     Case: 15-30679      Document: 00513379537         Page: 1    Date Filed: 02/12/2016




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

                                    No. 15-30679                           FILED
                                  Summary Calendar                  February 12, 2016
                                                                      Lyle W. Cayce
                                                                           Clerk
NARISSA DAWN BRADFORD,

              Plaintiff - Appellant

v.

THE LAW FIRM OF GAUTHIER, HOUGHTALING & WILLIAMS, L.L.P.;
JAMES M. WILLIAMS, Esquire; EARL G. PERRY, Esquire,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-2407


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       In February 2012, Plaintiff–Appellant Narissa Bradford retained
Defendants–Appellees Gauthier, Houghtaling & Williams, L.L.P., James
Williams, and Earl Perry (collectively, “GHW”) to assist in an ongoing civil suit
in an Italian court brought by Bradford against her former companion. After
the Italian civil suit was unsuccessful, Bradford filed the present pro se action


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30679
against GHW, alleging that GHW had committed legal malpractice during the
course of its representation. 1 On September 8, 2014, the district court granted
GHW’s motion for summary judgment, dismissing Bradford’s claims with
prejudice. On May 15, 2015, Bradford filed a Rule 60(b) motion, requesting
relief from the earlier judgment on the grounds of newly discovered evidence,
fraud by GHW, and any other reason that justifies relief. The district court
denied the Rule 60(b) motion, and Bradford timely appeals that denial. 2
        “[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 Hous., 78 F.3d 983, 995 (5th Cir. 1996) (en
banc). Bradford argues that the district court abused its discretion in denying
her relief on the grounds of “newly discovered evidence,” fraud, and “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(2)–(3), (6). We disagree.
       First, in order to prevail on the grounds of newly discovered evidence, “a
movant must demonstrate: (1) that [she] exercised due diligence in obtaining
the information [and] (2) that the evidence is material and controlling and
clearly would have produced a different result if presented before the original
judgment.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005)



       1  While Bradford’s complaint does not expressly allege a claim for legal malpractice,
“[a] pro se complaint is to be construed liberally.” Johnson v. Atkins, 999 F.2d 99, 100 (5th
Cir. 1993). Bradford’s amended complaint relies on certain actions taken, or failures to take
action, by GHW during its representation of Bradford. Therefore, like the district court, we
construe her complaint as raising a legal malpractice claim against GHW. See La. Stat. Ann.
§ 9:5605 (noting that an action for legal malpractice may be “based upon tort, or breach of
contract, or otherwise”).
        2 Bradford filed her Rule 60(b) motion eight months after the district court entered

final judgment, and therefore “it did not restart the time limit for filing a timely notice of
appeal from the dismissal of [her] suit.” Chhim v. Univ. of Hous., 582 F. App’x 406, 406 (5th
Cir. 2014) (per curiam) (unpublished); see also Fed. R. App. P. 4(a)(4)(A)(vi). Bradford timely
appealed the district court’s denial of Rule 60(b) relief, but “an appeal from the denial of Rule
60(b) relief does not bring up the underlying judgment for review.” Williams v. Chater, 87
F.3d 702, 705 (5th Cir. 1996). We therefore only consider Bradford’s appeal of the district
court’s denial of the Rule 60(b) motion.
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                                      No. 15-30679
(quoting Goldstein v. MCI WorldCom, 340 F.3d 238, 257 (5th Cir. 2003)). In
particular, the movant must have “used due diligence to discover the evidence
at the time of trial.” Johnson Waste Materials v. Marshall, 611 F.2d 593, 597
(5th Cir. 1980) (emphasis added). Bradford has failed to demonstrate that she
exercised due diligence because the “newly discovered evidence” consists of
documents and emails that were in the possession of Marco Chiari, Bradford’s
Italian counsel (and GHW’s former co-counsel) in the Italian civil suit.
Bradford has provided no explanation for why she had not previously obtained
this evidence and expressly stated that she only initiated her investigation into
the evidence after her claims were dismissed with prejudice. 3 The district
court therefore did not abuse its discretion in denying relief under Rule
60(b)(2).
       Second, Bradford alleges that GHW engaged in fraud by withholding
documents during discovery, and therefore the district court erred by not
granting relief under Rule 60(b)(3). See Fed. R. Civ. P. 60(b)(3) (providing relief
if an opposing party commits “fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct”). However, the movant must
establish not only that the adverse party engaged in fraud or other misconduct,
but that “this misconduct prevented the moving party from fully and fairly
presenting [her] case.” Hesling, 396 F.3d at 641 (emphasis added). Even if
GHW had wrongfully withheld documents during discovery, 4 Bradford has



       3  Moreover, while Bradford relies heavily on an expert report she submitted with her
Rule 60(b) motion, she previously waived her right to utilize expert testimony, and she has
not provided any plausible ground for why she did not previously pursue such an expert
report.
        4 Throughout the proceedings below, Bradford repeatedly made conclusory allegations

that GHW withheld documents during discovery without providing significant evidentiary
support. See Hesling, 396 F.3d at 641 (“The moving party has the burden of proving the
misconduct by clear and convincing evidence.”). And, as the district court correctly noted,
the majority of the “newly discovered evidence” involved emails sent and received by Chiari
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                                        No. 15-30679
failed to show that she was prevented from presenting her case because she
could have easily obtained those documents from Chiari. Indeed, attached to
Bradford’s Rule 60(b) motion were multiple exhibits where Chiari stated that
he still possessed the original documents from the Italian civil suit.
Accordingly, there was no abuse of discretion in denying relief under Rule
60(b)(3).
       Finally, Bradford was not entitled to relief for “any other reason that
justifies relief.” 5 Fed. R. Civ. P. 60(b)(6). Bradford has failed to advance any
separate ground for relief under Rule 60(b)(6) that is not already covered by
Rule 60(b)(2) and (b)(3). See Hesling, 396 F.2d at 643 (“The reason for relief
set forth under 60(b)(6) cannot be the reason for relief sought under another
subsection of 60(b).”); Hess v. Cockerill, 281 F.3d 212, 216 (5th Cir. 2002)
(“[Rule 60(b)(6)] is a catch-all provision, meant to encompass circumstances not
covered by Rule 60(b)’s other enumerated provisions.”).
       We therefore AFFIRM the judgment of the district court.




that were not in GHW’s possession, custody, or control. See Fed. R. Civ. P. 34(a) (allowing a
party to request certain items within the “responding party’s possession, custody, or control”).
       5 While Bradford contends that the district court failed to address her request for relief

under Rule 60(b)(6), the district court expressly held that “[Bradford] is not entitled to relief
from final judgment [under Rule 60(b)(3)] or any other basis.”
                                               4
