Gantt v. US Dept of Army ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-30402
Summary Calendar
GENNIE L. GANTT
Plaintiff - Appellant
VERSUS
UNITED STATES DEPARTMENT OF ARMY
Defendant - Appellee
Appeal from the United States District Court
For the Western District of Louisiana
01-CV-1592
September 19, 2002
Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges
PER CURIAM:*
The only significant issue which merits discussion on appeal
is Gantt’s argument that the district court erred in denying his
motion for new trial based on newly discovered evidence.
The district court concluded that Gantt’s action was time
barred for the following reason:
*
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opinion should not be published and is not precedent except under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.
On December 22, 1998, the EEOC issued its
decision affirming the Army’s final agency
decision. Gantt had thirty days from the
receipt of that notice to file for
reconsideration. Fed.R.Civ.P.6(e) states that
service by mail adds 3 days to a period
computed from time of service. Gantt mailed
his request for reconsideration on January 26,
1999. Thirty three days from December 22 is
January 24. Gantt’s request was mailed
January 26; therefore, it was not timely and
could not toll the statutory time limit. A
timely petition for reconsideration will toll
the filing deadline in district court, but an
untimely petition has no tolling effect.
Belhomme v. Widnall, 127 F.3d 1214, 1216-
17(10th Cir. 1997). Accordingly, summary
judgment will be granted and Gantt’s suit will
be dismissed.
Gantt filed no affidavit or other evidence with his summary
judgment evidence indicating when he received the EEOC’s decision
affirming the Army’s final decision. Thus, in the absence of
evidence from Gantt as to the date he received that decision, the
district court applied the Federal Rule of Civil Procedure 6(e) to
determine when, under the rules, Gantt was deemed to have received
the notice of the EEOC’s decision.
Following the district court’s dismissal of his suit, Mr.
Gantt filed a timely Rule 59(e) motion. Gantt attached a return
receipt to his motion and stated in his memorandum that Gantt
received the EEOC decision on December 28, 1998. Assuming that
Gantt received the decision on December 28th instead of December
26th, as determined by the district court by applying Rule 6(e)
F.R.C.P., Gantt timely mailed his request for reconsideration.
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The district court did not abuse its discretion in declining
to consider Gantt’s new evidence and grant a new trial under these
circumstances.
In deciding whether to consider new evidence filed in support
of a Rule 59(e) motion, the court should consider such factors as:
(1) the reasons for a moving party’s failure to furnish evidence as
part of his original summary judgment evidence; (2) the importance
of the evidence to the moving party’s case; (3) whether the omitted
evidence was available before the moving party responded to the
motion for summary judgment; and (4) the likelihood of prejudice to
the non-moving party if the case is reopened. Lavespere v. Niagara
Mach. & Tool Works, Inc. 910 F.2d 167, 174(5th Cir. 1990).
The return receipt was Mr. Gantt’s document and he failed to
explain in his memorandum in support of his motion for new trial
why the certified mail receipt constituted newly discovered
evidence; that is, why it was not available to him to provide as
part of his original summary judgment evidence. Mr. Gantt offered
no evidence to show that the receipt was not available to him prior
to the entry of the summary judgment. The unexcused failure to
present evidence which is available at the time a motion is under
consideration is a legitimate reason for denying a motion to
reconsider. Matador Petroleum Corp. v. St. Paul Surplus Lines
Insurance. Co., 174 F.3d 653, 658 n.1(5th Cir. 1999); Russ v.
International Paper Co., 943 F.2d 589, 593 (5th Circ. 1991). See
also, Lake Hill Motors, Inc. V. Jim Bennett Yacht Sales, Inc., 246
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F.3d 752, 758 (5th Cir. 2001).
Even if the district court had considered the return receipt
Gantt filed in his Rule 59 motion, the receipt alone did not
establish that the EEOC decision was delivered along with the
envelope containing the receipt. In other words, the return
receipt had a reference number on its face that corresponds to
Gantt’s case, but Gantt filed no affidavit asserting that the
return receipt accompanied the EEOC decision.
Accordingly, for the reasons stated above, the district court
did not abuse its discretion in denying Mr. Gantt’s motion for new
trial.
AFFIRMED.
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