                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      August 22, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 05-11044
                             Summary Calendar


DUANE DRAPER,

                             Plaintiff - Appellant,

versus

KK FORD, LP; et al.,

                             Defendants,

KK FORD, LP, doing business as Karl Klement Ford, doing business as
King Karl Klement Ford; KARL KLEMENT ENTERPRISES-NEVADA, INC.; TEAM
AMERICA CORPORATION, INC.,

                             Defendants - Appellees.


            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 4:05-CV-094-A


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.


PER CURIAM:*

     In 1988, Duane Draper began working at the Karl Klement Ford

dealership in Decatur, Texas.       In September 2002, he was diagnosed

with leukemia and took FMLA leave.        After his FMLA leave expired,

Draper was still unable to work, and KK Ford terminated Draper’s

employment.     He obtained a right to sue letter from the EEOC in



     *
         Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
August 2003.

     The case now before us is the second related suit filed by

Draper, alleging causes of action under the ADA, FMLA, Title VII,

and ERISA.1    In the first suit, Draper filed a timely response to

the Defendant’s motion for summary judgment, after successfully

requesting an extension, and argued the merits before the district

court, which ultimately granted the motion. Draper appealed,2 only

to withdraw the appeal and file suit in state court in January

2005.    KK Ford removed the case to federal court and again filed a

motion for summary judgment.3

     Meanwhile, Draper’s attorney, Grover Hankins, had applied for

admission to the Bar of the Northern District of Texas, that

application denied.      However, after a successful appeal initiated

in August 2004,4 Hankins was admitted in January 2006.            During the

pendency of that appeal, Draper failed to file a timely response to

KK Ford’s motion for summary judgment in the instant case and, five

days after the expiration of the deadline, moved for an extension




     1
         In the first suit, Draper named Karl Klement Enterprises, Inc. as
defendant.
     2
         No. 04-11004.
     3
         Team America was a staff leasing company in the position of a co-
employer with KK Ford under a client service agreement at relevant times for
purposes of Draper’s allegations. During a telephonic proceeding on August 15,
2005, all claims against Team America were voluntarily dismissed.

     4
         See In re: Hankins, 154 Fed. Appx. 424 (5th Cir. 2005) (unpublished).

                                      2
of time under FED.R.CIV.P. 6(b),5 which was denied.              Draper stated

that surrogate, local counsel was “engaged in several homicide

cases in state court” and that primary counsel, Hankins, was

“moving his law office.”

      Neither party addresses the merits of the summary judgment.

Rather,     Draper   contends    that   the   district    court    effectively

deprived him of his counsel by not granting an extension under Rule

6(b)(2).6    We review for abuse of discretion.7

      The district court did not abuse its discretion, as the

explanation offered by counsel for the tardiness does little to

demonstrate excusable neglect. A busy practice does not constitute

excusable neglect.8       Moreover, in the motion before the district

court, counsel did not raise the difficulty in obtaining admission



      5

          When by these rules or by a notice given thereunder or by
          order of court an act is required or allowed to be done at or
          within a specified time, the court for cause shown may at any
          time in its discretion...upon motion made after the expiration
          of the specified period permit the act to be done where the
          failure to act was the result of excusable neglect....

FED.R.CIV.P. 6(b)(2).
      6
          Appellee’s reurge an argument made by motion in October 2005,
petitioning us to dismiss for lack of jurisdiction. Another panel of this Court
denied that motion.
      7
         See Bernhard v. Richardson-Merrell, Inc., 892 F.2d 440, 444 (5th Cir.
1990) (stating that “absent an affirmative showing by the non-moving party of
excusable neglect according to Rule 6(b), a court does not abuse its discretion
when it refuses out-of-time affidavits”).

      8
         Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990) (addressing
a missed discovery deadline) (citing McLaughlin v. City of LaGrange, 662 F.2d
1385, 1387 (11th Cir. 1981) ("a busy practice does not establish 'excusable
neglect'")).

                                        3
to the local bar as an impediment to a timely submission.9                  In

fact, Hankins had previously managed to make submissions to the

court through local counsel.

      AFFIRMED.




      9
        Presumably, however, the district court knew of the situation since the
same court denied Hankins’s admission request.

                                      4
