                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS         February 15, 2007
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                 Clerk

                             No. 06-10286
                           Summary Calendar
                        ))))))))))))))))))))))))))

JOHN DAVID CASTLEBERRY,

                  Plaintiff–Appellant,

     v.

CITIFINANCIAL MORTGAGE COMPANY INC., also known as
Citifinancial Inc., also known as Associates Financial Services
Company of Texas Inc., also known as Citigroup;
CITIFINANCIAL, INC.,

                  Defendants–Appellees.


           Appeal from the United States District Court
                for the Northern District of Texas
                         No. 4:06-CV-0004



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Before us is an appeal by Plaintiff-Appellant John David

Castleberry (“Castleberry”) of the district court’s order

dismissing his complaint without prejudice after Castleberry

failed to timely file an amended complaint as ordered by the

district court.    For the following reasons, we AFFIRM.



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
              I.    FACTUAL AND PROCEDURAL BACKGROUND

     On January 5, 2006, Castleberry, proceeding pro se, filed a

complaint in federal district court against various CitiFinancial

entities (“CitiFinancial”).   Castleberry’s complaint concerned

the pending foreclosure by CitiFinancial on some property owned

by Castleberry.    The complaint itself was thirty-five pages long,

referenced cases from Connecticut, Florida, Hawaii, Texas, and

various bankruptcy courts, cited to statutes out of Florida and

Texas, and appeared to seek relief under the common law, as well

a variety of federal statutes and regulations.    On the same day

he filed his complaint, Castleberry requested a temporary

restraining order (“TRO”) to prevent the foreclosure of his

property and his subsequent eviction.

     Later that day, the district court held a telephone

conference to consider the TRO.   As a result of the conference,

the district court denied Castleberry’s request for a TRO,

dismissed all CitiFinancial defendants except for CitiFinancial

Mortgage Company, Inc. and CitiFinancial, Inc., and gave

CitiFinancial twenty days to move for summary judgment.    By

separate order on January 6, 2006, the district court also

ordered Castleberry to file an amended complaint in keeping with

Rule 8 of the Federal Rules of Civil Procedure.   The order stated

that this was to enable the district court to understand the

precise nature of Castleberry’s claims.   The order also cautioned



                                  2
Castleberry under Rule 11 to refrain from making frivolous claims

and to limit his claims to the two remaining defendants.

Relevant to this appeal, the order stated as follows:

     The court ORDERS that by 2:00 p.m. on January 17, 2006,
     [Castleberry] file with the clerk an amended complaint

                               . . .

     The court cautions [Castleberry] that if he fails to
     strictly comply with the directives of this order he is
     at risk that his complaint will be dismissed without
     further notice.

     Castleberry did not file an amended complaint on January 17,

2006, so on January 18, 2006, the district court dismissed

Castleberry’s claims without prejudice for failing to comply with

the district court’s January 6 order.    The district court also

entered a final judgment to that effect.    Castleberry contends

that he mailed his amended complaint on January 17, 2006,

“postmarked January 18, 2006,” and that it was received by the

clerk’s office on January 20, 2006.    The record reflects that the

clerk’s office did receive the amended complaint on January 20,

but refused to file it, citing the district court’s earlier

order, and returned it to Castleberry.

     On February 16, 2006, Castleberry filed a motion for

reconsideration based on Rules 59 and 60 of the Federal Rules of

Civil Procedure.   The district court denied Castleberry’s motion

on February 17, 2006.   Castleberry then filed his appeal on March

16, 2006.



                                 3
                        II.   JURISDICTION

     CitiFinancial contends that, while this court has

jurisdiction to consider the district court’s February 17 order

on Castleberry’s motion for reconsideration, this court lacks

jurisdiction to review the district court’s January 18 order and

judgment because they were not timely appealed.    We agree.

     Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure

states that a notice of appeal must be filed within thirty days

after the judgment or order appealed from is entered.       This time

limit is mandatory and jurisdictional.   See Smith v. Smith, 145

F.3d 335, 339 (5th Cir. 1998).   The thirty-day period may be

extended, however, by a timely motion to alter or amend judgment

under Rule 59 or a motion for relief under Rule 60 filed within

ten days of the judgment.   FED. R. APP. P. 4(a)(4)(A).

