missing the July 8, 2002 deadline. The medical problems of his attorney Becky Allen Farrell

(“Farrell”), and her resignation on July 22, 2002, did not constitute good cause. The record clearly

shows that Brown failed to meet the July 8, 2002 deadline. Furthermore, Farrell’s resignation

occurred two weeks after the deadline, and the firm had approximately one month from June 5, 2002,

to make proper and timely service. Additionally, her resignation from the firm did not require Brown

                                                  3
to search for a new attorney because another attorney at the firm, Carol Henderson, was named on

Brown’s original complaint and had been involved with his case.

        We also find no abuse of discretion in the district court’s decision not to grant Brown a

discretionary extension. We agree with the district court’s reasoning that such was not warranted

because Brown failed to serve timely the defendants even though they all are citizens of Mississippi

and could have been served by simply making hand-delivery to the Attorney General as the June 5,

2002 Order clearly instructed.

        The February 10, 2003 Order

        We review a district court’s denial of an FRCP 59(e) motion to reco nsider its denial of an

extension to make proper service of process for abuse of discretion. Schiller v. Physicians Resource

Group, Inc., 342 F.3d 563, 566 (5th Cir. 2003).

        A FRCP 59(e) motion to reconsider should not be granted unless there is: (1) an intervening

change in controlling law; (2) the availability of new evidence not previously available; and (3) the

need to correct a clear error of law or fact or to prevent a manifest injustice. See e.g., Schiller, 342

F.3d at 567; Atkins v. Marathon Le Torneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990); Russ v.

International Paper Co., 943 F.2d 589, 593 (5th Cir. 1991), cert. denied, 503 U.S. 987 (1992).

        The district court, in denying Brown’s reconsideration motion, did not abuse its discretion

because there has been no intervening change of law, Brown has not produced any evidence that was

not previously available to him but simply restates his “good cause” argument. He has not shown that

the district court made a clear error of law that would result in a manifest injustice because the record

shows that he failed to meet the July 8, 2002 deadline.

                                           CONCLUSION


                                                   4
       Because we find that the district court did not abuse its discretion in granting MCES’ motion

to dismiss in its October 29, 2002 Order, nor in its denial of Brown’s reconsideration motion in its

February 10, 2003 Order, we affirm the district court’s dismissal of Brown’s claim.

AFFIRMED.




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