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

                                                                            FILED
                                                                         December 8, 2008
                                       No. 07-30850
                                                                      Charles R. Fulbruge III
                                                                              Clerk
ASSOCIATED MARINE EQUIPMENT LLC

                                                  Plaintiff-Appellee

v.

EDMOND JONES

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CV-2837


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       The district court denied Appellant’s Rule 60(b) motion. We conclude that
the district court should not have denied the motion. Because the facts are
insufficiently developed to decide the motion, we vacate the district court’s order
and remand the case for further proceedings.
                                  I. BACKGROUND
       In mid-2005, Edmund Jones (“Jones”) filed a claim with the Department
of Labor for injuries he allegedly sustained while aboard the vessel D/B



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-30850

RUSSELL KNIGHT. In response, vessel-owner Associated Marine Equipment,
LLC (“AME”) filed a complaint against Jones, seeking a declaratory judgment
that (1) Jones was a seaman, (2) AME was not obligated to provide maintenance
and cure to Jones because Jones did not sustain an injury while in the service
of an AME vessel, (3) any of Jones’s medical conditions did not arise out of the
unseaworthiness of the D/B RUSSELL KNIGHT, and (4) Jones was not entitled
to benefits under the Longshore and Harbor Workers’ Compensation Act. On
August 10, 2005, Jones, through counsel, filed his opposition to the complaint.
      By mid-April, 2006, AME complained that Jones’s attorney had failed to
cooperate with discovery and was generally unresponsive. The record suggests
that neither the district court, nor AME, nor Jones had any contact with Jones’s
attorney after April 7, 2006. On April 14, 2006, AME filed a motion to compel
Jones to appear for his deposition and respond to written discovery requests.
There was no opposition or other response to AME’s motion. The magistrate
judge granted the motion to compel and declared that failure to comply with the
order would result in a report and recommendation that Jones’s opposition to
AME’s suit be dismissed.
      On June 13, 2006, AME moved to dismiss Jones’s opposition to its suit,
complaining that Jones never tendered his discovery responses or appeared for
his deposition. Once again, there was no opposition or other response. The
district court granted AME’s motion and entered a declaratory judgment for
AME. The district court also dismissed with prejudice any Jones Act claim that
Jones had attempted to bring. Finally, the district court ordered Jones to pay
AME’s attorney’s fees, expenses, and costs incurred with filing its motion. No
notice of appeal was filed after entry of the judgment.
      Nearly six months later and represented by a new attorney, Jones filed a
motion for relief from the judgment pursuant to Federal Rule of Civil Procedure
60(b). Jones claimed that the sole reason for his absence throughout the
proceedings was his attorney’s complete failure to inform him of the court’s

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orders to comply with AME’s discovery requests. Jones suggested that the
unique circumstances of the post-Katrina environment led to his attorney’s
failure to keep him abreast of developments in the litigation and asked that his
attorney’s personal problems not be visited upon him. Jones attached an
affidavit to his motion wherein he stated that, “[d]espite repeated attempts to
contact [his attorney], he was never successful in doing so.” Jones also asserted
in his affidavit that “[a]t no time was he ever made aware by his attorney . . . or
anyone else of any order of court to comply with discovery or to attend a
deposition.” Jones requested oral argument and the opportunity to present live
testimony.
      Sometime after denying the motion for oral argument, the district court
denied the Rule 60(b) motion, noting that the record reflected that the court and
AME’s attorney had been able to communicate with Jones’s attorney after
Hurricane Katrina, that Jones had never complained to the court of an inability
to communicate with his attorney, and that Jones had not contacted the court
to determine the status of his case until a year and a half after the storm. The
court held that Jones had not shown excusable neglect warranting relief under
Rule 60(b). Jones gave timely notice of appeal from this order.
                               II. DISCUSSION
      Because Jones is pro se, we liberally construe his arguments. See Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Further, Jones is a seaman,
and “[s]eamen . . . are wards of admiralty whose rights federal courts are duty-
bound to jealously protect.” Steverson v. GlobalSantaFe Corp., 508 F.3d 300, 303
(5th Cir. 2007).
      Rule 60(b) provides, in pertinent part,
      Grounds for Relief from a Final Judgment, Order, or Proceeding.
      On motion and just terms, the court may relieve a party or its legal
      representative from a final judgment, order, or proceeding for the
      following reasons:
            (1) mistake, inadvertence, surprise, or excusable neglect; [or]


