Dillion v. Martin

Case: 24-30360 Document: 42-1 Page: 1 Date Filed: 10/28/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-30360 Summary Calendar FILED ____________ October 28, 2024 Lyle W. Cayce Gerald Dillion, Clerk Plaintiff—Appellant, versus Jimmie Martin, Jr.; Argie Mark, Jr.; National Fire & Marine Insurance Company, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:23-CV-1727 ______________________________ Before Davis, Stewart, and Southwick, Circuit Judges.

Per Curiam: * After disregarding eleven district-court orders and notifications over a span of seven months, Plaintiff-Appellant Gerald Dillion appeals an order denying reconsideration of a final judgment that dismissed his personal- injury case. We find no abuse of discretion and AFFIRM.

Case: 24-30360 Document: 42-1 Page: 2 Date Filed: 10/28/2024

No. 24-30360

I.

Dillion sued Defendant-Appellee National Fire & Marine Insurance Company and its insureds, Jimmie Martin, Jr. and Argie Mark, Jr., in state court for injuries allegedly sustained in a traffic accident. National Fire removed the case to federal district court on May 23, 2023, invoking the court’s diversity jurisdiction. The next day, the district court suspended Dillion’s counsel, Barry W. Bolton, from its bar rolls for failing to pay triennial dues. The suspension entered after five unanswered court notifications of the deficiency over the preceding five months.

Bolton did not remedy the suspension. So, on July 10, 2023, the court issued an order requiring Bolton to show cause why he should not be sanctioned for failing to comply with the court’s five notifications. It also ordered Bolton to “immediately remedy his suspension status … no later than” July 17. Citing Federal Rule of Civil Procedure 41(b), the court admonished, “FAILURE TO TIMELY REPLY TO THIS ORDER MAY LEAD TO SANCTIONS, INCLUDING DISMISSAL OF THIS CASE.” Bolton did not comply and remained in suspended status.

On August 3, the district court issued a second order sanctioning Bolton $270 and withdrawing him as counsel in the case. The order—which the court sent to Dillion’s personal address by U.S. Mail—granted Dillion until August 31 to enroll new counsel or state that he intended to proceed pro se. This order cautioned, “Failure to timely comply with this order, other Court ordered deadlines, and failure to timely review the Clerk of Court record in this action will lead to dismissal of complaint, without prejudice.” Neither Dillion nor Bolton timely complied.

Only after the court’s August 31 deadline passed did Bolton remedy his suspension, pay the court’s sanction, and move to reenroll as Dillion’s counsel of record. In deciding Bolton’s motion, the court noted “dismissal Case: 24-30360 Document: 42-1 Page: 3 Date Filed: 10/28/2024

No. 24-30360 would be justified” given the contumacy. In lieu of dismissal, however, the court ordered Bolton to pay a second, $300 sanction to promote “future compliance with court orders” and allowed Bolton to reenroll as Dillion’s counsel.

Bolton apparently satisfied this second sanction, which prompted a third court order on October 16. There, the court directed Dillion and Bolton to serve process on the individual defendants by October 25. “Failure to do so will result in the DISMISSAL of the unserved Defendants without further notice.” Neither Dillion nor Bolton responded, so the court dismissed the individual defendants on November 8.

The same day, the court set a scheduling conference for November 28. Bolton did not attend the conference, which provoked a fourth order directing Bolton to show cause by December 5 why he shouldn’t be sanctioned for his unexcused absence. Bolton, again, did not comply.

Neither Bolton nor Dillion complied with the court’s scheduling order, either, which required exchange of Rule 26 disclosures on December 12. And neither opposed National Fire’s two motions for involuntary dismissal. On January 5, 2024, the court granted National Fire’s second-filed unopposed motion for the reasons stated in the motion itself and “pursuant to Fed. R. Civ. P. 4(m), Fed. R. Civ. P. 41(b), and the multiple conspicuous warnings of dismissal” in its prior orders.

