Castro v. Anderson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10052
Summary Calendar
JOE CASTRO,
Plaintiff-Appellant,
versus
SCOTT A. ANDERSON; STONEWALL MEMORIAL HOSPITAL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:00-CV-76
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September 17, 2001
Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:1
Joe Castro, a Texas citizen, appeals from the district court’s
denial of his “Motion to Enlarge Time and for New Trial,” which he
filed under FED. R. CIV. P. 59(e) following the court’s granting of
the defendants’ summary-judgment motion in this 42 U.S.C. § 1983
civil rights action. The court had granted summary judgment
without considering Castro’s response, based on Castro’s having
filed the response untimely under N.D. TEX. R. 7.1(e).
1
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that this opinion should not be published and is not precedent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.
Although Castro’s “Motion to Enlarge Time and for New Trial”
was filed within 10 days after the entry of judgment and was thus
sufficient to preserve an appeal of the underlying judgment, see
Lockett v. Anderson, 230 F.3d 695, 700 (5th Cir. 2000), Castro has
briefed no argument with respect to the merits of the district
court’s summary-judgment ruling. He has thus waived any challenge
to the merits of such decision. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9).
Castro argues only that the court should have reconsidered its
summary-judgment ruling by considering his untimely response to the
defendants’ summary-judgment motion. Castro was not entitled to an
extra three days of time under FED. R. CIV. P. 6(e) because he was
not acting “after the service of a notice or some other paper,” but
after the “filing” of the defendants’ motion. See Rule 6(e);
Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 468 (5th
Cir. 1998); Lauzon v. Strachan Shipping Co., 782 F.2d 1217, 1220
(5th Cir. 1985). His response to the defendants’ motion was
untimely by a full week, so the alleged malfunctioning of his
attorney’s fax machine three days after the conclusion of the 20-
day period for responding to the defendants’ motion could not
constitute excusable neglect.
AFFIRMED.
2