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                                       No. 07-30850

              ...
              (6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). Rule 60(b) acts to balance “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.’” Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 401 (5th Cir. Unit A Jan. 1981) (quoting Bankers Mortgage Co. v. United
States, 423 F.2d 73, 77 (5th Cir. 1970)).
       What is meant by this general statement is that, although the
       desideratum of finality is an important goal, the justice-function of
       the courts demands that it must yield, in appropriate circumstances,
       to the equities of the particular case in order that the judgment
       might reflect the true merits of the cause.
Id. Thus, while we must be mindful of the interests in finality that the
preservation of a judgment serves, we also must recognize that these interests
are not inviolate. Id.
       We review the district court’s denial of a Rule 60(b) motion for an abuse
of discretion.1 Id. at 402.
       It is not enough that the granting of relief might have been
       permissible, or even warranted—denial must have been so
       unwarranted as to constitute an abuse of discretion. Nevertheless,
       the discretion of the district court is not unbounded, and must be
       exercised in light of the balance that is struck by Rule 60(b) between
       the desideratum of finality and the demands of justice.
Id. (citation omitted). “[W]here denial of relief precludes examination of the full
merits of the cause, even a slight abuse may justify reversal.” Id. Consequently,
Rule 60(b) “is applied most liberally to judgments in default.” Id. at 403. In
reviewing decisions bearing “the characteristics of a default judgment,” we will


       1
          “The district court’s denial of an evidentiary hearing is also subject to abuse of
discretion review.” McCorvey v. Hill, 385 F.3d 846, 848 (5th Cir. 2004). AME contends that
the question of whether the district court abused its discretion in denying Jones’s motion for
an evidentiary hearing is not properly before the court because Jones did not file a notice of
appeal from that order. This contention is without merit. See Trust Co. of La. v. N.N.P. Inc.,
104 F.3d 1478, 1485 (5th Cir. 1997) (“[A]n appeal from a final judgment sufficiently preserves
all prior orders intertwined with the final judgment”).

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                                  No. 07-30850

liberally construe Rule 60(b) “in favor of trial on the full merits of the case.
Thus, unless it appears that no injustice was done by the judgment, the equities
in such cases will militate strongly in favor of relief.” Id.
      In Seven Elves, several defendants were represented by the same counsel
in a malicious prosecution and slander suit. Id. at 398. The appeal involved two
of the defendants, whom counsel had told that “no action would be required of
them unless and until he contacted them.” Id. at 403. Wholly unbeknownst to
these two defendants, their counsel later withdrew from the case, and the
defendants were consequently absent from and unrepresented at trial. Id. at
399. The district court struck these defendants’ pleadings and entered judgment
against them.     Id.   When the defendants learned of the judgment, they
immediately retained new counsel and requested relief from the district court.
Id. The court later denied their Rule 60(b) motion. Id.
      On appeal, this court reversed the district court’s denial of the motion. Id.
at 404. We noted that the defendants’ “absence resulted from the confluence of
a number of unusual circumstances:”
      they were informed by their attorney that no action would be
      required of them unless and until he contacted them; he
      subsequently “withdrew” from the case without being relieved as
      attorney of record or informing the appellants of his withdrawal; he
      determined he would not appear at trial without informing the
      appellants of that decision; and although notice of trial was
      forwarded to the appellants, they did not in fact receive it.
Id. at 403. We recognized that the defendants had “rel[ied] on the assurances
of their attorney, as might any laymen.” Id. As a consequence, the defendants
“found themselves the judgment debtors of [the plaintiff] in the amount of a
quarter of a million dollars without ever having had their day in court.” Id.
Thus, we ruled that the desire for finality “must yield to the equities of the case
in order that the appellants may be afforded their day in court.” Id.
      AME argues that Jones is not entitled to relief under Rule 60(b) because
his failure to respond to discovery requests was due to his own “gross

