                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    May 15, 2006
                         _____________________
                                                            Charles R. Fulbruge III
                             No. 05-20353                           Clerk

                          (Summary Calendar)

                         _____________________

LARRY MARTIN, JR.,

                        Plaintiff - Appellant,

v.

AKZO NOBEL POLYMER CHEMICALS LLC; CHAD ANDERSON; MARTY MARTINEZ;
BILLY RIDDEN; STERLIN BRYANT; JASON RUSSELL; STEVE PATTON; DEBBIE
SULLIVAN,

                        Defendants - Appellees.

               ________________________________________

            Appeal from the United States District Court
                  for the Southern District of Texas
                           No. 4:03-CV-5446
              ________________________________________

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Larry Martin, Jr. appeals from the district

court’s order denying his motion for reconsideration of summary

judgment.   Martin brought suit against his employer Akzo Nobel

Polymer Chemicals, L.L.C. (“Akzo”) for racial discrimination and




     *
       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this opinion should not be published and is not precedent except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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retaliation.1   After the district court narrowed the issues

through dismissal, Akzo filed its motion for summary judgment on

the remaining two claims on November 29.     Martin alleges he filed

his response on December 22; however, the district court has no

record that he did so.    The district court considered only the

parties’ pleadings and Akzo’s motion when it granted summary

judgment in Akzo’s favor.    Martin sought reconsideration of the

judgment under Rule 60(b) of the Federal Rules of Civil

Procedure.

     In his motion for reconsideration, Martin claimed that he

had filed his response by depositing two copies in the district

clerk’s after-hours drop box in time for receipt on December 22,

2004.    He alleged that a Federal Marshal witnessed this deposit.

Yet, under the local rules, Martin’s filing of his response is

considered untimely.    Rule 7 of the Local Rules for the United

States District Courts of the Southern District of Texas states,

in pertinent part: “Opposed motions will be submitted to the

judge twenty days from filing without notice from the clerk and

without appearance from counsel.”     S.D. Tex. R. 7.3.   The rule

continues: “Responses to motions . . . [m]ust be filed by the

     1
       Martin alleged: (1) retaliation in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (2)
discriminatory termination in violation of 42 U.S.C. § 1981; (3)
conspiracy in retaliatory discharge and discrimination under 42
U.S.C. § 1985(3); (4) wrongful discharge and termination under 42
U.S.C. § 2000e-3(a); and (5) retaliatory discharge under the
Texas Labor Code § 21.055. The district court dismissed the
latter three claims, leaving only two claims before it.

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submission day.”   S.D. Tex. R. 7.4.   Akzo filed its motion for

summary judgment on November 29, 2004.    Thus, according to the

local rules, Martin should have filed his response on December

19, 2004.   Martin claimed that Rule 7 conflicts with Federal Rule

of Civil Procedure 6(e), such that the federal rule supersedes

the local rule, extending his deadline to December 22, 2004, and

rendering his response timely.

     Also in his motion for consideration, Martin explained why

the clerk’s office had no record of his filing on December 22,

2004.   After learning that the district court considered summary

judgment without the benefit of Martin’s response, Walter Polk,

Jr., an employee of Martin’s attorney, made inquiries at the

district court’s clerk office.   Two individuals in the clerk’s

office informed Polk that, because it was newly implementing an

electronic filing system, the office had inadvertently shredded

some briefs before scanning them into the system.    Martin alleged

that the clerk’s office accidentally destroyed both copies of his

summary judgment response, justifying relief from the judgment as

a “mistake” under Rule 60(b).

     The district court denied Martin’s motion for

reconsideration on March 23, 2005, and Martin appeals.

Standard of Review

     This court reviews the denial of a motion for relief from

judgment under Rule 60(b) for abuse of discretion.    Am.

Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir.

