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Kevin Rollins versus Home Depot USA, Incorporated
Case Number: 20-50736
Judge: James C. Ho
Court: United States Court of Appeals
for the Fifth Circuit
New Orleans, LA- Personal Injury lawyer represented Plaintiff—Appellant with a work injury claim.
Rollins was injured while moving a bathtub for his employer, Home
Depot. He then sued Home Depot in state court. The case was subsequently
removed to federal court.
Counsel for Rollins agreed to receive filings through the district
court’s electronic-filing system via the email address he provided, as
attorneys typically do in federal courts across the country. The parties later
agreed to a scheduling order requiring that all dispositive motions be filed by
May 11, 2020.
On May 7, Home Depot filed its motion for summary judgment.
Rollins’s counsel contends—and Home Depot does not dispute—that the
notification for that filing “was inadvertently filtered into a part of Rollins’
counsel’s firm email system listed as ‘other,’ instead of the main email box
where all prior filings in the case were received.” As a result, counsel did not
see the electronic notification of Home Depot’s motion. Nor did counsel
Case: 20-50736 Document: 00515970595 Page: 2 Date Filed: 08/09/2021
learn of that motion when he contacted Home Depot’s counsel a few days
later to discuss the possibility of a settlement.
The scheduling order imposed a 14-day deadline to file and serve
responses to any motions. After that deadline came and went without any
response from Rollins, the district court reviewed the pleadings, granted
Home Depot’s motion for summary judgment, and entered final judgment
on May 27.
But Rollins’s counsel did not know any of this until June 3. That’s
when counsel reached out to Home Depot’s counsel again to raise the
possibility of settlement. In response, Home Depot’s counsel informed him
that the district court had already entered final judgment.
Rollins filed a motion under Federal Rule of Civil Procedure 59(e) to
alter or amend the court’s judgment against him. The district court denied
the motion. Rollins now appeals.
Rule 59(e) states, in full, that “[a] motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the judgment.” Fed.
R. Civ. P. 59(e). This is “an extraordinary remedy that should be used
sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).
“We review the denial of a Rule 59(e) motion only for abuse of discretion.”
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990).
The text of Rule 59(e) does not specify the available grounds for
obtaining such relief. But our court has explained that Rule 59(e) motions
“are for the narrow purpose of correcting manifest errors of law or fact or
presenting newly discovered evidence”—not for raising arguments “which
could, and should, have been made before the judgment issued.” Faciane v.
Sun Life Assurance Co. of Canada, 931 F.3d 412, 423 (5th Cir. 2019)
Case: 20-50736 Document: 00515970595 Page: 3 Date Filed: 08/09/2021
(quotation omitted). We have further noted that Rule 59(e) allows a party to
alter or amend a judgment when there has been an intervening change in the
controlling law. See Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567–
68 (5th Cir. 2003). None of those conditions are met here.
Rollins contends that the district court abused its discretion when it
denied his Rule 59(e) motion, on the ground that the only reason his counsel
did not know about Home Depot’s motion for summary judgment was due
to a glitch in his email system.
This argument is squarely foreclosed under our precedent. In Trevino
v. City of Fort Worth, the plaintiffs’ counsel failed to file a response to the
defendant’s motion to dismiss because, among other reasons, “defective
antivirus software diverted court emails to a spam folder.” 944 F.3d 567, 570
(5th Cir. 2019) (per curiam). After the district court granted the defendant’s
unopposed motion to dismiss, the plaintiffs sought relief under Rule 59(e).
Id. We rejected the argument, explaining that “[f]ailure to file a response to
a motion to dismiss is not a manifest error of law or fact” under Rule 59(e).
Id. at 571. See also Templet, 367 F.3d at 478–79 (concluding that the district
court did not err in denying Rule 59(e) relief when plaintiffs failed to file a
response to defendants’ motion for summary judgment).
To be sure, we do not question the good faith of Rollins’s counsel. But
it is not “manifest error to deny relief when failure to file was within
[Rollins’s] counsel’s ‘reasonable control.’” Trevino, 944 F.3d at 571. Notice
of Home Depot’s motion for summary judgment was sent to the email
address that Rollins’s counsel provided. Rule 5(b)(2)(E) provides for service
“by filing [the pleading] with the court’s electronic-filing system” and
explains that “service is complete upon filing or sending.” Fed. R.
Civ. P. 5(b)(2)(E). That rule was satisfied here. Rollins’s counsel was
plainly in the best position to ensure that his own email was working
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properly—certainly more so than either the district court or Home Depot.
Moreover, Rollins’s counsel could have checked the docket after the agreed
deadline for dispositive motions had already passed. See Trevino, 944 F.3d at
571 (stressing that “Plaintiffs had a duty of diligence to inquire about the
status of their case.”); Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311,
1317 (Fed. Cir. 2015) (no abuse of discretion where district court found it
“inexcusable for . . . counsel to fail to read all of the underlying orders they
received, or—at minimum—to monitor the docket for any corrections or
additional rulings”); Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir.
2004) (describing counsel’s argument that the electronic-filing system was
to blame as “an updated version of the classic ‘my dog ate my homework’
In sum, the district court did not abuse its discretion in denying the
Rule 59(e) motion.