Dillion sought reconsideration on January 31 and later filed a “Motion to Reconsider Order of Dismissal with Substitute Memorandum in Support of Motion.” There, Dillion asserted for the first time that Bolton had received none of the court’s notices, filings, or orders because he’d not maintained a current e-mail address with the court’s Case Case: 24-30360 Document: 42-1 Page: 4 Date Filed: 10/28/2024

No. 24-30360

Management/Electronic Case Files System (“CM/ECF System”). 1 Noting “[t]he Federal Rules do not recognize a ‘motion for reconsideration,’” the district court applied our precedent treating such motions as “either a motion ‘to alter or amend’ under Rule 59(e) or a motion for ‘relief from judgment’ under Rule 60(b)” and found no grounds to reopen the case under either rule. This appeal followed. 2

Case: 24-30360 Document: 42-1 Page: 5 Date Filed: 10/28/2024

No. 24-30360

II.

We regard a motion for reconsideration as one filed under Rule 59(e) or Rule 60(b) depending “on the time at which the motion is served.” 3 If “the motion is served within [28] days of the rendition of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b).” 4 Here, Dillion sought reconsideration within 28 days of the January dismissal, so we review for abuse of discretion under Rule 59(e). 5 Rule 59(e) “allows a court to alter or amend a judgment to (1) accommodate an intervening change in controlling law, (2) account for newly discovered evidence, or (3) correct a manifest error of law or fact.” 6 Dillion identifies none of these on appeal—no intervening change in law, no newly- discovered evidence, and no manifest error of law or fact. Rather, he cites and employs page-long block quotes from a hodgepodge of cases with no bearing on appellate review of Rule 59(e) motions.

Regardless, our prior decisions foreclose relief. In Trevino v. City of Fort Worth, the plaintiffs suffered a series of “break downs” in their attorney’s “system of receiving notice of court filings,” something Case: 24-30360 Document: 42-1 Page: 6 Date Filed: 10/28/2024

No. 24-30360 concededly within counsel’s control. 7 Due to these glitches, counsel did not receive notice from the court’s CM/ECF System that a Rule 12(b)(6) motion had been filed. 8 Even though the Trevino plaintiffs had actively prosecuted their claims throughout the litigation—even appealing an earlier order to this Court—the district court granted the unopposed motion and dismissed.

Realizing their mistake after entry of judgment, the plaintiffs timely, though unsuccessfully, moved for relief under Rule 59(e). On appeal, they argued their counsel’s “break downs” constituted “manifest error of law or fact” under the rule. We disagreed: “Failure to file a response to a motion to dismiss is not a manifest error of law or fact” under Rule 59(e). 9 “Nor is it a manifest error to deny relief when failure to file was within Plaintiffs’ counsel’s ‘reasonable control.’ Plaintiff’s counsel admittedly violated the local rules.” 10 So too here: Dillion did not oppose National Fire’s motion to dismiss because his counsel violated district-court orders and local rules pertaining to the court’s CM/ECF System—things uniquely within Dillion’s and his counsel’s “reasonable control.” 11 That cannot sustain a Rule 59(e) motion.

Case: 24-30360 Document: 42-1 Page: 7 Date Filed: 10/28/2024

No. 24-30360

While Dillion urges reversal under our Rule 41(b) caselaw, we see no principled reason to diverge from Trevino’s lessons here. Both the Trevino plaintiffs and Dillion lost their claims because they failed to respond to motions to dismiss their opponents properly filed and served through a district court’s CM/ECF System. Both the Trevino plaintiffs and Dillion timely filed Rule 59(e) motions. Both blamed technological “break downs” for their failure to oppose the motions to dismiss. The only difference is the Trevino plaintiffs had not themselves received in the mail a cautionary order to exercise diligence; nor had they violated eleven court notices and orders leading up to their dismissal. Of course, a Rule 12(b)(6) decision is a disposition on the merits whereas a Rule 41(b) decision is not. But Dillion has not identified error in or otherwise addressed the district court’s findings of aggravating factors warranting dismissal under our Rule 41(b) precedent. 12 In failing to do so, it “is the same as if he had not appealed that judgment.” 13 AFFIRMED.