                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 16 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    JAMES DALE KNIGHT,

                Plaintiff-Appellant,

    v.                                                   No. 04-8000
                                                  (D.C. No. 02-CV-1050-ABJ)
    NINA R. KNIGHT; JANIECE I.                             (D. Wyo.)
    KNIGHT; WILLIAM J. KNIGHT;
    MARGRET KNIGHT,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff James Dale Knight, proceeding pro se, appeals the order denying

his motion for post-judgment relief in this case seeking adjudication of ownership

of real property in Wyoming and Alaska. We affirm.

                                    Motion to Dismiss

       As a preliminary matter, we deny defendants’ motion to dismiss the appeal

on the ground that this court did not grant permission for the appeal. The district

court entered a final judgment. Consequently, plaintiff was not required to obtain

permission to appeal, and this court has jurisdiction. 28 U.S.C. § 1291.

                                           Merits

       The district court granted defendants’ motion to dismiss the complaint

because plaintiff’s claims to the real property in question were based on oral

agreements that were not to be performed within one year. The court held that the

Wyoming statute of frauds, Wyo. Stat. Ann. § 1-23-105, rendered the alleged

agreements void and unenforceable. Accordingly, the court dismissed plaintiff’s

case for failure to state a claim upon which relief can be granted.   1



       Almost a year later, plaintiff filed his motion to reconsider under Fed. R.

Civ. P. 60(b)(2) & (3), on the grounds of newly discovered evidence and



1
       This was the second case plaintiff filed in the Wyoming federal district
court against these defendants seeking title to the real property in question. The
prior action, case No. 02-CV-1017-J, was also dismissed.     See R. doc. 18, at 3
n.1.

                                             -2-
misrepresentation or other misconduct of an adverse party. “We review a district

court’s denial of a Rule 60(b) motion for an abuse of discretion.”   Cummings v.

Gen. Motors Corp. , 365 F.3d 944, 954 (10th Cir. 2004). The district court’s

ruling will be upheld unless it represents “a definite, clear or unmistakable error.”

Id. at 955. Relief will be granted under Rule 60(b) only in exceptional

circumstances.      Id. at 954.

       The newly discovered evidence plaintiff claims entitles him to relief is

“escrow laws and events presented” in a quiet-title action in an Alaska state court.

Reply Br. at 5. It is clear that this evidence existed prior to the dismissal. Even

if plaintiff asserts he was unaware of it before his case was dismissed, he has not

made the requisite showing that he had made a diligent attempt to discover it

before dismissal.     See Webber v. Mefford , 43 F.3d 1340, 1345 (10th Cir. 1994)

(stating evidence available to plaintiffs before judgment would not support

reconsideration where there was no showing that counsel made diligent yet

unsuccessful attempt to discover it). Moreover, plaintiff has not demonstrated

how this evidence warrants relief from dismissal.      See Computerized Thermal

Imaging, Inc. v. Bloomberg, L.P.    , 312 F.3d 1292, 1300 (10th Cir. 2002).

Consequently, we find no abuse of discretion in denying the motion to reconsider

on this ground.




                                            -3-
       Plaintiff’s second ground to set aside the judgment is misrepresentation or

misconduct by an adverse party. He apparently reasserts his claim that defendants

fraudulently deprived him of his interest in the subject real property. He also

complains that the district court did not address his fraud claim in its order of

dismissal. These arguments challenge the dismissal order and should have been

brought in a direct appeal. “A Rule 60(b) motion is not intended to be a

substitute for a direct appeal.”    Servants of Paraclete v. Does , 204 F.3d 1005,

1009 (10th Cir. 2000). In addition, plaintiff has failed to allege that “the

challenged behavior . . . substantially . . . interfered with [his] ability fully and

fairly to prepare for and proceed at trial.”     Cummings , 365 F.3d at 955.

Therefore, we hold that the district court did not abuse its discretion in denying

reconsideration on this ground.

       The judgment of the district court is AFFIRMED. Defendants’ motion to

dismiss the appeal is DENIED. The mandate shall issue forthwith.



                                                         Entered for the Court



                                                         Mary Beck Briscoe
                                                         Circuit Judge




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