     Here, Castleberry filed a motion for reconsideration on

February 16, 2006, premised on Rules 59 and 60.    However, because

this motion was not filed within ten days of the district court’s

judgment on January 18, it was untimely under Rule 59(e).       See

FED. R. CIV. P. 59(e) (requiring motions to alter or amend

judgment to be filed within ten days of the judgment).

Similarly, treating Castleberry’s motion for reconsideration as a

motion under Rule 60 affords him no relief, since a Rule 60

motion must also be filed within ten days of the judgment in

order to extend the time to appeal.   See FED. R. APP. P.



                                 4
4(a)(4)(A)(vi).   Therefore, Castleberry’s time to appeal the

January 18 order and judgment was not extended, and his appeal on

March 16, 2006, was untimely as to those actions by the district

court.1

     Castleberry’s appeal was timely, however, with respect to

the district court’s order of February 17 denying Castleberry’s

motion for reconsideration, and the court will now consider the

merits of Castleberry’s arguments.

                         III.   DISCUSSION

A.   Rule 59

     Castleberry’s motion for reconsideration was premised, in

part, on Rule 59 of the Federal Rules of Civil Procedure, which

permits a party to file a motion to alter or amend a judgment.       A

party has ten days from the entry of judgment to file post-trial

motions under Rule 59.   FED. R. CIV. P. 59(e); U.S. Leather, Inc.

v. H&W P’ship, 60 F.3d 222, 225 (5th Cir. 1995).    This ten-day

period is jurisdictional and may not be extended by agreement of

the parties or a rule of the district court.   U.S. Leather, 60

F.3d at 225.   Here, Castleberry filed his motion for

reconsideration under Rule 59 on February 16, 2006, twenty-nine

days after the district court’s entry of judgment and well


     1
        This untimeliness precludes us from considering
Castleberry’s arguments that the district court’s January 6 order
(which formed the basis of the January 18 order) was unwarranted
and that the order did not give him a sufficient amount of time
to respond.

                                 5
outside the ten-day period specified in Rule 59.     Therefore, the

district court lacked jurisdiction to grant relief under Rule 59

and did not err in denying Castleberry the relief he requested

under Rule 59.   See Vincent v. Consol. Operating Co., 17 F.3d

782, 785 (5th Cir. 1994) (per curiam) (“The district court is

powerless to rule on an untimely Rule 59(e) motion.”).

B.   Rule 60

     Castleberry’s motion for reconsideration also claimed relief

by way of Rule 60 of the Federal Rules of Civil Procedure.     We

review the denial of a motion for relief under Rule 60(b) for an

abuse of discretion.   Patterson v. Mobil Oil Corp., 335 F.3d 476,

486 (5th Cir. 2003).

     1.    Legal Standard

     “The purpose of Rule 60(b) is to balance the principle of

finality of a judgment with the interest of the court in seeing

that justice is done in light of all the facts.”     Hesling v. CSX

Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005).     While this

rule is to be liberally construed to do substantial justice, a

court should not lightly reopen a final judgment.     See Seven

Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981).

Pursuant to Rule 60, a court may relieve a party from a final

judgment for mistake, inadvertence, surprise, or excusable

neglect.   FED. R. CIV. P. 60(b)(1).   Rule 60(b)(6) also permits

relief for “any other reason justifying relief from the operation



                                  6
of the judgment.”   Although Castleberry’s motion for

reconsideration did not specify clauses (1) and (6) of Rule

60(b), these are the only two clauses in Rule 60(b) that possibly

pertain to Castleberry’s arguments.    Therefore, we consider

Castleberry’s arguments under Rule 60(b)(1) and 60(b)(6).

     With respect to Rule 60(b)(1), this court has held that it

is not an abuse of discretion to deny relief when the proffered

justification is the “inadvertent mistake” of counsel.      Edward H.