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                                         No. 07-30850

carelessness” and “ignorance of the rules.” AME asserts that Jones had a duty
to inquire into the status of his case and that his failure to do so was inexcusable
neglect. AME also suggests that the proper avenue for Jones to obtain relief
would be a malpractice suit against his first attorney.2
       Granted, this court has previously held “that a party has a duty of
diligence to inquire about the status of a case, and that Rule 60(b) relief will be
afforded only in ‘unique circumstances.’” Pryor v. U.S. Postal Serv., 769 F.2d
281, 287 (5th Cir. 1985) (quoting Wilson v. Atwood Group, 725 F.2d 255, 257, 258
(5th Cir. 1984) (en banc)). In Pryor, the district court dismissed a plaintiff’s
claim for want of prosecution after the plaintiff and his counsel failed to respond
to the defendant’s motion to dismiss, appear at the motion conference, request
a continuance, or contact the court in any other way. Id. at 283. That same
counsel later filed what was effectively a Rule 60(b) motion on behalf of the
plaintiff, wherein counsel gave no reason for his absence at the conference. Id.
After a number of procedural missteps, plaintiff’s counsel eventually filed
another Rule 60(b) motion, asserting that counsel’s absence was due to a
conflicting appointment in another court. Id. at 284.
       The district court later denied the plaintiff’s Rule 60(b) motion, and this
court affirmed. Id. We noted that plaintiff’s counsel had at first “neither recited
any facts nor offered any reasons—even of a conclusory nature—for his absence
from the motion conference (or for the subsequent delay in bringing the matter
before the court).” Id. at 287. When plaintiff’s counsel did eventually attempt


       2
         AME also asserts that any appeal of Jones’s Rule 60(b) motion is moot because Jones
did not file a timely appeal from the district court’s August 4, 2006 order granting AME’s
motion to dismiss. According to AME, the August 4, 2006 order is final, and thus any
reconsideration of the subsequent Rule 60(b) motion is moot. AME seems to suggest that a
meritorious Rule 60(b) motion cannot alter a final judgment. This is patently absurd; the very
purpose of Rule 60(b) is to “relieve a party or its legal representative from a final judgment,
order, or proceeding.” FED. R. CIV. P. 60(b) (emphasis added). It is beyond the need for citation
that, were this court to find that the district court abused its discretion in denying Jones’s Rule
60(b) motion, we would be well within our authority in reversing the district court’s denial of
the motion and remanding the case for further proceedings.

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                                   No. 07-30850

to offer “anything approaching a reason for his unexcused absence from the
motion conference,” we found his explanation woefully inadequate and noted
“that conflicts in scheduling do not provide sufficient excuse to warrant relief
under Rule 60(b)(1).” Id. Although the plaintiff urged the court not to fault him
for “the mistakes and omissions of an indifferent counsel,” this court ultimately
held that his counsel’s negligence was insufficient to warrant an exception to the
general rule of finality. Id. at 288.
      Similarly, in Wilson, counsel for third-party defendants had failed to file
a timely appeal because the clerk of the court had never mailed counsel notice
that the court had denied their motion for a new trial. 725 F.2d at 256. We
noted that “[c]ounsel for the third-party defendants did not seek information
from the clerk about the status of the motion or take any other step to determine
when judgment might be entered.” Id. This court held that Rule 60(b) could not
be used to circumvent the general rule that “the simple failure of the clerk to
mail notice of the entry of judgment, without more, does not permit relief to a
party who has failed to appeal within the prescribed time.” Id. at 257. Although
counsel in Wilson had demonstrated unique circumstances, this court held “that
unique circumstances do not excuse untimeliness when they are unrelated to
counsel’s failure to file the appeal.” Id. at 258.
      In both Pryor and Wilson, there was no indication that the parties’ counsel
had ever ceased representing them. Indeed, it appears that in both cases,
counsel who filed the Rule 60(b) motion were asking the court to excuse their
own mistakes, negligence, or incompetence. We found Rule 60(b) inapplicable
to provide relief from the errors that counsel had committed during the actual
representation of their clients.
      In the present case, the district court’s order was based primarily on
Jones’s failure to monitor the status of his lawsuit, not his counsel’s. Although
Pryor and Wilson establish that litigants have a general duty to monitor the
status of their pending cases, neither case stands for the proposition that a party

