     Case: 10-30582 Document: 00511341722 Page: 1 Date Filed: 01/06/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           January 6, 2011

                                     No. 10-30582                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ASSOCIATED MARINE EQUIPMENT, LLC

                                                   Plaintiff-Appellant
v.

EDMOND JONES

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:05-CV-2837


Before WIENER, PRADO, and OWEN Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Associated Marine Equipment (“AME”) appeals the
district court’s grant of Defendant-Appellee Edmond Jones’s F ED. R. C IV. P. 60(b)
motion for relief from judgment. Jones, in response, filed a motion to dismiss
AME’s appeal for lack of appellate jurisdiction. We grant Jones’s motion and
dismiss this appeal.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                        No. 10-30582

                           I. FACTS AND PROCEEDINGS
       This case is before us for a second time.1 On appeal from the district
court’s original denial of Jones’s Rule 60(b) motion, we vacated the court’s order
and remanded on the ground that the record was not sufficiently developed,
making the denial order premature. The district court then developed the record
by taking the depositions of Jones, his wife, and his former lawyer, Clara
Toombs. After subsequent briefing and oral argument, the district court granted
Jones’s Rule 60(b) motion for relief from the judgment.
       Rule 60(b) permits the district court to relieve a party from the effect of a
final judgment for several reasons, including mistake, surprise, excusable
neglect, newly discovered evidence, fraud, release, satisfaction, and any other
reason that justifies such disposition. The “main application [of a Rule 60
motion] is to those cases in which the true merits of a case might never be
considered because of technical error . . . .”2              We ordinarily do not have
jurisdiction to hear appeals of Rule 60(b) motions because they are purely
interlocutory.3 Among the limited exceptions, however, is when “the district
court acts without the power to do so.” 4
       In the instant case, AME alleges that Jones did not file his motion within
a reasonable time, which is a requirement for the district court to have
jurisdiction to consider a Rule 60(b)(6) motion. The district court entered the
original judgment against Jones in August, 2006. Jones, however, did not find
out about the dismissal of his case until October or November of that year.



       1
           Assoc. Marine Equip. v. Jones, 301 F. App’x 346 (5th Cir. 2008).
       2
           Fackelman v. Bell, 564 F.2d 734, 735 (5th Cir. 1977).
       3
           Hand v. United States, 441 F.2d 529, 531 n.1 (5th Cir. 1971).
       4
        Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 (5th Cir. 2004) (emphasis and citation
omitted).

                                               2
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                                         No. 10-30582

Then, Jones did not file his Rule 60(b) motion until February, 2007, some three
to four months after learning that his claims had been dismissed and almost six
months after AME had moved to dismiss Jones’s opposition to its suit.


                                       II. ANALYSIS
       Although Rule 60(b)(1) motions must be filed within one year after entry
of the judgment or order, Rule 60(b)(6) motions, such as this one, are subject to
the more nebulous “reasonable time” requirement. A reasonable time for filing
such a motion is defined by the particular facts and circumstances of each case.5
In this case, AME contends that there was unreasonable delay because (1) Jones
waited several months after the final judgment before he even attempted to
determine the status of his case, and (2) Jones then waited three to four months
after learning that the judgment against him had been entered before he filed
his Rule 60(b) motion.
       It is true that a party has a duty of diligence to inquire as to the status of
his case.6       This duty does not hold, however, for a client whose counsel
withdraws without informing him.7 In the instant case, Jones believed (and had
good reason to believe) that he was being adequately represented by his now-
former lawyer, Clara Toombs. In reality, as the further developed record shows,
Toombs relocated to Monroe, Louisiana after Hurricane Katrina and was




       5
         First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 119 (5th Cir. 1992).
See also Sudeikis v. Chicago Transit Auth., 774 F.2d 766, 769 (7th Cir. 1985) (“There is no
hard and fast rule as to how much time is reasonable for the filing of a Rule 60(b)(6) motion;
courts have found periods of as little as a few months unreasonable, and have found periods
of as long as three years reasonable.”).
       6
        See Pryor v. U.S. Postal Serv., 769 F.2d 281, 287 (5th Cir 1985); Wilson v. Altwood
Group, 725 F.2d 255, 257-58 (5th Cir. 1984) (en banc).
       7
           Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 403 (5th Cir. 1981).

                                                3
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                                       No. 10-30582

generally non-responsive to Jones’s repeated attempts to contact her.8 The
district court credited and relied on Jones’s testimony that he believed that
Toombs was representing him through August, 2006. Furthermore, at that time,
Jones and his wife were trying to rebuild their lives following Katrina. Jones
had to rebuild his home, which suffered major damage during the hurricane. In
addition, just before Katrina, Jones had developed a hole in the pallet of his
mouth which left him unable to speak for several months and required three
surgeries to correct. In light of the confusion after Katrina, Jones’s ill health,
and his belief that Toombs was representing his interests adequately, it is
reasonable that it took Jones until the fall of 2006 to ascertain the status of his
claims.
       Additionally, the three to four month delay between learning that his
claims had been dismissed and the filing of his Rule 60(b) motion was not
unreasonable. According to Jones’s testimony, he interviewed two lawyers as
potential replacements for Toombs and was declined both times before finding
new counsel to take over his case. Morever, Jones underwent his last surgery
in October 2006, which almost certainly contributed to his delay. Furthermore,
because the case was dismissed for Jones’s failure to tender discovery responses
or appear for his deposition — no doubt as a result of Toombs’s failure to
communicate with Jones — he never had the opportunity to litigate the merits
of his case. Although we consider “finality . . . an important goal, the justice-
function of the courts demands that it must yield, in appropriate circumstances,




       8
         The record further indicates that Toombs (1) never advised Jones of his scheduled
deposition, (2) never transmitted the responses to AME interrogatories that she had received
from Jones, (3) never accepted the medical records that Jones transmitted to her correct
address by certified mail, (4) never advised Jones of a pending trial date, and (5) never told
Jones that his case had been dismissed or that a judgment had been rendered against him for
attorney’s fees, expenses and costs.

                                              4
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                                          No. 10-30582

to the equities of the particular case in order that judgment might reflect the
true merits of the case.” 9


                                  III. CONCLUSION
      We hold that Jones’s Rule 60(b) motion, which the district court granted,
was timely for the reasons set forth above. We therefore lack appellate
jurisdiction to hear this appeal. Accordingly, we GRANT Jones’s motion to
dismiss this appeal for lack of appellate jurisdiction and REMAND this case for
further proceedings, consistent herewith.




      9
          Seven Elves, 635 F.2d at 401.

                                               5
