                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 21, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-20529
                         Summary Calendar



HAMED SANGI; STACEY SANGI

          Plaintiffs - Appellants

v.

FAIRBANKS CAPITAL CORP


          Defendant - Appellee



          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                      USDC No. 4:04-CV-4441


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Plaintiffs-appellants Hamed and Stacey Sangi appeal the

district court’s judgment, arguing that the district court erred

by (1) granting defendant-appellee Fairbanks Capital

Corporation’s motion for summary judgment and (2) denying the

Sangis’ motion to set aside judgment and/or motion for new trial

and request for relief from judgment.   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that this opinion should not be published and is not precedent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.
               I. FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiffs-appellants Hamed and Stacey Sangi purchased a

home from defendant-appellant Fairbanks Capital Corp. (“FCC”).

The Sangis allege that three years later they discovered toxic

mold in the residence and that the resulting health problems

forced them to vacate the property.   The Sangis filed suit

against FCC, claiming breach of contract, fraud, and violations

of the Texas Deceptive Trade Practices-Consumer Protection Act

(“DTPA”) and alleging that FCC knowingly and intentionally failed

to disclosed that the residence had unsafe levels of toxic mold

and misrepresented that there were no defects.

     The Sangis conducted no discovery other than initial

disclosures and did not respond to FCC’s discovery requests.    The

Sangis attempt to justify their failure to pursue discovery by

stating that they believed liability was not contested and that

discovery was on hold until after the parties mediated damages.

     FCC filed a no-evidence motion for summary judgment arguing

that all claims were barred by the “as-is” clause in the sales

contract, except to the extent Texas law permitted the Sangis to

recover if they could show that FCC had “actual knowledge” that

the property contained toxic mold and took affirmative steps to

conceal it.1   FCC asserted that the Sangis had no evidence that

     1
       Provisions within the contract gave the Sangis the right
to inspect the property before closing and to terminate the
contract within seven days for any reason. If the Sangis did not
terminate the contract, they were deemed to have accepted the

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FCC had actual knowledge of the evidence of toxic mold at the

time of the sale.

       The Sangis did not respond to FCC’s motion, and pursuant to

the Local Rules for Southern District of Texas, the motion was

submitted to the judge twenty days from filing.    S. DIST. LOCAL R.

7.3.    Although the parties discussed the possibility of an

extension to the response date, the Sangis never filed a motion

for extension of time, a response to the motion, or a notice

stating their opposition to summary judgment.

       The district court granted FCC’s summary judgment motion

noting that the Sangis had no competent summary judgment evidence

before the court and had not raised a genuine issue of material

fact in support of any of the essential elements of their claims.

       The Sangis then filed a motion to set aside and/or motion

for new trial and motion for relief from judgment.    The district

court denied those motions stating the Sangis did not establish a

good reason to grant a new trial and that Rule 60(b) did not

apply to relieve the Sangis from the final judgment.

                        II. SUMMARY JUDGMENT

       We review a district court’s grant of summary judgment de

novo, using the same standards applied by the district court.

Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378,



property in its current condition. In bolded font, underlined,
and in all caps, an addendum to the contract stated that the
property was purchased “AS-IS WHERE-IS AND WITH ALL FAULTS.”

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382 (5th Cir. 2005).   Summary judgment is proper when, viewing

the evidence in the light most favorable to the nonmovant, “there

is no genuine issue of any material fact” and the moving party is

“entitled to judgment as a matter of law.”     Brooks, Tarlton,

Gilbert, Douglas & Kressler v. United States, 832 F.2d 1358, 1364

(5th Cir. 1987); FED. R. CIV. P. 56(c).

     Once the moving party establishes that there is no genuine

issue, the burden shifts to the nonmoving party to produce

evidence of the existence of a genuine issue for trial.     Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).    The nonmoving party

cannot rely only upon allegations, denials in a pleading, or

unsubstantiated assertions that a fact issue exists, but must

“set forth specific facts showing the existence of a ‘genuine’

issue concerning every essential component of its case.”     Morris

v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.

1998).   The district court may not grant a motion for summary

judgment simply because it is unopposed.     Hetzel v. Bethlehem

Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995).

     The Sangis argue that the district court abused its

discretion by not applying the analysis in Johnson v. Pettiford,

442 F.3d 917 (5th Cir. 2006).    In Johnson, we held the district

court abused its discretion by dismissing the pro se litigant’s

petition as moot because he did not oppose respondent’s motion to

dismiss.   442 F.3d at 918-19.   This case differs from Johnson

because the district court did not grant summary judgment merely

                                  4
because the motion was unopposed.    Rather, although it

acknowledged that the motion was unopposed, it granted summary

judgment on the basis that the Sangis had not established a fact

issue on an essential element of their case.    Thus, the district

court properly granted summary judgment.

         III. RULE 60(b) MOTION FOR RELIEF FROM JUDGMENT

     We review a district court’s grant or denial of a Rule 60(b)

motion for relief from judgment for abuse of discretion.     Edwards

v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc).

“Under this standard, the court’s decision need only be

reasonable.”   See Edward H. Bohlin Co. v. Banning Co., 6 F.3d

350, 353 (5th Cir. 1993).   The Sangis argue that relief should be

granted under Rule 60(b)(1) for excusable neglect resulting from

counsel miscommunication, misunderstanding regarding FCC’s

intentions regarding discovery and the motion for summary

judgment, and misunderstanding of the local rules involving

summary judgment procedure.   But the district court did not abuse

its discretion in denying their Rule 60(b) motion.    See Edward H.

Bohlin Co., 6 F.3d at 357 (“Gross carelessness, ignorance of the

rules, or ignorance of the law are insufficient bases for

60(b)(1) relief.”).

     The Sangis also contend that the district court should have

granted the motion to reconsider based on newly discovered

evidence.   Rule 60(b)(2) permits relief for evidence “which by



                                 5
due diligence could not have been discovered in time to move for

a new trial under Rule 59(b)”).    The district court did not abuse

its discretion in denying Rule 60(b)(2) relief because the record

indicates that the Sangis did not pursue discovery with due

diligence.2   See New Hampshire Ins. Co. v. Martech USA, Inc., 993

F.2d 1195, 1201 (5th Cir. 1993) (holding a movant must

demonstrate that it exercised due diligence in obtaining the

information to succeed on a motion brought under 60(b)(2)).

     Moreover, the Sangis have failed to show that the district

court abused its discretion in denying their Rule 60(b)(3) motion

for relief from judgment.   See Hesling v. CSX Transp., Inc., 396

F.3d 632, 638 (5th Cir. 2005).    The Sangis did not provide the

district court with clear and convincing evidence that FCC

engaged in fraud or other misconduct or that any misconduct

prevented them from fully and fairly presenting their case.    See

Gov’t Fin. Servs. v. Peyton Place, Inc., 62 F.3d 767, 772 (5th

Cir. 1995).   Rather the Sangis offered only allegations of fraud

and misconduct.   Nor have the Sangis shown exceptional

circumstances to merit relief under Rule 60(b)(6).    See Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,

393 (1993) (holding that Rule 60(b)(6) only applies in

     2
       The Sangis also appeal the denial of their motion for new
trial on the basis of newly discovered evidence, but their
failure to pursue discovery with due diligence prevents them from
prevailing on this claim as well. See Nat’l Labor Relations Bd.
v. Jacob E. Decker and Sons, 569 F.2d 357, 363-64 (5th Cir.
1978).

                                  6
“extraordinary circumstances suggesting that the party is

faultless in the delay.”).

                         IV. CONCLUSION

     For the foregoing reasons, the district court’s judgment is

AFFIRMED.




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