Bohlin Co. v. Banning Co., 6 F.3d 350, 356-57 (5th Cir. 1993).

Indeed, “[g]ross carelessness, ignorance of the rules, or

ignorance of the law” are insufficient bases for Rule 60(b)(1)

relief.   Id. at 357.   Further, we have stated that it would be an

abuse of discretion for a district court to grant relief on the

sole basis of counsel’s carelessness with or misapprehension of

the laws.   Id.   To the extent the “mistake” is one by the court,

we have held that a plaintiff’s claim of “mere legal error” does

not warrant Rule 60(b)(1) relief.     McMillan v. Mbank Fort Worth,

N.A., 4 F.3d 362, 367 (5th Cir. 1993).      In such a situation, a

plaintiff is to pursue an appeal.     Id.

     Rule 60(b)(6) authorizes relief for any reason other than

those listed in clauses (b)(1) through (b)(5).      U.S. ex rel.

Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir.

2005).    Relief, however, is appropriate only in an “extraordinary

situation” or when “extraordinary circumstances are present.”

Id. (internal citations and quotation marks omitted).     With these

                                  7
standards in mind, we turn to Castleberry’s arguments.

     2.   Analysis

     Castleberry’s main argument on appeal is that the district

court should have applied Rule 6(e) to extend his time for filing

his amended complaint to January 20, 2006.   Rule 6(e) states that

“[w]henever a party must or may act within a prescribed period

after service” and service is made by mailing, “3 days are added

after the period would otherwise expire . . . .”   It is unclear

whether Castleberry believes that three days should be added

because the district court’s January 6 order was mailed to him or

because he mailed his amended complaint to the district court.

Either argument misconstrues the effect of Rule 6(e) in these

circumstances.

     First, the fact that the district court’s January 6 order

was mailed to Castleberry does not entitle him to an extra three

days to respond.   A distinction must be made between orders that

require actions within a certain time after service--for example

“within thirty days after service”--and orders that set specific

deadlines--such as “January 17, 2006.”   In the case of the first

example, three days would be added by Rule 6(e) because action

was required “within a prescribed time after service.”   In the

second example, three days are not added because there is a set

deadline with a specific date.   Here, Castleberry’s amended

complaint was not due a period of days “after service” of the



                                 8
district court’s order.    Rather, the amended complaint was

explicitly due on January 17, 2006.       Consequently, Rule 6(e) does

not make Castleberry’s amended complaint timely.

     Second, to the extent that Castleberry contends that Rule

6(e) applies because he mailed his amended complaint to the

court, his argument is also without merit.       The specific wording

of the January 6 order required Castleberry to file his complaint

by January 17--not mail it.    Rule 5(e) of the Federal Rules of

Civil Procedure defines “filing” as actually filing the papers

with the clerk of the court.    Castleberry failed to file his

amended complaint with the clerk by January 17, 2006, and, as a

result, did not meet the district court’s deadline.

     Given the requirements for relief under Rule 60(b)(1) and

(b)(6), Castleberry’s misunderstanding of the effect of Rule 6(e)

does not provide a sufficient basis for relief.       See Midwest

Employers Cas. Co. v. Williams, 161 F.3d 877, 880 (5th Cir. 1998)

(stating counsel’s confusion regarding Rule 6(e) did not

constitute “excusable neglect”).       Although Castleberry is

proceeding pro se, the district court’s order could not have been

clearer as to when he was required to file his amended complaint

with the clerk’s office.    Consequently, the district court did

not abuse its discretion in denying Castleberry’s motion for

reconsideration on that ground.

     Castleberry’s other argument is essentially an appeal to the



                                   9
court’s sense of justice based on Castleberry’s good faith in

attempting to comply with the district court’s order.   This is

insufficient to entitle Castleberry to Rule 60(b) relief.   As a

result, we hold that the district court did not abuse its

discretion in denying Castleberry’s motion for reconsideration.

                         IV.   CONCLUSION

     For the reasons above, we affirm the judgment of the

district court.

     AFFIRMED.




                                10
