Castro v. Anderson

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 18, 2001
• Docket: 01-10052
• Status: Unpublished

Opinion

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.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:00-CV-76 - - - - - - - - - - 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.