Smyth v. LA State University ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-30640
____________________
DAVID JOHN SMYTH,
Plaintiff-Appellant,
versus
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(98-CF-916-B-M2)
_________________________________________________________________
April 9, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
PER CURIAM:2
The linchpin for this appeal is that, pursuant to the Federal
Rules of Appellate Procedure, the appeal lies only from the denial
of a Rule 60 motion, not from the underlying summary judgment
challenged on appeal. Accordingly, our standard of review is far
more narrow. Because David John Smyth’s motion to set aside the
judgment constituted a Rule 60 motion, we review only for an abuse
of discretion. AFFIRMED.
1
Circuit Judge of the Ninth Circuit, sitting by designation.
2
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this opinion should not be published and is not precedent except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.
Smyth brought this action against Louisiana State University
and its Board of Supervisors (collectively LSU), claiming violation
of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq. The magistrate judge recommended granting LSU’s
summary judgment motion. Smyth did not file objections to that
report and recommendation. On 23 March 2000, after independently
reviewing the record, and, for the reasons stated in the magistrate
judge’s report, the district court granted summary judgment for
LSU. Judgment was entered that same day.
Almost four weeks later, on 19 April 2000, Smyth filed a
motion, with supporting memorandum, to set aside the judgment,
stating that, because Smyth had been, and was, working in England
“the communication[s] between [Smyth] and his counsel [are] more
time consuming than the inflexible rule for objections allowed
for”. But, judgment having been entered on 23 March, the motion
was filed far outside the 10-day limit placed on Rule 59 motions to
amend a judgment. FED. R. CIV. P. 59(e) (“Any motion to alter or
amend a judgment shall be filed no later than 10 days after entry
of the judgment.”). Accordingly, the district court treated the
motion as a Rule 60 motion for relief from a judgment or order.
FED. R. CIV. P. 60 (allowing for relief from judgment); Halicki v.
Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998)
("As with untimely Rule 52(b) motions, and untimely Rule 59(a)
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motions, a court may treat an untimely Rule 59(e) motion to alter
or amend the judgment as if it were a Rule 60(b) motion if the
grounds asserted in support of the Rule 59(e) motion would also
support Rule 60(b) relief.” (quoting 1 JAMES W. MOORE ET AL., MOORE’S
FEDERAL PRACTICE, § 60.03[4], at 60-24 (3d ed. 1998)), cert. denied,
526 U.S. 1005 (1999).
On 27 April, after stating that it was treating the motion as
one pursuant to Rule 60, the district court denied the motion,
concluding: “the plaintiff’s reasons for setting aside the Court’s
judgment do not come within the Rule 60(b) standards [and t]he
arguments made raise no new issues”. (Emphasis added.) Although
not required, the district court entered a judgment that same day.
On 3 May, Plaintiff filed a notice of appeal “of the final judgment
... entered ... on 27 April 2000”.
Under the Federal Rules of Appellate Procedure, the appeal
lies only from the 27 April denial of the Rule 60 motion because
the appeal period from the 23 March judgment (granting summary
judgment) expired long before the 3 May notice of appeal was filed.
FED. R. APP. P. 4(a)(1) (in civil case, notice of appeal must be
filed within 30 days after judgment appealed from is entered).
Filing the belated motion did not extend the time for appealing
from the 23 March judgment. FED. R. APP. P. 4(a)(4)(A) (time to
file appeal runs from entry of judgment disposing of Rule 59 motion
or of Rule 60 motion if latter filed no later than 10 days after
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judgment entered). Restated, the 19 April motion, not being filed
within 10 days from the entry of the 23 March judgment, did not
extend the period for appeal from that judgment. Therefore, as
stated, at issue is only the ruling on Smyth’s Rule 60 motion.
Regarding that ruling, “the decision to grant or deny relief
under Rule 60(b) lies within the sound discretion of the district
court and will be reversed only for abuse of that discretion”.
Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en
banc) (emphasis added). The reason for our quite limited review is
well-established and well-reasoned. “Appellate review of a denial
of a rule 60(b) motion must be narrower in scope than review of the
underlying order of dismissal so as not to vitiate the requirement
of a timely appeal.” Huff v. Int’l Longshoremen’s Assoc., Local
#24, 799 F.2d 1087, 1091 (5th Cir. 1986) (internal quotation and
citation omitted).
As the district court stated, Smyth’s Rule 60(b) motion,
contrary to that Rule, presented neither new evidence nor any other
“reason justifying relief from the operation of the judgment”.
FED. R. CIV. P. 60(b)(6). Instead, Smyth simply restated the
reasons he originally presented to the magistrate judge in
opposition to summary judgment. In essence, his motion stated the
objections he had earlier failed to file to the magistrate judge’s
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recommendation regarding previously submitted evidence. The
district court did not abuse its discretion in denying that motion.
AFFIRMED
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