                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3404
                                  ___________

Claude Bennett,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Dr Pepper/Seven Up, Inc.,              *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: April 19, 2002

                                 Filed: July 2, 2002
                                  ___________

Before BOWMAN, LAY, and RILEY, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

     Claude Bennett appeals from the order of the District Court1 denying his
motion, filed under Federal Rule of Civil Procedure Rule 60(b), for relief from the
summary judgment entered by the court in favor of Dr Pepper/Seven Up, Inc.
(DPSU), on Bennett's claims of racial discrimination in employment. We affirm.




      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
       Bennett, acting pro se, filed his employment discrimination complaint in April
2000. After discovery had closed, DPSU filed a motion for summary judgment on
June 1, 2001, the last date for filing dispositive motions according to the District
Court's Case Management Order. Under local rule, Bennett's response was to be filed
on or before June 26, 2001. On June 21, 2001, counsel for DPSU sent Bennett a
letter asking if he would agree to a continuance of the trial date, then set for
August 13, 2001. On July 1, Bennett telephoned opposing counsel and left a message
that he would be meeting with his attorney on some matters within the week and
would have some response to the request regarding the continuance after that. On
July 5, Bennett telephoned DPSU's counsel again, leaving word that he had consulted
his attorney and would not agree to a continuance. DPSU filed a motion for
continuance that same day, noting that its motion for summary judgment had been
filed on June 20 and that Bennett had not responded.

        On July 9, 2001, Bennett met with his present attorney, who told Bennett he
should have responded to the motion for summary judgment. Not until July 16 did
Bennett call the chambers of the judge to ask for an extension of time to file a
response; neither he nor the attorney filed a written motion requesting an extension.
The District Court granted DPSU's summary judgment motion on July 17, 2001, and
dismissed Bennett's case. Bennett formally retained counsel on August 3, 2001, who
filed a motion on August 6 under Federal Rule of Civil Procedure 60(b) seeking relief
from the judgment. The court denied the motion and Bennett appeals. We will
reverse a district court's ruling on a Rule 60(b) motion only if there was a clear abuse
of the court's broad discretion. Roark v. City of Hazen, Ark., 189 F.3d 758, 761 (8th
Cir. 1999).

      Bennett argues that relief from judgment is warranted here for "excusable
neglect," noting his status as a pro se litigant and the District Court's failure to tell
him the date on which his summary judgment response was due. See Fed. R. Civ. P.
60(b)(1). The District Court found that Bennett was represented by counsel through

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the proceedings on his charges of discrimination before the Equal Employment
Opportunity Commission, just after which his attorney died. Bennett then sought and
received the advice of his former counsel's partner, for which he paid on an hourly
basis. Acting pro se, Bennett filed his complaint, a motion to amend, and an amended
complaint; actively participated in discovery and mediation; and played a role in
pretrial scheduling activities. Further, Bennett admitted, he consulted several
attorneys while DPSU's motion for summary judgment was pending before the
District Court. Bennett gave no indication to the court that, as an educated
individual, he could not read and understand the rules governing motions for
summary judgment and educate himself as to his obligations once DPSU had filed
such a motion. In short, the District Court determined that this was not the
exceptional case requiring the extraordinary relief from judgment available under
Rule 60(b)(1). See Schwieger v. Farm Bureau Ins. Co., 207 F.3d 480, 487 (8th Cir.
2000). As we explain below, this conclusion was not an abuse of the court's
discretion.

       We first reject Bennett's contention that the District Court was—or should have
been—responsible for advising him, as a pro se litigant, of the date by which he was
to respond to DPSU's motion for summary judgment. Our Circuit does not have a
requirement that such affirmative notice be given. See Beck v. Skon, 253 F.3d 330,
333 (8th Cir. 2001). And Bennett is not the sort of litigant for whom we might be
inclined to create such a rule. He is educated and reasonably articulate and had
demonstrated to the District Court his ability as a pro se litigant. He was not
incarcerated or otherwise unable to avail himself of the information he needed. And
although he did not have formally-retained counsel when DPSU filed its summary
judgment motion, he had sought and received the advice of counsel and was not
prevented by indigence from hiring an attorney.

       Bennett's "pro se status did not entitle him to disregard the Federal Rules of
Civil Procedure," even without affirmative notice of the application of the rules to his

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case. Carman v. Treat, 7 F.3d 1379, 1381 (8th Cir. 1993). The local rule requiring
a response to a summary judgment motion within twenty days was clear. See
Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 404 (8th Cir. 2000) (noting that where
the language of a rule is unambiguous, a party's failure to follow it will not constitute
excusable neglect under Rule 60(b)). Bennett had followed the rules as a pro se
litigant up until the time DPSU's motion was filed and will not now be heard to argue
that he should be excused from adherence to these rules because he chose to proceed
pro se.

       Bennett also argues that he is entitled to relief from the decision granting
summary judgment because he "established 'reason' under Rule 60(b)(6)." Br. for
Appellant at 1; see Fed. R. Civ. P. 60(b)(6) ("[T]he court may relieve a party . . . from
a final judgment . . . for . . . (6) any other reason justifying relief from the operation
of the judgment."). According to Bennett, his failure to file a response resulted in a
judgment rendered on an incomplete record, that is, a judgment that was not on the
merits. This, he contends, is a "reason" under Rule 60(b)(6) for relief from the
judgment, and the District Court abused its discretion by refusing to grant it. We
disagree.

       The obligation to point out genuine issues of material fact that would preclude
judgment as a matter of law for DPSU lay with Bennett, not with DPSU. See Fed. R.
Civ. P. 56(e) ("When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party's pleading, but the adverse party's response, by affidavits
or as otherwise provided in this rule, must set forth specific facts showing that there
is a genuine issue for trial."). "Like any other civil litigant, [Bennett] was required
to respond to [DPSU's] motion[] with specific factual support for his claims to avoid
summary judgment." Beck, 253 F.3d at 333. The court was not bound, by rule or
otherwise, to search the record for genuine issues of fact, when Bennett failed to bring
such issues to the attention of the court in a timely-filed response to the motion for

                                           -4-
summary judgment. See Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir.
1996) (recognizing that the district court has no"affirmative obligation to plumb the
record in order to find a genuine issue of material fact").

        In addition, we note that the court's order granting summary judgment to DPSU
was not made to punish or to sanction Bennett for his failure to file a response to the
motion. It was not a default judgment. It is clear from the court's thorough opinion
that it reached its summary judgment decision on the merits of Bennett's claims as set
forth in his complaint. Cf. Canada v. Union Elec. Co., 135 F.3d 1211, 1213 (8th Cir.
1997) ("When a motion would be dispositive of the merits of the cause if granted,
courts should normally not treat a failure to respond to the motion as conclusive.").
In these circumstances, we cannot say the District Court abused its discretion in
concluding that Bennett has not demonstrated grounds for relief under Rule 60(b)(6).

      In sum, the District Court's decision to deny Bennett post-judgment relief was
not "based on an erroneous view of the law or a clearly erroneous assessment of the
evidence." Richards v. Aramark Servs., Inc., 108 F.3d 925, 927 (8th Cir. 1997).
Consequently, we hold that the District Court did not abuse its discretion in denying
Bennett's motion for relief under Rule 60(b). The District Court is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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