                                 3
1993); Fed. Sav. & Loan Ins. Corp. v. Kroenke, 858 F.2d 1067,

1069 (5th Cir. 1988).   We review only the denial of Martin’s Rule

60(b) motion, because an appeal from a Rule 60(b) denial does not

require review of the underlying judgment.       See Prior Prods.,

Inc. v. Southwest Wheel-NCL Co., 805 F.2d 543, 545 (5th Cir.

1986).

Discussion

     Martin argues that the district court abused its discretion

in not granting him Rule 60(b) relief because his response was

not timely filed due to mistake, inadvertence, or excusable

neglect “from whatever source.”2       Rule 60(b) gives courts

discretion to reopen judgment based on, inter alia, mistake,

inadvertence, surprise, or excusable neglect.       FED. R.   CIV.   PRO.

60(b)(1).    Although Martin does not admit to having made a

mistake, it is undisputed that Martin submitted his response to

the district court after December 19, 2004.

     Martin maintains that Local Rule 7 conflicts with Rule 6(e)

of the Federal Rules of Civil Procedure and that he in fact

timely submitted his response because the federal rules trump the

     2
       Martin argues directly that he should have been granted
Rule 60(b) relief for the clerk’s office mistake in shredding
both copies of his summary judgment response before scanning the
response into its electronic filing system. Because Martin
concedes he deposited his response in the clerk’s after-hours
drop box three days after the deadline dictated by the scheduling
order and Local Rule 7, we need not reach the question of whether
the clerk’s office’s alleged shredding of Martin’s response
amounts to mistake or inadvertence for purposes of Rule 60(b).


                                   4
local rules, which gave him an additional three days to file his

response.   Rule 6(e) extends deadlines tied to service of process

by mail.    It states, “[w]henever a party must or may act within a

prescribed period after service and service is made under Rule

5(b)(2)(B), (C), or (D), 3 days are added after the prescribed

period would otherwise expire under subdivision (a).”   FED. R.

CIV. P. 6(e).   Because Local Rule 7 requires action within twenty

days of filing, as opposed to service, Rule 6(e) is inapplicable.

See Lauzon v. Strachan Shipping Co., 782 F.2d 1217 (5th Cir.

1985) (holding that Rule 6(e) did not extend the period in which

a workers’ compensation carrier was required to pay a

compensation award under the Longshore and Harbor Workers’

Compensation Act where the Act required payment within ten days

of filing of the order, as opposed to within ten days of service

of notice provided for in the rule).   Rule 6(e) applies to those

obligations triggered by service, not filing.   Contrary to

Martin’s belief, the fact that Akzo served Martin with a copy of

its summary judgment motion by mail does not implicate Rule 6(e),

because Martin’s deadline depended on the date that Akzo filed

its summary judgment motion with the court.

     To the extent that Martin views his error as excusable

neglect under Rule 60(b)(1), he is mistaken.    Martin’s ignorance

of local rules or misconstruction of their applicability does not

constitute excusable neglect under Rule 60(b)(1).    Bohlin Co. v.

Banning Co., 6 F.3d 350, 357 (5th Cir. 1993) (“Gross

                                  5
carelessness, ignorance of the rules, or ignorance of the law are

insufficient bases for 60(b)(1) relief.”).    In addition,

Martin’s misinterpretation of the Rule 6(e) does not constitute

the type of excusable neglect required to reopen a case under

Rule 60(b)(1).     Midwest Employers Casualty Co. v. Williams, 161

F.3d 877 (5th Cir. 1998) (holding that the misinterpretation of

Rule 6(e) did not rise to the level of excusable neglect, where

the plaintiff-appellee believed he had three additional days to

file a motion for a new trial because the court’s judgment was

served by mail).

     Because Martin’s misinterpretation of Local Rule 7 and the

Rule 6(e) of the Federal Rules of Civil Procedure are not

excusable under Rule 60(b), the district court did not abuse its

discretion in denying Martin’s motion for reconsideration of

summary judgment.    We AFFIRM the order of the district court.




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