Case: 12-11219       Document: 00512416661         Page: 1     Date Filed: 10/23/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 23, 2013

                                     No. 12-11219                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WAYNE BRITTINGHAM; TANYA BRITTINGHAM,

                                                  Plaintiffs - Appellants
v.

WELLS FARGO BANK, N.A.; FEDERAL HOME LOAN MORTGAGE
CORPORATION,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-323


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Wayne and Tanya Brittingham (“Plaintiffs”) appeal both the district
court’s grant of summary judgment in favor of Wells Fargo Bank, N.A. and
Federal Home Loan Mortgage Corporation (collectively, “Defendants”) on their
various state law claims and the district court’s denial of their motion for relief




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                        No. 12-11219

pursuant to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”).1 We DISMISS
their appeal of the district court’s summary judgment order and final judgment
and AFFIRM the district court’s denial of their Rule 60(b) motion.
                                       I. Background
       This lawsuit arose from the foreclosure of a mortgage on a property
Plaintiffs financed through Wells Fargo.                 Originally filed in state court,
Defendants removed the action to federal court and moved for summary
judgment.
       On July 31, 2012, the district court granted summary judgment in favor
of Defendants and entered final judgment, dismissing each of Plaintiffs’ claims
with prejudice. Pursuant to Rule 60(b), Plaintiffs filed a motion for relief on
September 23, 2012, which the district court denied on November 8, 2012.
Plaintiffs appealed the district court’s grant of summary judgment and denial
of Rule 60(b) relief on December 7, 2012. Defendants moved to dismiss the
appeal for lack of jurisdiction.
                             II. Summary Judgment Order
       To the extent that Plaintiffs appeal the district court’s grant of summary
judgment, we DISMISS their appeal for lack of jurisdiction. See Bowles v.
Russell, 

, 209-10 (2007). Plaintiffs failed to appeal the grant of
summary judgment within the time required by Federal Rule of Appellate
Procedure 4(a)(1). Their motion for Rule 60(b) relief did not extend the time to
appeal the district court’s grant of summary judgment, because Plaintiffs did not
move for Rule 60(b) relief within twenty-eight days of the grant of summary
judgment. See FED. R. APP. P. 4(a)(4)(A)(vi). Because their appeal was not


       1
          While Plaintiffs primarily focus in their brief on the district court’s grant of summary
judgment, they maintain that they are “technically” appealing only the district court’s denial
of their Rule 60(b) motion. However, Plaintiffs’ notice of appeal makes plain that they are
appealing both “the order denying [their Rule 60(b)] motion” and “the judgment dismissing
[Plaintiffs’] case with prejudice.”

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                                       No. 12-11219

timely, we have no jurisdiction to review the summary judgment. See Bowles,
551 U.S. at 209 (“This Court has long held that the taking of an appeal within
the prescribed time is mandatory and jurisdictional.” (internal quotation marks
omitted)); see also Williams v. Chater, 

, 705 (5th Cir. 1996) (“[A]n
appeal from the denial of Rule 60(b) relief does not bring up the underlying
judgment for review.”).2
                                  III. Rule 60(b) Order
       Plaintiffs’ appeal was timely as to the denial of Rule 60(b) relief, so we
address that question on the merits. “[T]he decision to grant or deny relief
under Rule 60(b) lies within the sound discretion of the district court and will be
reversed only for abuse of that discretion.” Edwards v. City of Houston, 

, 995 (5th Cir. 1996) (en banc). Plaintiffs argue that the district court abused
its discretion in denying them relief under Rule 60(b)(1) and Rule 60(b)(6).
       Rule 60(b)(1) provides that a court “may relieve a party or its legal
representative from a final judgment, order, or proceeding,” on the grounds of
“mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV. P. 60(b)(1).
Plaintiffs argue that their failure to file a timely motion to reconsider and vacate
the summary judgment order due to a “calendar error” at their counsel’s firm
constitutes “excusable neglect.”
       We have previously held that a district court does not abuse its discretion
when it denies a Rule 60(b)(1) motion where the proffered justification for relief
is the careless mistake of counsel. See Edward H. Bohlin Co., Inc. v. Banning
Co., Inc., 

, 356-57 (5th Cir. 1993). “In fact, a court would abuse its


       2
         Plaintiffs did not seek to extend the time for appeal by filing a motion under Federal
Rule of Appellate Procedure 4(a)(5). Instead, they sought to challenge the underlying
judgment, which is properly a matter of Rule 60(b), but does not extend the time for filing an
appeal of the original judgment. See Dunn v. Cockrell, 

, 493-94 (5th Cir. 2002)
(“Our cases sensibly refuse to allow a litigant to circumvent [Rule 4(a)(5)] by invoking Rule
60(b) solely for the purpose of extending the time to appeal.”).

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                                         No. 12-11219

discretion if it were to reopen a case under Rule 60(b)(1) when the reason
asserted as justifying relief is one attributable solely to counsel’s carelessness
with or misapprehension of the law or the applicable rules of court.” Id. at 357
(emphasis added); see also Buckmire v. Mem’l Hermann Healthcare Sys. Inc., 456
F. App’x 431, 432 (5th Cir. 2012) (affirming district court’s ruling that an
attorney’s failure to calendar a court deadline did not constitute “excusable
neglect”)3 (unpublished). Accordingly, we cannot conclude that the district court
abused its discretion in denying Rule 60(b)(1) relief.4
       Plaintiffs also seek relief under Rule 60(b)(6). However, “the catch-all
clause of Rule 60(b)(6) cannot be invoked when relief is sought under one of the
other grounds enumerated in Rule 60.” Hess v. Cockrell, 

, 215 (5th
Cir. 2002) (quotation marks omitted). Thus, it was not an abuse of discretion to
deny Rule 60(b)(6) relief.
       Plaintiffs’ appeal of the summary judgment order and final judgment is
DISMISSED, and the              district court’s order denying Rule 60(b) relief is
AFFIRMED.




       3
         As Buckmire explains, Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 

, 397-98 (1993), does not mandate relief for all attorney mistakes, only “excusable” neglect.
456 F. App’x at 432 n.1.
       4
         Plaintiffs assert that they should not be penalized for the careless mistake of their
counsel. However, “it has long been held, particularly in civil litigation, that the mistakes of
counsel, who is the legal agent of the client, are chargeable to the client,” especially “where the
timeliness of postjudgment filings is concerned.” Pryor v. U.S. Postal Serv., 

, 288
(5th Cir. 1985) (citing Link v. Wabash R.R. Co., 

, 1390 & n.10 (1962).

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