     Case: 12-30749       Document: 00512215490         Page: 1     Date Filed: 04/22/2013




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

                                                                            FILED
                                                                           April 22, 2013

                                     No. 12-30749                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BEVERLY A. BORNE,

                                                  Plaintiff–Appellant,
v.

RIVER PARISHES HOSPITAL, L.L.C.,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:10-CV-2104


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Beverly Borne (Borne) appeals the district court’s denial of her motions for
relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. We affirm.
                                              I
       This appeal stems from Borne’s attempt to revive employment
discrimination claims that the district court dismissed as barred by the statute


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30749

of limitations. Borne alleges that the appellee, River Parishes Hospital, L.L.C.
(River Parishes), subjected her to a pattern of discrimination in hiring and
promotion practices during her fifteen years of employment. After pursuing her
claims      through      the   Equal    Employment      Opportunity    Commission’s
administrative process, Borne received a Notice of Right to Sue mailed on April
27, 2010, giving her 90 days from receipt to file a lawsuit against River
Parishes.1 On July 27, 2010, Borne filed a complaint in the district court
asserting various employment discrimination claims against River Parishes.
Borne then had 120 days to provide River Parishes with service of process,
during which time the 90-day limitations period was tolled.2
      At the time she filed suit, Borne did not provide a summons for issuance
by the clerk for service on River Parishes. In an internal docket entry made on
the following day and labeled “Court only,” the district court clerk noted,
“Summons not provided by atty, do not prepare sms.” No further activity
occurred in the case until the district court issued an order over two months
later requiring Borne to appear and show cause why she had not served the
defendants, to which Borne did not respond. The court ordered Borne to appear
twice more without a response until Borne finally served River Parishes and
notified the court on January 11, 2011, some 168 days after filing her original
complaint.
      River Parishes immediately moved to dismiss Borne’s complaint on several
grounds, including that the statute of limitations had expired before Borne had
served process. In response, Borne asserted that the district court clerk had
refused to issue a summons until her attorney, Peggy M. H. Robinson
(Robinson), paid an outstanding $15 administrative fine from an unrelated


      1
          42 U.S.C § 2000e-5(f)(1).
      2
          See FED. R. CIV. P. 4(m).

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                                           No. 12-30749

matter, effectively preventing Borne from serving River Parishes within the 120-
day window. As a result, Borne argued, the limitations period should have been
equitably tolled. The court found no basis for equitable tolling and dismissed all
of Borne’s claims as barred by the 90-day limitations period.3 One week after the
judgment, Borne filed a motion for relief from judgment under Rule 60(b), but
the district court found the motion deficient and ordered it stricken when Borne
failed to correct the deficiency. Borne did not appeal the judgment or take any
other action for fourteen months.
      On April 30, 2012, Borne filed a new Rule 60(b) motion with the district
court in an attempt to revive her lawsuit, reasserting that the delay in serving
process on River Parishes was the result of the clerk’s refusal to issue a
summons. On May 29, 2012, Borne filed a second Rule 60(b) motion that
included four exhibits as evidence in support of her claim: a document
purporting to be a record of the clerk’s refusal to issue a summons; a letter from
the clerk’s office to Robinson dated September 27, 2010, advising Robinson that
she “ha[d] been suspended from practice in [the district court] for failure to pay
$15.00 fee;” and affidavits by Borne and Robinson’s legal investigator, Emmett
Spooner (Spooner).          In his affidavit, Spooner asserted that sometime in
September 2010, he attempted to obtain a summons, and the district court clerk
refused to process any documents until Robinson paid her outstanding
administrative fee. In her own affidavit, Borne attested that the clerk had sent
Robinson letters “about not allowing [Robinson] to proceed with [Borne’s] law
suit until the unfinished business was taken care of” and that Robinson had
“sent her law clerk to file[] and process (3) sets of Civil Summons,” which the
clerk refused to process “because of the conflict the [clerk] had with [Robinson].”




