     Case: 14-31185      Document: 00513317466         Page: 1    Date Filed: 12/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 14-31185                                   FILED
                                  Summary Calendar                         December 22, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
Cons w/ 15-30374

ANDERSON WALLACE, JR.,

              Plaintiff - Appellant

v.

MAGNOLIA FAMILY SERVICES, L.L.C.,

              Defendant - Appellee




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-4703


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Anderson Wallace, Jr., appeals an order denying his motion to amend
his complaint, an order entering summary judgment for the defendant
Magnolia Family Services, L.L.C., and an order denying Wallace’s Rule 60
motion. We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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               FACTUAL AND PROCEDURAL BACKGROUND
       Wallace sued his former employer, Magnolia Family Services, bringing
several claims. Magnolia filed a motion to dismiss for failure to state a claim.
The parties consented to proceed before a magistrate judge. The magistrate
judge denied Magnolia’s motion to dismiss a Title VII disparate impact race
discrimination claim under 42 U.S.C. § 2000e-2, but dismissed with prejudice
an Americans with Disabilities Act claim under 42 U.S.C. § 12112. Finally, a
claim under Louisiana Civil Code Article 2315 was conditionally dismissed –
Wallace had one month to amend his complaint before it would be dismissed.
       Wallace did not timely amend his complaint to state a claim under
Article 2315. Accordingly, on January 7, 2014, the magistrate judge entered
an order dismissing the Article 2315 claim with prejudice for Wallace’s failure
to comply with the court’s order. About six months later, Wallace filed a
deficient motion to reinstate his Article 2315 claim. A few weeks later, he
moved to withdraw that motion. The court granted the motion to withdraw.
Then, about two months after the pleading deadline had passed, Wallace again
moved for leave of court to reinstate his Article 2315 claim. On October 3,
2014, the court denied his motion because Wallace had missed the pleading
deadline and had shown no good cause under Federal Rule of Civil Procedure
16.   Wallace filed a notice of appeal regarding this specific order on October
15, 2014.
       On December 29, 2014, the magistrate judge granted Magnolia’s motion
for summary judgment on the Title VII disparate impact claim. Wallace’s
motion for reconsideration was denied. On January 23, 2015, Wallace moved
for relief from judgment under Rule 60. That motion was denied on March 24.
Wallace then filed two notices of appeal on April 20. In the first, he appealed
the court’s order on summary judgment and the corresponding judgment. In
the second, he appealed the court’s denial of his Rule 60 motion.
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                          No. 14-31185 c/w 15-30374
                                 DISCUSSION
      We first analyze which orders are properly before us.             We have
jurisdiction only over appeals from final decisions under 28 U.S.C. § 1291,
decisions deemed final pursuant to Federal Rule of Civil Procedure 54(b), and
interlocutory decisions under 28 U.S.C. § 1292. See Askanase v. LivingWell,
Inc., 981 F.2d 807, 809–10 (5th Cir. 1993).
      Wallace’s appeal of the order denying his motion to reinstate his Article
2315 claim was not an appeal from a final order because that order did not end
“litigation on the merits and leave[] nothing for the court to do but execute the
judgment.” Id. at 810. It was also not an interlocutory order under Section
1292 or properly certified under Rule 54(b). Accordingly, we did not have
jurisdiction to review that order at the time it was appealed.
      Nonetheless, “[a]n appeal from a final judgment sufficiently preserves
all prior orders intertwined with the final judgment even when those prior
orders are not specifically delineated in the notice of appeal.” Armour v.
Knowles, 512 F.3d 147, 156 (5th Cir. 2007) (quotation marks omitted). Wallace
timely appealed the final judgment in this case because, first, his Rule 60
motion was filed within 28 days after the summary judgment, and second, his
notice of appeal was filed within 30 days of the denial of the Rule 60 motion.
See FED. R. APP. P. 4(a)(1)(A), (a)(4)(A)(vi). The whole case is before us.
      Because we have jurisdiction over the entire appeal, we now turn to
whether the magistrate judge erred in denying Wallace’s motion for leave to
reinstate his Article 2315 claim. Wallace’s motion was essentially a motion to
amend, the denial of which we review for abuse of discretion.           Fahim v.
Marriott Hotel Servs., Inc., 551 F.3d 344, 347 (5th Cir. 2008). Wallace filed this
motion over two months after the pleading deadline had passed. He showed
no good cause for this delay. He complains about the scheduling order that
established this pleading deadline, which was entered after the transfer of the
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                          No. 14-31185 c/w 15-30374
case from one magistrate judge to another. That complaint is futile because
the magistrate judge “has broad discretion in controlling [his] own docket. This
includes the ambit of scheduling orders . . . .” Edwards v. Cass Cnty., 919 F.2d
273, 275 (5th Cir. 1990). Wallace had an opportunity to amend his complaint
before it was dismissed. Additionally, before the pleading deadline, Wallace
had moved to reinstate his Article 2315 claim but chose to withdraw that
deficient motion rather than correct it. The magistrate judge did not abuse his
discretion when the motion presented late “easily could have been presented
at an earlier date.” Id. at 275–76.
      Wallace also complains that summary judgment should not have been
granted on his Title VII disparate impact claim.       We review a summary
judgment order de novo. Munoz v. Orr, 200 F.3d 291, 300 (5th Cir. 2000).
Wallace has properly raised on appeal only the court’s determination that his
failure to provide statistical evidence was fatal to his claim.      Statistical
evidence is ordinarily required in disparate impact cases. See id. at 300.
Wallace did not show a prima facie case of disparate impact, and thus,
summary judgment was proper.
      Wallace also appeals the magistrate judge’s denial of his motion
requesting relief under Federal Rule of Civil Procedure 60(b). We liberally
construe pro se appellants’ briefs. Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir.
2008). Although Wallace’s brief could be clearer, he addresses the substantive
holdings in the magistrate judge’s order denying his Rule 60 motion.
      We review the denial of a Rule 60 motion under a deferential abuse of
discretion standard. Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir.
2005). We overturn a district court’s denial of relief under Rule 60 if the
decision was based “on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Id.


