     Case: 19-11157       Document: 00515395841          Page: 1     Date Filed: 04/27/2020




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

                                                                                 FILED
                                     No. 19-11157                            April 27, 2020
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
DANIEL JAMES CALDWELL,

               Plaintiff - Appellant

v.

PARKER UNIVERSITY,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CV-1617


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Daniel Caldwell appeals the district court’s 1 denial of his second motion
for reconsideration of its judgment dismissing Caldwell’s action against his
former college, Parker University, with prejudice. 2 Caldwell’s motions to file
his brief out of time and to extend time to file a reply brief are GRANTED.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 The parties consented to proceeding before a magistrate judge.
       2 We earlier dismissed the portion of Caldwell’s appeal challenging the district court’s

judgment of dismissal and the denial of Caldwell’s first motion for reconsideration under Rule
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                                       No. 19-11157
       Caldwell’s action brought claims of breach of contract, fraud, and
quantum meruit, in addition to claims for violations of (1) Parker’s right to due
process under the Fifth and Fourteenth Amendments, (2) the Higher
Education Act, (3) the Rehabilitation Act, and (4) the Americans with
Disabilities Act (ADA). Caldwell alleged these violations occurred as a result
of Parker’s expelling him without proper cause and for discriminatory purposes
and later requiring that he pay $6,444 in order to obtain his transcript. In
dismissing these claims, the district court determined that Caldwell had failed
to allege any facts giving rise to state action by Parker, a private university;
that the Higher Education Act did not provide a private right of action because
the Department of Education was charged with comprehensive enforcement of
the Act; that Caldwell’s Rehabilitation Act and ADA claims were barred by
limitations and that Caldwell had failed to state plausible claims under those
statutes in any event; that no contract existed on which to base a breach of
contract or fraudulent breach claim; and that no factual allegations were
included in Caldwell’s complaint to support a quantum meruit claim. After an
initial attempt at securing reconsideration under Rule 59(e), Caldwell filed the
motion for reconsideration at issue here 30 days after the judgment of
dismissal.
       Although Caldwell styled his motion as seeking relief under Rule 59(e),
because the motion was filed more than 28 days after the entry of judgment,
the district court correctly analyzed the motion under Rule 60(b), which
governs when a litigant may obtain relief from a final judgment. Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012). In doing so, the


59(e). See Order, No. 19-11157 Doc. 00515235844 (5th Cir. 12/13/19). Though Caldwell’s
second motion for reconsideration contains a “conditional notice of appeal” to this court, we
have held that a document seeking to appeal “only if reconsideration is denied” does not
“clearly evince [an] intent to appeal” and is thus ineffective as a notice of appeal. Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (cleaned up).
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                                   No. 19-11157
district court determined that Caldwell was not entitled to relief from the
judgment of dismissal under Rule 60(b) because none of the enumerated
grounds for relief under that rule were satisfied. Specifically, the district court
first noted that Caldwell “neither present[ed] newly discovered evidence nor
allege[d] fraud or that the judgment is void, has been satisfied, released,
discharged, or is based on an earlier judgment or that it would be inequitable
to apply the judgment prospectively.” See FED. R. CIV. P. 60(b)(2), (b)(3), (b)(4),
& (b)(5). Further, the district court determined that Caldwell could not justify
relief under the Rule 60(b)(6) catch-all provision because he “fail[ed] to present
either a situation or a circumstance so extraordinary as to justify relief.” See
Priester v. JP Morgan Chase Bank, N.A., 927 F.3d 912, 913 (5th Cir. 2019)
(extraordinary circumstances required for relief under Rule 60(b)(6)’s catch-all
provision). Finally, the district court concluded that Caldwell was not entitled
to relief under Rule 60(b)(1) because its judgment did not “conflict with a clear
statutory mandate or implicate a fundamental misconception of the law.” See
Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir. 1987) (relief under Rule
60(b)(1) not allowed for mere mistakes “but only to rectify an obvious error of
law, apparent on the record,” where “the judgment obviously conflicts with a
clear statutory mandate or when the judicial error involves a fundamental
misconception of the law” (citations omitted)).
         We review the denial of a Rule 60(b) motion for an abuse of discretion,
Flowers v. S. Reg’l Physician Services, Inc., 286 F.3d 798, 800 (5th Cir. 2002),
and, perceiving none, AFFIRM for essentially the reasons stated by the district
court.




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