      3
          See 42 U.S.C. § 2000e-5(f)(1).

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       On June 14, 2012, the district court denied both motions, holding that
“[a]ll of the factual and legal arguments raised by [Borne] in her two motions . . .
were considered and rejected by the [district court] when it granted [River
Parishes’] motion to dismiss.” This appeal followed.
                                                II
       Rule 60(b) grants a district court the power to relieve a party from a final
judgment when warranted.4 “[T]he rule seeks to strike a delicate balance
between two countervailing impulses: the desire to preserve the finality of
judgments and the ‘incessant command of the court’s conscience that justice be
done in light of all the facts.’”5 However, a motion under Rule 60(b) is not a
substitute for a timely appeal, and it is an improper vehicle for challenging
mistakes of law or reasserting arguments on the merits of a claim.6
       We generally review a denial of a Rule 60(b) motion for abuse of
discretion.7 Although Rule 60(b) “should be liberally construed in order to do
substantial justice,” the decision to grant relief is left to the sound discretion of
the district court.8 “It is not enough that the granting of relief might have been


       4
        FED. R. CIV. P. 60(b); see Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. Unit
A 1981) (“The purpose of Rule 60(b) is to delineate the circumstances under which relief may
be obtained from the operation of final judgments, whether they are entered by default or
otherwise.” (citation omitted)).
       5
         Seven Elves, 635 F.2d at 401 (quoting Bankers Mortg. Co. v. United States, 423 F.2d
73, 77 (5th Cir. 1970)).
       6
         See Pryor v. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir. 1985) (“Rule 60(b) may not
be used to provide an avenue for challenges of mistakes of law that should ordinarily be raised
by timely appeal.” (citing Travelers Indem. Co. v. United States (In re Ta Chi Navigation
(Panama) Corp.), 728 F.2d 699, 703 (5th Cir. 1984))); cf. Inter Fin. Exch., S.A. v. Bartlett & Co.,
Grain, 659 F.2d 1320, 1321 (5th Cir. Unit A 1981) (“[Rule 60(b)(6)] is not a substitute for a
motion for a new trial, particularly when it is grounded upon evidence which could have been
discovered and timely presented through the exercise of due diligence.”).
       7
           Warfield v. Byron, 436 F.3d 551, 555 (5th Cir. 2006).
       8
           Seven Elves, 635 F.2d at 401, 402.

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                                         No. 12-30749

permissible, or even warranted—denial must have been so unwarranted as to
constitute an abuse of discretion.”9
                                                A
       Borne first argues that she is entitled to relief under Rule 60(b)(4) because
the judgment dismissing her lawsuit is void. Unlike other Rule 60(b) provisions,
relief under Rule 60(b)(4) is not discretionary; if the judgment is void, the district
court must necessarily set the judgment aside.10 As a result, we review a denial
of a 60(b)(4) motion de novo.11 “[A] void judgment is one which, from its
inception, was a complete nullity and without legal effect.”12 In general, a
judgment is void if the rendering court lacked subject matter or personal
jurisdiction, or “acted in a manner inconsistent with due process.”13
       Borne argues that the district court acted in a manner inconsistent with
due process by refusing to issue a summons until Robinson paid the
administrative fee and by failing to notify Borne directly that Robinson was
suspended from practicing in that court. These arguments are unpersuasive.
       First, Borne has failed to demonstrate that either she or Robinson was
actually prevented from serving process on River Parishes. Although Borne
repeatedly alleges that Robinson was prohibited from doing so by the district
court clerk, there is no evidence that Robinson’s outstanding administrative fee
prevented Borne from serving River Parishes. The docket notation that Borne

       9
         Williams v. Brown & Root, Inc., 828 F.2d 325, 328 (5th Cir. 1987) (quoting Seven
Elves, 635 F.2d at 402) (internal quotation marks omitted).
       10
            Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998).
       11
         Callon Petroleum Co. v. Frontier Ins. Co., 351 F3d 204, 208 (5th Cir. 2003) (citing
Carter, 136 F.3d at 1005).
       12
         Carter, 136 F.3d at 1006 (quoting United States v. Zima, 766 F.2d 1153, 1159 (7th
Cir. 1985)) (internal quotation marks omitted).
       13
         Id. (quoting N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996)) (internal
quotation marks omitted).

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                                         No. 12-30749

relies on appears to indicate that the clerk did not issue a summons because
Robinson failed to provide one as required, not because of any outstanding
administrative matter.14 In the original dismissal of Borne’s claims, the district
court noted that “this docket entry is not an order . . . that precluded service and
summons on [River Parishes], and the Clerk of Court does not withhold
summons simply because a counsel for a plaintiff is suspended from practicing
. . . on an administrative technicality.” Nor is there any evidence of a connection
between Robinson’s ultimate payment of the administrative fee and the issuance
of the summons. Furthermore, Borne fails to explain why she apparently took
no action until almost two months after the 120-day service period had passed.
Spooner’s affidavit indicates that Robinson was aware of the outstanding
administrative matter no later than September 2010, more than a month before
the deadline for service of process.             Robinson had ample time to pay the
administrative fee, and Borne offers no explanation for her failure to do so. Nor
did Borne petition the district court for an extension or take any other action in
response to the alleged barrier.
       Second, we reject Borne’s claim that the district court’s failure to inform
her directly of Robinson’s outstanding administrative fee is inconsistent with
due process. In civil cases, due process is limited essentially to the right to
“proper notice and service of process and a court of competent jurisdiction.”15
“[P]rocedural irregularities during the course of a civil case, even serious ones,
will not subject the judgment to collateral attack.”16 Accordingly, we have held