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      Wallace first claimed that the court made a factual mistake under Rule
60(b)(1) in requiring him to provide statistical evidence to support his Title VII
disparate impact claim. Wallace relied on Garcia v. Woman’s Hospital of
Texas, 97 F.3d 810 (5th Cir. 1996). In that case, we suggested statistical
evidence would not be required to show a prima facie case of disparate impact
if the plaintiff made an alternative evidentiary showing that a policy would
disparately impact all members of a protected group. See id. at 813. In
rejecting Wallace’s argument, the court reasoned Wallace could not make the
alternative evidentiary showing suggested in Garcia. The court did not abuse
its discretion because the court properly interpreted and applied Garcia.
      Wallace next argued that, under Rule 60(b)(3) and (b)(4), he was entitled
to relief from the judgment because his attorney signed the consent form to
proceed before a magistrate on his behalf. The court rejected this ground
because his attorney’s consent on his behalf was effective. Further, Wallace’s
behavior demonstrated implied consent. We have recognized consent from a
party’s attorney of record as effective. See United States v. Muhammad, 165
F.3d 327, 331 (5th Cir. 1999). Consent can also be implied by a party’s conduct.
See Roell v. Withrow, 538 U.S. 580, 590 (2003). Wallace filed substantive
motions before the magistrate judge and never objected to proceeding before
the magistrate judge until about a year into this lawsuit. The court did not
abuse its discretion in denying this ground for relief.
      Regarding Wallace’s miscellaneous claims for relief under Rule 60(b)(6),
the magistrate judge held that some of these claims were raised in his
arguments under Rule 60(b)(3) and (b)(4), and so could not be raised again
under Rule 60(b)(6). See Hess v. Cockrell, 281 F.3d 212, 215 (5th Cir. 2002).
Wallace’s allegations regarding the magistrate judge’s disposal of Wallace’s
recusal motions were unsupported by any evidence or legal authority. The


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district court did not abuse its discretion in denying Wallace’s claims for relief
under Rule 60(b)(6).
      Finally, we reject Wallace’s arguments on appeal about the performance
of his previous attorneys. See Sanchez v. U.S. Postal Serv., 785 F.2d 1236,
1237 (5th Cir. 1986).
      AFFIRMED.




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