                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 20, 2005
                             No. 04-15780                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 00-07065-CV-CMA

PAUL K. GUNDOTRA,


                                                           Plaintiff-Appellant,

                                  versus

UNITED STATES DEPARTMENT OF
THE INTERNAL REVENUE SERVICE,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                           (December 20, 2005)


Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Paul K. Gundotra appeals the denial of his motion for rehearing. Gundotra

argues that he is entitled to relief from final judgment based on newly discovered

evidence. Because Gundotra has not met his burden for relief under Federal Rule

of Civil Procedure 60(b), we affirm.

      On April 10, 2000, Gundotra, PKG Foundation Corporation, and the

Commissioner of the Internal Revenue Service executed a closing agreement that

discharged a federal tax lien on certain real property in exchange for Gundotra’s

payment of $78,469.79 in taxes and penalties. On July 28, 2000, Gundotra filed an

action in federal district court that sought the return of his payment on the ground

that PKG had no beneficial interest in the real property although it held legal title.

The district court ruled in favor of the government and entered final judgment on

April 17, 2001. We affirmed and held, “The district court did not err in granting

summary judgment on the pleadings, since both the relevant deed and Closing

Agreement executed by Gundotra make clear the subject property was owned by

PKG.” Gundotra v. U.S. Dep’t of IRS, No. 01-12761, slip op. at 4 (11th Cir. Jan.

17, 2002).

      On August 20, 2003, Gundotra moved the district court for rehearing and

alleged that he uncovered evidence that PKG did not own the property on which

the IRS had placed the lien while “filling [sic] away [his] legal papers.” He argued



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that this evidence proved that the property was owned by a different entity also

named PKG Foundation Corporation but incorporated in the British Virgin Islands.

After Gundotra twice amended his motion, the district court ruled on the motion

and held that Gundotra failed to satisfy the requirements for relief from a final

judgment under Federal Rule of Civil Procedure 60(b). The district court

alternatively relied on the law of the case doctrine and held that it was bound by

the previous decision of this Court that found PKG was the owner of the property.

Gundotra appeals the denial of his motion.

      This Court reviews an “order denying relief under Rule 60(b) for abuse of

discretion.” Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300, 1309

(11th Cir. 2003). Federal Rule of Civil Procedure 60(b) provides “the court may

relieve a party . . . from a final judgment, order, or proceeding for the following

reasons: . . . (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) . . . .” Fed. R.

Civ. P. 60(b). A motion for relief from final judgment based on newly discovered

evidence must be made “not more than one year after the judgment, order, or

proceeding was entered or taken.” Id. A Rule 60(b)(2) motion made more than

one year after final judgment, however, may be entertained as an independent




                                           3
action, id., but only “to prevent a grave miscarriage of justice.” United States v.

Beggerly, 542 U.S. 38, 47, 118 S. Ct. 1862, 1868 (1998).

      For a district court to grant relief based upon newly discovered evidence

under Rule 60(b)(2), the moving party must satisfy a five-part test: “(1) the

evidence must be newly discovered since the trial; (2) due diligence on the part of

the movant to discover the new evidence must be shown; (3) the evidence must not

be merely cumulative or impeaching; (4) the evidence must be material; and (5) the

evidence must be such that a new trial would probably produce a new result.”

Waddell, 329 F.3d at 1309. “A motion for a new trial under Rule 60(b)(2) is an

extraordinary motion and the requirements of the rule must be strictly met.” Id.

(quoting Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000)).

      Gundotra failed to meet his burden. “[E]vidence cannot be ‘newly

discovered’ under Rule 60 if it is in the possession of the moving party or that

party’s attorney prior to the entry of judgment.” Taylor v. Texgas Corp., 831 F.2d

255, 259 (11th Cir. 1987). Because Gundotra concedes that he had the evidence in

his possession throughout the litigation, the district court did not abuse its

discretion in denying the motion. Further, Gundotra’s possession of the document

during the litigation counsels against a finding of “grave miscarriage of justice”

that would entitle him to relief in the light of his failure to move the district court



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for reconsideration within a year of final judgment. Beggerly, 542 U.S. at 47, 118

S. Ct. at 1868.

      Because we conclude that the district court did not abuse its discretion in

denying Gundotra’s Rule 60(b)(2) motion, we need not address whether the district

court was bound to do so under the law of the case doctrine. The order denying

Gundotra’s motion for relief from final judgment is

      AFFIRMED.




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