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                                       No. 07-30850

represented by counsel has an independent duty to monitor the status of pending
litigation; it was counsel’s failure to follow the pending litigation that was at
issue. At the time Jones was faulted for failing to contact the court, he believed
that he was still represented by counsel. If Jones was in fact represented, then
it is arguable that Jones’s counsel breached her duty to monitor the status of
Jones’s suit. In such a case, Pryor or Wilson might be persuasive.
       But Jones is not asking to be excused for the mistakes, carelessness, or
incompetence of his counsel, distinguishing his case from Pryor and Wilson. He
is instead asking to be relieved of the consequences of his attorney abandoning
him without his knowledge. As recounted above, Jones asserts that he could not
contact his counsel despite his repeated attempts to do so. Indeed, from the
evidence in the record, Jones’s scenario seems to resemble more closely that of
the parties in Seven Elves, where counsel’s abandonment of his clients
warranted relief from the judgment. See 635 F.2d at 403. In Seven Elves,
counsel had ceased representing the defendants without their knowledge. Id. at
399. From the evidence before us in the present case, it appears that Jones’s
counsel might have done the very same.
       Further, the equities of this case appear to favor Jones.3 Cf. id. at 402–03.
Jones was not using his Rule 60(b) motion as a substitute for appeal. The record
indicates that Jones was completely abandoned by his attorney, resulting in a
series of motions and decisions in AME’s favor that went entirely unopposed and
unquestioned.       More importantly, the judgment against Jones bears the
characteristics of a default judgment: the court entered it in Jones’s absence
prior to taking any evidence apart from that related to his failure to respond to
discovery. Indeed, Jones never had an opportunity to present his case on the


       3
        Although AME contends, and the district court implicitly found, that AME would be
prejudiced if the judgment is disturbed because Jones had surgery without first submitting to
an independent medical examination, there is no evidence of that fact in the record apart from
a statement made on information and belief of counsel. AME only informally requested the
exam, and the court never ordered Jones to submit to such an exam.

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                                  No. 07-30850

merits. And, to top it off, the district court ordered that Jones bear AME’s fees,
expenses, and costs.
      We cannot conclusively determine, however, whether the district court
should have granted Jones’s Rule 60(b) motion, as the facts have not been
sufficiently developed. Because Jones’s affidavit is excessively conclusory and
lacking in specific information, it is unclear whether the Rule 60(b) motion was
filed within a reasonable time. Unlike Seven Elves, the record does not reflect
the nature of Jones’s dealings with his attorney or the timing of his realization
that his lawsuit had been dismissed. Jones’s motion and affidavit do not explain
in detail the nature of the difficulties that Jones (or his attorney) experienced
after Hurricane Katrina. The record does not reflect whether a malpractice
action against Jones’s attorney would provide Jones with an adequate remedy.
Also, Jones has made no showing that there is merit to his Jones Act claim.
      For these reasons, we cannot say that the district court should have
granted Jones’s Rule 60(b) motion. We can, however, say that denial of Jones’s
motion was premature. Consequently, we VACATE the order and REMAND the
case to the district court for further proceedings consistent with this opinion,
including, if necessary, an evidentiary hearing.
      VACATED AND REMANDED.




                                        9
