                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                No. 02-20822
                              Summary Calendar


JAMES McARTHUR,

                                                  Plaintiff-Appellant,

                                     versus

CROWN CORK & SEAL,

                                                  Defendant-Appellee.



              Appeal from the United States District Court
                   For the Southern District of Texas


                               (H-00-CV-4451)
                              December 4, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     James McArthur appeals the district court’s denial of his

motion   to    reconsider    its    grant   of   summary   judgment   to   the

defendant.     Appellant asserts that the district court abused its

discretion in not granting his motion to reconsider.            We agree and

reverse the summary judgment award.

     Defendant filed a motion for summary judgment several months

before the     deadline     for    completing    discovery.   Prior   to   the

     *
        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this opinion should not be published and is not precedent except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.
deadline for filing a response, the plaintiff filed a “Motion to

Modify and Extend the Docket Control Order [90 days].”                              The

plaintiff did not respond to the summary judgment motion.                      Rather,

in   the    motion   to   modify    the    docket      control    order,   plaintiff

requested that the response to summary judgment be “abated.”                        This

request was made three times in a three-page motion, including once

as a separately numbered paragraph (number 3 of 5).                     Specifically,

plaintiff suggested “any new docket control order move the summary

judgment respond [sic] after the close of discovery in order that

the Court be provided a full response....”                     The district court

granted this motion and entered an Amended Docket Control Order.

      In    granting      the    motion,       the     district    court      did   not

specifically rule on the portion of the motion asking that the

response be “abated,” specifically until the discovery deadline.

In the amended control order, the discover deadline was pushed back

as requested, but no mention of the response deadline was made.

Under the applicable rules, the deadline for a response had already

passed when the court entered its order unless the court had

modified the deadline by granting the motion.

      The    plaintiff     and     defendant         both   continued    to    conduct

discovery.     On May 20, 2002, four days before the completion of

discovery deadline, the district court granted the defendant’s

summary judgment motion.            The court stated that “although the

motion was filed on November 13, 2001, plaintiff, James McArthur,

has not responded to it.”            Eight days later plaintiff filed the

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motion at issue, entitled “Plaintiff’s, James McArthur, Rule 59(E)

Motion for Reconsideration (Motion to Alter or Amend Judgment).”

In setting out his reasons in support of the motion, the plaintiff

stated that he had filed a motion “requesting abatement of the

summary judgment response” and that this motion had been granted.

Plaintiff also noted that he was unsure when the response was due,

but worked under the assumption that it was due at the end of the

discovery period as he had requested in the motion that was granted

by the district court.    The district court denied the motion to

reconsider, stating only that “Because plaintiff has not stated any

legitimate reason for his failure to respond to Defendant’s Motion

for Summary Judgment, the motion is DENIED.”

     We review a district court’s refusal to grant a motion under

either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil

Procedure for abuse of discretion.1 Although the plaintiff’s motion

was labeled as a Rule 59(e) motion, this court has held:

     Nonetheless, we have oft stated that “[t]he relief sought,
     that to be granted, or within the power of the Court to
     grant, should be determined by substance, not a label.”
     Accordingly, we may treat this pleading as either a Rule
     59(e) motion to alter or amend the judgment or a Rule 60(b)
     motion for relief from the judgment.2




     1
      Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350,
353 (5th Cir. 1993).
     2
       Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.
1996)(citations omitted).

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Typically, when the motion was filed determines under which rule the

motion falls.3 However, the substance of the present motion is more

appropriate for a Rule 60(b) motion.

     Here, the district court abused its discretion. A very similar

case was presented to this court in Bohlin.4 Similar to the appellant

here, the appellant in Bohlin failed to file an answer to a motion to

dismiss. The appellant claimed that it had understood a court order

which allowed 60 days for discovery on an unrelated application for

a temporary restraining order to suspend local rules which required

a response to the motion to dismiss within 20 days.5    The district

court rejected this argument in denying a motion for reconsideration

filed by the appellant, and this court upheld the district court’s

denial.6 This court examined the motion to reconsider as both a Rule

59(e) and Rule 60(b) motion.     In upholding the district court’s

denial of the motion to reconsider, this court found that the

district court never “explicitly nor implicitly suspended the local

rules governing the timing of responses to motions. Neither did the




     3
       Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167,
173 (5th Cir. 1990)(noting that a motion filed within 10 days of the
final judgment is considered a Rule 59(e) motion, and those after
that must be considered Rule 60 motions).
     4
         6 F.3d 350.
     5
         Id. at 352-53.
     6
         Id. at 352.

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court explicitly or implicitly rule that it would delay consideration

of the subject motion for sixty days.”7

     Unlike the appellant in Bohlin, in the present case the

appellant has made a persuasive argument that the district court did

in fact modify the due date for the response to the motion for

summary judgment.      Appellant’s Motion to Modify and Extend the

Docket Control Order clearly requested an “abatement” of the deadline

for filing a response to the summary judgment motion, specifically

until after the deadline for completion of discovery.    This motion

was granted, and a new docket control order was entered.    Although

the court’s new order did not specifically mention a new deadline for

the response to the summary judgment motion, it did set a new

deadline for completing discovery, and surely there was no need to

continue discovery if the record had closed for summary judgment. In

these circumstances, granting the motion in full without mention of

the three separate requests that the deadline for the response be

extended, the district court at least implicitly extended the

deadline for the response.

         This is the kind of mistake and excusable neglect that Rule

60(b) was meant to correct.8 We therefore conclude that the district

court abused its discretion in not granting appellant’s motion to


     7
         Id. at 355.
     8
      See Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d 933,
938-39 (5th Cir. 1999).


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reconsider. The grant of summary judgment is reversed and the case

is remanded for further proceedings, including the filing of any

response to the motion for summary judgment.

     REVERSED and REMANDED.




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