       14
        See FED. R. CIV. P. 4(b) (“On or after filing the complaint, the plaintiff may present
a summons to the clerk for signature and seal. If the summons is properly completed, the
clerk must sign, seal, and issue it to the plaintiff for service on the defendant.”).
       15
            Callon Petroleum, 351 F.3d at 210 (citing N.Y. Life, 84 F.3d at 143).
       16
         N.Y. Life, 84 F.3d at 143 (quoting Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th
Cir. 1982)) (internal quotation marks omitted).

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                                         No. 12-30749

that relief under Rule 60(b)(4) is warranted only in very limited circumstances,
such as when a district court grants summary judgment without providing
notice of the proceeding or filings to the defendant.17
       The two cases upon which Borne relies are unpersuasive. In Chef Menteur
Land Co. v. Sandrock,18 a Louisiana Court of Appeal held that, when a party’s
lawyer attempts to withdraw, due process requires the trial court either to
provide notice of the trial setting to the party directly or to confirm with the
withdrawing attorney that the represented party has been notified in writing of
the setting.19 In Willis v. Newsome,20 the U.S. Court of Appeals for the Eleventh
Circuit remanded an apparently untimely appeal to the district court to
determine whether the petitioner had relied in good faith on the clerk’s
erroneous representation that the timeliness of the appeal would be based on the
postmark date.21 Neither case stands for the proposition that a district court is
responsible for directly notifying a represented party of her attorney’s
administrative status. Furthermore, whatever their merits, these two cases are
inapposite. Neither set of facts is analogous to the present case, and neither case
arose in the context of Rule 60(b).22
       Nor do we find any merit in Borne’s assertion that she was “effectively
unrepresented” due to Robinson’s alleged inability to practice before the district
court. To the contrary, the record demonstrates that Borne was at all times

       17
            Id.
       18
            11-0497 (La. App. 4 Cir. 10/19/11); 78 So. 3d 146.
       19
            Chef Menteur at p. 9; 78 So. 3d at 151.
       20
            747 F.2d 605 (11th Cir. 1984) (per curiam).
       21
            Newsome, 747 F.2d at 607.
       22
          Cf. Pryor v. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir. 1985) (“[O]ur review of
denial of Rule 60(b) relief [must] be meaningfully narrower than . . . our review on direct
appeal of the underlying order from which relief was sought by the Rule 60(b) motion.”).

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                                         No. 12-30749

represented by Robinson and continues to be represented by her in this appeal.
Robinson had actual notice of the existence of the outstanding fee well before the
time to serve River Parishes expired. That she chose neither to correct the
problem herself nor to help her client mitigate its effects may have been a
dereliction of her obligations as a lawyer, but it was not a due process violation
by the district court.
       In short, neither the court’s alleged refusal to issue service of process nor
its failure to advise Borne that her suit was in jeopardy is inconsistent with due
process. Accordingly, we find no merit in Borne’s argument that the judgment
dismissing her discrimination suit is void, and we affirm the district court’s
denial of her motion for relief under Rule 60(b)(4).
                                                B
       Borne also argues that she is entitled to relief under Rule 60(b)(6). Rule
60(b)(6) permits a court to grant relief from a judgment when justified by
circumstances not addressed by the other five provisions of Rule 60(b).23 The
provision is “a grand reservoir of equitable power to do justice in a particular
case.”24 However, the court’s discretion under this provision is bound by the
purpose of the rule generally and is appropriate only in “unique or unusual
circumstances.”25 Accordingly, relief is not warranted for a party’s deliberate



       23
         See Gulf Coast Bldg. & Supply Co. v. Int’l Bhd. of Elec. Workers, Local No. 480, 460
F.2d 105, 108 (5th Cir. 1972) (“Where either Clauses (b) (1), (2), (3), (4), or (5) provide coverage
for the movant’s claim, relief may not be obtained pursuant to Clause (b) (6).” (citing 7
MOORE’S FEDERAL PRACTICE ¶ 60.27[1] (2d ed. 1961))).
       24
        Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A 1981) (quoting Menier v.
United States, 405 F.2d 245, 248 (5th Cir. 1968)).
       25
          Williams v. Brown & Root, Inc., 828 F.2d 325, 329 (5th Cir. 1987); see also Batts v.
Tow-Motor Forklift Co., 66 F.3d 743, 747-48 (5th Cir. 1995) (noting that the availability of
relief under Rule 60(b)(6) is “narrowly circumscribed” and that relief “will be granted only if
extraordinary circumstances are present” (quoting Bailey v. Ryan Stevedoring Co., 894 F.2d
157, 160 (5th Cir. 1990)) (internal quotation marks omitted)).

