Smith v. Alumax Extrusions, Inc., 204
| Decision Date | 05 April 1989 |
| Docket Number | A,No. 88-4686,No. 204,204,88-4686 |
| Citation | 868 F.2d 1469 |
| Parties | 131 L.R.R.M. (BNA) 2041, 111 Lab.Cas. P 11,112, 13 Fed.R.Serv.3d 667 Everson D. SMITH, Plaintiff-Appellant, v. ALUMAX EXTRUSIONS, INC. and Localluminum, Brick & Glass Workers International Union, Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jim Waide, Tupelo, Miss., for plaintiff-appellant.
W. Kerby Bowling, II, Bowling & Scruggs, Memphis, Tenn., Samuel L. Begley, John L. Maxey, Cupit & Maxey, Jackson, Miss., for Alumax.
Thomas P. Powers, Powers & Lewis, Washington, D.C., for Local No. 204.
Appeal from the United States District Court for the Northern District of Mississippi.
Before REAVLEY, JOHNSON, and JOLLY, Circuit Judges.
Plaintiff Everson D. Smith appeals an order of the district court denying his motion to vacate a previous order granting summary judgment in favor of defendants, Alumax Extrusions, Inc. (Alumax) and Local No. 204, Aluminum Brick & Glass Workers International Union (Union). Persuaded that the district court did not abuse its discretion in denying Smith's motion to vacate insofar as that motion was asserted pursuant to Fed.R.Civ.P. 60, we affirm. We remand, however, Smith's claim that the district court erred in denying his motion to vacate the summary judgment order filed pursuant to Fed.R.Civ.P. 59(e) since the record reveals that the district court has not yet ruled on Smith's Rule 59(e) contentions.
Plaintiff Everson D. Smith brought the instant action against his previous employer, Alumax, and his former union, Local No. 204, following his discharge by Alumax on October 2, 1985, for disorderly conduct, refusing to follow instructions, using alcohol, and receiving repeated reprimands. Pursuant to the provisions of the collective bargaining agreement between Alumax and the union, Smith initially protested his discharge from Alumax by submitting a grievance to an arbitration board on February 19, 1986. The arbitration board subsequently upheld Smith's discharge after which Smith commenced the instant action on October 2, 1986. In the instant suit, Smith maintains that Alumax unlawfully discharged him in violation of the terms of the collective bargaining agreement between Alumax and the union, and that the union failed to adequately represent him during the arbitration proceedings in which he protested his discharge from Alumax.
After Smith filed his complaint, Alumax and the union filed their answers and the parties thereafter commenced discovery. Ultimately, Alumax and the union filed motions for summary judgment, the last of which was filed on December 10, 1987. Together with their summary judgment motions, Alumax and the union submitted to the district court various exhibits including a transcription of the hearing before the arbitrator, the written decision of the arbitrator, and excerpts from a deposition of Smith. Counsel for Smith, however, never filed a response to the above summary judgment motions by Alumax and the union; instead, Smith's counsel filed a motion to withdraw from the instant matter on February 3, 1988, after the deadline for timely responding to the summary judgment motions of Alumax and the union had expired. In his motion to withdraw, counsel for Smith maintained that he could not continue to pursue Smith's case as he believed to do so would violate the spirit of Fed.R.Civ.P. 11. The district court subsequently allowed Smith's counsel to withdraw from the case.
Thereafter, Smith continued to litigate the instant action pro se until March 31, 1988, at which time Smith was able to retain new counsel. Approximately three weeks after new counsel was retained by Smith, on April 22, 1988, the district court entered an order granting the motions for summary judgment of Alumax and the union, 683 F.Supp. 1074. Seeking relief from the above summary judgment order, Smith, on May 2, 1988, filed a motion to vacate the summary judgment order of the district court. Importantly, Smith asserted his motion to vacate pursuant to Fed.R.Civ.P. 59(e), as well as Fed.R.Civ.P. 60(b). Without addressing the contentions of Smith in his motion to vacate brought pursuant to Rule 59(e), the district court concluded that Smith had failed to demonstrate excusable neglect within the context of Rule 60(b) for his failure to timely respond to the summary judgment motions of Alumax and the union. On this basis, the district court denied Smith's May 2 motion to vacate in toto. In doing so, the district court specifically noted that the deadline for the filing of a response to the last summary judgment motion filed by Alumax and the union was December 24, 1988, approximately six weeks prior to the time when original counsel for Smith requested to withdraw. Smith now appeals the order of the district court denying his motion to vacate.
Pursuant to Fed.R.Civ.P. 60(b), the court may relieve a party from a final judgment, order, or proceeding for, among other reasons, excusable neglect. In the instant action, Smith filed a request for such relief under Rule 60(b) which the district court denied. "Motions under Rule 60(b) are directed to the sound discretion of ...
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