     Case: 15-60863      Document: 00513627536         Page: 1    Date Filed: 08/08/2016




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

                                    No. 15-60863
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 8, 2016
                                                                           Lyle W. Cayce
CABIN S. LONG,                                                                  Clerk


              Plaintiff–Appellant,

v.

DEBORAH LEE JAMES, Secretary of the United States Air Force; UNITED
STATES OF AMERICA,

              Defendants–Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:13-CV-343


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Cabin Long filed suit against Defendants–Appellees
Deborah Lee James, Secretary of the United States Air Force, and the United
States of America, alleging disability discrimination under the Rehabilitation
Act of 1973, 29 U.S.C. § 701 et seq., and the Family and Medical Leave Act of
1993, 29 U.S.C. § 2601, et seq. ROA.149–60. On July 6, 2015, Defendants


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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moved for summary judgment, and Long did not respond to the motion.
ROA.268–71, 388. On September 23, 2015, the district court granted summary
judgment to Defendants, dismissed Long’s claims with prejudice and entered
final judgment. ROA.348–49. Two days later, on September 25, 2015, Long
filed a Motion for Relief from Judgment under Federal Rules of Civil Procedure
60(b)(1) and 60(b)(6), claiming that his counsel did not receive Defendants’
Motion for Summary Judgment from the court’s electronic filing system and
was thus unaware that any motion had been filed until his counsel received
the court’s final judgment. ROA.350–57. Long submitted affidavits from his
counsel and his counsel’s assistant which averred that they searched their e-
mail and did not discover any record of receiving Defendants’ motion.
ROA.358–59. Long asked the district court to reopen the case and allow him
15 days to respond to Defendants’ motion. ROA.356. The district court denied
Plaintiff’s Motion for Relief. ROA.391–92.
      We review a district court’s denial of relief under Rule 60(b) for abuse of
discretion. United States v. Fernandez, 797 F.3d 315, 318 (5th Cir. 2015). “A
district court abuses its discretion if it bases its decision on an erroneous view
of the law or on a clearly erroneous assessment of the evidence.” Id. (quoting
Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005)).
      Rule 60(b) provides that “[o]n 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] . . . (6) any other reason that justifies relief.” Fed. R. Civ.
P. 60(b)(1), (6). Rule 60(b)(1) provides relief for a party that has failed to “timely
answer or otherwise defend” if the party demonstrates that its failure
(1) “resulted from justifiable neglect” and (2) “that a fair probability of success
on the merits existed if the judgment were to be set aside.” Fed. Sav. & Loan
Ins. Corp. v. Kroenke, 858 F.2d 1067, 1069 (5th Cir. 1988). Rule 60(b)(6) is a
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catch-all provision that provides relief for “any other reason” but is only
granted “if extraordinary circumstances are present.” Hess v. Cockrell, 281
F.3d 212, 215–16 (5th Cir. 2002) (quoting Batts v. Tow-Motor Forklift Co., 66
F.3d 743, 747 (5th Cir. 1995)).
      Although Rule 60(b)(1) provides relief for “excusable neglect,” this does
not encompass mistakes resulting from the “[g]ross carelessness” of counsel or
counsel’s failure to act with diligence. Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 356–57 (5th Cir. 1993); see also 11 Charles Alan Wright et al.,
Federal Practice and Procedure § 2858 (3d ed. 2016) (“Insufficient showings for
relief [under Rule 60(b)(1)] . . . include when the party or attorney did not act
diligently to discover the purported mistake . . . .”). “A party has a duty of
diligence to inquire about the status of a case . . . .” Bohlin, 6 F.3d at 357.
      Long argues that his counsel’s failure to receive e-mail notification of
Defendants’ motion for summary judgment constitutes “excusable neglect” for
his failure to respond. Blue Br. 10–17. We disagree. As the district court
observed, Defendants had put Long on notice that they “intend[ed] to file a
dispositive motion” prior to the filing deadline, ROA.259–60, and Long was
aware the filing deadline had been continued to July 6, 2015, ROA.391. The
district court noted there was a 79-day gap between the filing deadline and the
district court’s entry of final judgment, and Long’s counsel had ample
opportunity to check the district court docket in this intervening period.
ROA.391. In addition, even if Long’s failure to respond was “excusable neglect,”
Long failed to provide specific evidence in his motion for relief that he had a
“fair probability of success on the merits” if the judgment were set aside, and
thus relief under Rule 60(b)(1) would be improper. See Kroenke, 858 F.2d at
1069. Although Long also seeks relief under Rule 60(b)(6), he has not
demonstrated that “extraordinary circumstances” are present here. Hess, 281
F.3d at 216. We conclude therefore that the district court did not abuse its
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discretion in denying Long’s motion for relief and AFFIRM the judgment of the
district court.




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