                                                 8
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                                        No. 12-30749

choice not to pursue claims or rectify errors in a timely manner.26 “[A] Rule 60(b)
motion may not be used as a substitute for timely appeal.”27
       We have articulated several factors that should guide the district court’s
consideration of a Rule 60(b) motion:
       (1) That final judgments should not lightly be disturbed; (2) that the
       Rule 60(b) motion is not to be used as a substitute for appeal;
       (3) that the rule should be liberally construed in order to achieve
       substantial justice; (4) whether the motion was made within a
       reasonable time; (5) whether if the judgment was a default or a
       dismissal in which there was no consideration of the merits the
       interest in deciding cases on the merits outweighs, in the particular
       case, the interest in the finality of judgments, and there is merit in
       the movant’s claim or defense; (6) whether if the judgment was
       rendered after a trial on the merits the movant had a fair
       opportunity to present his claim or defense; (7) whether there are
       intervening equities that would make it inequitable to grant relief;
       and (8) any other factors relevant to the justice of the judgment
       under attack.28
Individually and collectively, these factors weigh against Borne’s motion. Borne
was not subject to a default judgment, and she had ample opportunity to argue
against dismissal before the district court. She chose not to appeal the dismissal
directly but instead waited over a year to attack the judgment collaterally. No
intervening equities weigh in her favor, and the substantive merit of her
argument is dubious. Not even the most liberal construction of Rule 60(b) would
counsel in favor of relief.




       26
            Ackerman v. United States, 340 U.S. 193, 198-200 (1950).
       27
          Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1203 (5th Cir. 1993) (per curiam)
(collecting cases).
       28
         Seven Elves, 635 F.2d at 402 (citing United States v. Gould, 301 F.2d 353, 355-56 (5th
Cir. 1962)).

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                                       No. 12-30749

      Borne’s assertion that our decision in Seven Elves, Inc. v. Eskenazi29
requires the district court to hold an evidentiary hearing before ruling on a Rule
60(b) motion is simply wrong. Our opinion in that case did not address the
evidentiary requirements of a court’s consideration of a Rule 60(b)(6) motion. In
Seven Elves we held that entry of a judgment against two defendants solely on
the basis of their failure to appear presented extraordinary circumstances
justifying relief under Rule 60(b)(6), particularly because neither defendant had
received notice of the trial setting.30            In so holding, we recognized that a
judgment entered at trial but without the presence of the defendants and
without taking any evidence had all of the hallmarks of a default judgment, a
factor that militated in favor of relief.31 Furthermore, the district court in that
case was aware that the attorney representing the defendants was not in contact
with them and was attempting to withdraw.32 The factors justifying relief in
Seven Elves are not present here; Borne’s discrimination suit was not dismissed
without her presence or participation but instead after full briefing by all
parties, and her attorney never attempted to withdraw as counsel or lost contact
with Borne.
      Nor is Borne correct that the district court’s failure to apply the doctrine
of equitable tolling in its original dismissal constitutes “a sufficient
extraordinary circumstance” to warrant relief from that judgment. First, Borne
cites no authority, and we can find none, that the limitations period should be
equitably tolled based on a lawyer’s 168-day neglect of a lawsuit. But more
importantly a Rule 60(b)(6) motion is not the proper vehicle for Borne to pursue


      29
           635 F.2d 396.
      30
           Seven Elves, 635 F.2d at 402-03.
      31
           Id. at 403.
      32
           See id. at 399, 403.

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                                       No. 12-30749

this argument. The district court considered and rejected this argument on its
merits when it dismissed Borne’s claims in 2011, and Borne never appealed that
dismissal. The consequence of her deliberate choice not to pursue an appeal
cannot be avoided by this collateral attack on the judgment.33
                                      *        *        *
       The judgment of the district court is AFFIRMED.




       33
         See Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1203-04 (5th Cir. 1993) (per
curiam) (holding that denial of a Rule 60(b) motion is “particularly appropriate” when
“asserted on virtually identical grounds” as arguments previously rejected by the district court
and raised beyond the time for direct appeal).

                                              11