Rollins’s Rule 59(e) motion in the district court did not address the
merits of the district court’s summary judgment decision. He argues for the
first time on appeal that the district court should have granted his Rule 59(e)
motion so that he could “show that there is a fact question on whether Home
Depot breached its duty to him, as well as show that he was not the sole
proximate cause of his injuries.” This is the first time that Rollins challenges
the merits of the district court’s judgment. Home Depot responds that the
argument is “waived.” So this appeal presents the familiar question whether
a court should consider arguments raised for the first time on appeal.
“The terms waiver and forfeiture—though often used
interchangeably by jurists and litigants—are not synonymous.” Hamer v.
Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017). “Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the
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‘intentional relinquishment or abandonment of a known right.’” United
States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)).
A party forfeits an argument by failing to raise it in the first instance in
the district court—thus raising it for the first time on appeal—or by failing to
adequately brief the argument on appeal. See United States v. Zuniga, 860
F.3d 276, 284 n.9 (5th Cir. 2017) (“Failure to raise a claim to the district
court ‘constitutes a forfeiture, not a waiver, of that right for the purposes of
appeal.’”) (quoting United States v. Chavez-Valencia, 116 F.3d 127, 130 (5th
Cir. 1997)); Norris v. Causey, 869 F.3d 360, 373 n.10 (5th Cir. 2017) (noting
that a party forfeits an argument by failing to adequately brief it); Fed. R.
App. P. 28(a)(8)(A) (requiring appellant’s argument to contain
“appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which appellant relies”).1
Rollins forfeited his argument that a fact dispute precluded summary
judgment by failing to raise it first before the district court. We do not
ordinarily consider issues that are forfeited because they are raised for the
first time on appeal.
Of course, there are exceptions. See Bayou Liberty Ass’n v. U.S. Army
Corps of Eng’rs, 217 F.3d 393, 398 (5th Cir. 2000). Jurisdictional arguments
There are numerous ways that a party can fail to adequately brief an argument.
See, e.g., JTB Tools & Oilfield Servs., L.L.C. v. United States, 831 F.3d 597, 601 (5th Cir.
2016) (failure to “offer any supporting argument or citation to authority” or to “identify
relevant legal standards and any relevant Fifth Circuit cases”) (quotation omitted); United
States v. Rojas, 812 F.3d 382, 407 n.15 (5th Cir. 2016) (failure to offer record citations);
United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006) (“A single conclusory sentence
in a footnote is insufficient to raise an issue for review.”); Yohey v. Collins, 985 F.2d 222,
224–25 (5th Cir. 1993) (failure to include argument in the body of the brief); Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (failure to address the
district court’s analysis and explain how it erred).
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are one obvious exception. “[S]ubject-matter jurisdiction, because it
involves a court’s power to hear a case, can never be forfeited or waived.”
United States v. Cotton, 535 U.S. 625, 630 (2002).
In addition, we’ve said that “an issue will not be addressed when
raised for the first time on appeal unless it is a purely legal matter and failure
to consider the issue will result in a miscarriage of justice.” Essinger v. Liberty
Mut. Fire Ins. Co., 534 F.3d 450, 453 (5th Cir. 2008). See also Pegues v.
Morehouse Par. Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (“It is axiomatic
that an issue not raised in the trial court will not be considered on appeal
unless it involves a pure question of law, and our refusal to address it would
result in a miscarriage of justice.”).
But what constitutes a pure legal question or a miscarriage of justice is
“a question with no certain answer.” Essinger, 534 F.3d at 453. As a result,
appellate courts have considerable discretion in deciding whether to consider
an issue that was not raised below.
As commentators have observed, courts of appeals use this discretion
inconsistently. See, e.g., Amanda Frost, The Limits of Advocacy, 59 Duke
L.J. 447, 463 (2009) (“Federal circuit courts . . . act with little rhyme or
reason” when deciding to consider forfeited arguments); Barry A. Miller,
Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity
to Be Heard, 39 San Diego L. Rev. 1253, 1260 (2002) (noting “[t]he
absence of a consistent principle”); Robert J. Martineau, Considering New
Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand. L. Rev.
1023, 1061 (1987) (analyzing cases and concluding that “[t]he only consistent
feature of the current system is its inconsistency”).
2 The “gorilla rule” “refers to unrestrained discretion, analogous to the right of a
600 or 800 pound gorilla to sleep anywhere he wants.” Essinger, 534 F.3d at 453. See also
Case: 20-50736 Document: 00515970595 Page: 7 Date Filed: 08/09/2021
We must be on guard for the risk of judicial bias when it comes to
discretionary practices such as addressing forfeited issues. As Justice
Clarence Thomas has observed, “judges should adopt principles . . . that
reduce judicial discretion. Reducing discretion is the key to fostering judicial
impartiality. The greater the room for judicial discretion, the greater the
temptation to write one’s personal opinions into the law.” Clarence
Thomas, Francis Boyer Lecture at the AEI Annual Dinner: Be Not Afraid (Feb.
13, 2001), available at http://www.aei.org/publication/be-not-afraid. See
also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev.
1175, 1180 (1989) (“Only by announcing rules do we hedge ourselves in.”).
It would surely be unacceptable, for example, if courts granted
motions for extension of deadlines only for prosecutors and not for criminal
defendants. Addressing forfeited issues in a biased manner is no different.
Courts should not selectively address forfeited arguments just because they
have sympathy for a particular litigant.
We see no principled basis for addressing Rollins’s forfeited argument
here. Whether Rollins would have been able to establish a fact dispute is
plainly not a pure question of law. Nor is there manifest injustice to correct
here—nothing prevented Rollins from alleging a fact dispute in the district
Outcome: For the foregoing reasons, we affirm