Chu v. Texas Southern University

Filing 26

MEMORANDUM AND ORDER; Plaintiff's 24 MOTION for Relief from Judgment is in all things DENIED.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAMBIS CHU,

§

§
§

Plaintiff,
v.

§
§

TEXAS SOUTHERN UNIVERSITY,

§
§

Defendant.

CIVIL ACTION NO. H-10-2582

§
§

MEMORANDUM AND ORDER
Pending is Plaintiff's Motion for Relief from Summary Judgment
(Document No. 24), under Rules 59 (e) and 60 of the Federal Rules of
Civil Procedure.
Generally, there are four grounds upon which a Rule 59 (e)
motion to alter or amend judgment may be granted:

(1) the judgment

was based on a manifest error of fact or law; (2) the movant
presents newly discovered or previously unavailable evidence;
(3) the need to prevent manifest injustice; or (4) an intervening
change in controlling law. See Schiller v. Phvsicians Res. Group,
I

Inc

.

342 F.3d 563, 567-68 (5th Cir. 2003) .

A Rule 59 (e) motion

"cannot be used to raise arguments which could, and should, have
been made before the judgment issued."
omitted).

- at 567 (citation
Id.

Under Rule 60(b), a district court may relieve a party from
final judgment on the basis of (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new
trial under Rule 59(b); (3) fraud, misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; ( 5 ) the
judgment has been satisfied, released, or discharged; or (6) "any
other reason that justifies relief." FED. R. CIV. P. 60 (b). Relief
under Rule 60 (b) is an extraordinary remedy;

\\

[t]
he desire for a

judicial process that is predictable mandates caution in reopening
judgments."

In re Pettle, 410 F.3d 189, 191 (5th ~ i r .2005)

(citing Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998))

.

With regard to "excusable neglect," the Fifth Circuit explained:
[A] party cannot have relief under Rule 60(b) (1) merely
because he is unhappy with the judgment. Instead he must
make some showing of why he was justified in failing to
avoid mistake or inadvertence. Gross carelessness is not
enough. Ignorance of the rules is not enough, nor is
ignorance of the law.
699 F.2d 693, 695 (5th Cir. 1983),
Chick Kam Choo v. Exxon C o r ~ . ,
cert. denied, 104 S. Ct. 98 (1983) (citation omitted).
Plaintiff asserts that Defendant did not give proper notice of
its motion for summary judgment to Plaintiff, which was filed
October 31, 2011, and contends that "failure to oppose the motion

was due to surprise and excusable neglect ."I

Plaintiff admits,

however, that he received notice of the summary judgment motion on
an unspecified day in December 2011.

Assuming Defendant received

notice on the last day of December, 2011, he still failed to file
a response in opposition or move for an enlargement of time to do
so within 21 days after receiving the motion.

See L.R. 7.3.

Moreover, it is evident that if Plaintiff did not receive notice of
the motion when

it was

filed

in October, such was

due to

Plaintiff's counsel's failure to abide the Local Rules mandating
electronic filing in the Southern District of Texas.'

Plaintiff's

attorneys were provided the "Clerk's Notice of Mandatory Electronic
Filing" (Document No. 4) , dated July 22, 2010, that "attorneys are
required to file all complaints, initial papers, motions, memoranda
of law, briefs, and other pleadings and documents in connection
with a civil case electronically, unless permitted otherwise by the
presiding J ~ d g e . "Defendant properly filed its Motion for Summary
~

Document No. 24 f 5.

' "Attorneys admitted to the bar of this Court, as well as
those admitted pro hac vice, are required to register as Filing
Users of the Court's Electronic Filing System. . . . Registration
as a Filing User constitutes consent to electronic service of all
documents as provided in these procedures and in accordance with
Rule Fed. R. Civ. P. 5 (b)(2)(D)." Administrative Procedures for
Electronic Filinq in Civil and Criminal Cases, S.D. Tex. L.A.R.
2 (A) (Jan. 1, 2007) .
Document No. 4. This Notice was sent because Plaintiff had
previously filed a paper document in violation of the requirement
for electronic filing. Plaintiff's attorney who did so, Andre L.
Ligon, also ignored this Court's Order Denying Motion for Admission

Judgment electronically, and if Plaintiff's counsel had complied
with

this requirement, they

(except for Mr. Ligon, who was

disbarred in this Court) would have received the motion for summary
judgment the day it was filed.
After careful review of Plaintiff's motion, the Court finds
that Plaintiff presents no new arguments or reasons that could not
have been advanced and submitted in a timely briefing.

Counsel

disregarded the Court's rules, the Notice of Mandatory Electronic
Filing sent by the Clerk, and the Order of this Court denying
Mr. Ligon's motion to be admitted pro h a c vice.

The failures of

Plaintiff's counsel appear at times intentional, and at a minimum
are inexcusable, careless, and negligent. There is no just reason
to set aside the prior ruling. Accordingly, it is

Pro Hac Vice (Document No. 9 ) , dated September 20, 2010. The Court
observed in that Order that Chief United States Judge Karen K.
Brown on May 18, 2005, permanently barred Mr. Ligon from practicing
before the Court without leave of Court. Mr. Ligon thereafter was
denied a login and password for electronic filing in this Court
because he was permanently barred from practice in the United
States Bankruptcy Court for this district and, under our reciprocal
policy, he is therefore barred from the United States District
Court in this district. The Clerk of Court advised Mr. Ligon that
for reinstatement he would be required to file a petition for
reinstatement in accordance with Rule 6 of the Rules of Discipline
of this Court. He has not done so. Other counsel then appeared
for Plaintiff, which makes it all the more astonishing that Mr.
Ligon would purport to sign Plaintiff Is late response to the Motion
for Summary Judgment. See Document No. 23, at 13.

ORDERED that Plaintiff's Motion for Relief

from Summary

Judgment (Document No. 24) is in all things DENIED.
The Clerk shall notify all parties and provide them with a
signed copy of this Order.
SIGNED at Houston, Texas, on this

-.8&&

2m

y of February, 2012.

ERLEIN, JR .
UNITED ?E#S
?Y%
DISTRICT JUDGE