UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 00-10424

(Summary Calendar) _________________

ROSANNA L. GONZALEZ,

Plaintiff-Appellant,

versus

STATE FAIR OF TEXAS, INC.,

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas (3:99-CV-1414-D)

October 13, 2000

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

Rosanna Gonzalez appeals the district court’s denial of her motion to alter or amend

summary judgment. We affirm.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Gonzalez worked for State Fair of Texas, Inc. for six months until she was dismissed from

her position as the Director of Sponsorships. She sued State Fair alleging violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. State Fair filed a motion for summary

judgment on January 14, 2000, and offered evidence that it had discharged Gonzalez due to poor

work performance. The district court ordered Gonzalez to respond to the summary judgment motion

by February 3.

Gonzalez’s attorney, Frank P. Hernandez, was preoccupied with a trial for another client

during this time. He ordered his new clerk t o note the response due date on his calendar. She,

unfortunately, neglected to mark it. After finishing his trial on January 20th, Hernandez returned to

practice but failed to notice that his clerk had not updated his calendar. He realized on February 7th

that he had missed the response date. On that same day, the court entered summary judgment in

favor of State Fair. Three days later, Hernandez belatedly filed several motions, including the reply

to State Fair’s summary judgment brief. The court denied all motions as untimely and moot.

Gonzalez then filed a motion to amend or alter judgment under Rule 59(e).1 See FED R. CIV.

P. 59(e). The district court denied the motion. Although the court noted that State Fair would not

suffer unfair prejudice if the case was reopened, it held that Gonzalez failed to offer a valid excuse

for its untimely filings.

1 Gonzalez did not cite to a specific Federal Rule of Civil Procedure (except for the prefatory Rule 1). The court, however, correctly construed it as a motion to alter or amend judgment since she filed it within ten days of the court’s decision. Had Gonzalez waited over ten days, her motion would have fallen under Rule 60(b)’s relief from judgment or order. See Harcon Barge Co., Inc. v. D&G Boat Rentals, Inc.,

(5th Cir. 1986) (establishing a bright line application rule for Rule 59(e) and Rule 60(b)). Rule 60(b) and 59(e) have significant overlaps, but Rule 59(e) “does not require a showing as onerous as Rule 60(b) would require” to vacate a judgment. See Artemis Seafood, Inc. v. Butcher’s Choice, Inc.,

, *3 (N.D. Tex. 1999) (noting that under Rule 60(b), the movant’s reason for reopening the case must fall into one of several specified categories, such as “excusable neglect” or “surprise,” while Rule 59(e) gives courts broad discretion to decide).

-2- We review the district court’s denial of a Rule 59(e) motion for an abuse of discretion. See

St. Paul Mercury Ins. Co. v. Fair Grounds Corp.,

(5th Cir. 1997).

In assessing a motion to alter or amend a judgment, trial courts have considerable discretion,

but they must balance two judicial imperatives: “the need to bring litigation to an end and the need

to render just decisions on the basis of all the facts.” See Lavespeare v. Niagara Machine & Tool

Works, Inc.,

(5th Cir. 1990), cert. denied,

(1993), rev’d on other

grounds, Little v. Liquid Air Corp.,

(1994) . This balancing test requires courts to

consider (1) the likelihood that the nonmoving party will suffer unfair prejudice if the case is

reopened, and (2) the reasons for the moving party’s default. See id.; see also Artemis Seafood, Inc.

v. Butcher’s Choice, Inc.,

(N.D. Tex. 1999) (denying a 59(e) motion where a

party failed to respond to a summary judgment motion).

In light of this broad discretion given to trial courts, we cannot say that the district court’s

decision was unreasonable. See St. Paul Mercury Ins.,

(“Under [the abuse of

discretion standard], the district court’s decision need only be reasonable.”).

First, we agree with the district court that while reopening the case, by definition, may

prejudice State Fair, it would not unfairly prejudice it. State Fair would only have to pay the legal

costs of responding to the motion. However, as the court noted, the lack of unfair prejudice alone

does not entitle Gonzalez to alter or amend summary judgment. Otherwise, “the prejudice factor

would not be nonexclusive, it would be determinative.” Artemis Seafood,

at *3.

It would also allow parties to ignore a court’s response deadlines, since it is rare that reopening a case

within ten days of summary judgment unfairly prejudices the nonmoving party.

Second, we find that the district court did not abuse its discretion in holding that Gonzalez

-3- had failed to offer valid excuses for her untimely responses. Gonzalez’s attorney had over two weeks

after his January trial had ended to respond to State Fair’s motion or to request an extension. He

did neither. Moreover, negligence by Hernandez or his clerk does not generally constitute a valid

excuse. See, e.g., Edward H. Bohlin Co. v. The Banning Co., Inc.,

(5th Cir. 1993)

(holding that “inadvertent mistake of counsel[, g]ross carelessness, ignorance of rules or ignorance

of law” do not justify granting a Rule 59(e) or 60(b) motion).

The Fifth Circuit has previously affirmed a district court’s denial of a 59(e) motion in similar

circumstances. In Edward H. Bohlin Co, Inc.,

, the plaintiffs had failed to respond

timely to a summary judgment motion because they misinterpreted a local rule. The Fifth Circuit held

that a district court has the discretion to decide “that the need for finality outweighs the need to

render just decisions on the basis of all operable facts” when a plaintiff fails to show a valid reason

for not responding to summary judgment motion.

. Similarly, we hold here that the district

court had the discretion to deny Gonzalez’s motion to alter or amend the judgment.2

AFFIRMED.

2 The district court’s opinion correctly distinguished between Rule 60(b)’s “more onerous” standard (which requires that the movant’s reason fall into one of several specified categories, such as “excusable neglect”) and Rule 59(e)’s less stringent requirement. But then it noted that the “errors that occurred here are not even sufficient to rise to a level of excusable neglect” (emphasis added). To the extent that it may suggest that Rule 59(e)’s requirements are necessarily higher than excusable neglect, we disagree.

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