                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-10235
                         Summary Calendar



GREGORY A. NICHELSON,

                                    Plaintiff-Appellant,

versus

UNITED DOMINION REALTY TRUST; TOM TOOMEY; CHERYL PUCCI;
DENISE ROCHE; SANDRA KELLER; PEGGY COVEY; JAIME LACAZE; DOES
1 THROUGH 6,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:03-CV-462-R
                      --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Gregory A. Nichelson has appealed the district court’s order

and judgment dismissing his pro se amended complaint, against

United Dominion Realty Trust (“UDRT”) and six individuals, for

failure to state a claim upon which relief may be granted.        This

court reviews de novo a district court’s dismissal under FED.

R. CIV. P. 12(b)(6) for failure to state a claim.   Brown v.

NationsBank Corp., 188 F.3d 579, 585 (5th Cir. 1999).


     *
       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this opinion should not be published and is not precedent except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.
                           No. 04-10235
                                -2-

A complaint may not be dismissed under Rule 12(b)(6) unless it

appears certain that the plaintiff cannot prove any set of facts

in support of his claim that would entitle him to relief.     Id.

“[R]egardless of whether the plaintiff is proceeding pro se or is

represented by counsel, conclusory allegations or legal

conclusions masquerading as factual conclusions will not suffice

to prevent a motion to dismiss.”   Taylor v. Books A Million,

Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation marks

omitted).

     “[I]n deciding a motion to dismiss for failure to state a

claim, courts must limit their inquiry to the facts stated in the

complaint and the documents either attached to or incorporated in

the complaint.”   Lovelace v. Software Spectrum Inc., 78 F.3d

1015, 1017 (5th Cir. 1996).   Nichelson’s original appellate brief

and reply brief are replete with factual assertions and legal

claims that were not made in the amended complaint.   We have not

considered those new factual assertions and legal claims in

reviewing whether the district court’s erred in dismissing the

amended complaint.

     In his amended complaint, Nichelson asserted that UDRT’s

“Directors and Human Resources Managers” had conspired

fraudulently to terminate his employment with UDRT, while he was

on leave because of the terminal illness of his grandmother, in

violation of the Family and Medical Leave Act (“FMLA”).

Nichelson complained that he had been blacklisted because of
                            No. 04-10235
                                 -3-

untrue negative information in his personnel file, i.e., that he

was ineligible to be rehired.   Nichelson complained he had been

unable to secure employment in the property management field

because two individual defendants had conveyed that false

information to other would-be employers.   Nichelson complained

that he had earned commissions that were not paid at the time of

his termination.

     These conclusional allegations do not state a claim upon

which relief can be granted and there is no reason to believe on

the basis of the amended complaint alone that Nichelson could

cure the deficiencies in his complaint through further amendment.

See Taylor, 296 F.3d at 378.    To establish a prima facie case of

retaliation under the FMLA, a plaintiff must establish (1) that

he engaged in protected activity, (2) that he suffered an adverse

employment decision, and (3) that a causal connection existed

between the protected activity and the adverse employment

decision.   Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319

(5th Cir. 1999).   The third element may be satisfied by showing

either that “the plaintiff was treated less favorably than an

employee who had not requested leave under the FMLA,” or that

“the adverse decision was made because of the plaintiff’s request

for leave.”   Bocalbos v. National Western Life Ins. Co., 162 F.3d

379, 383 (5th Cir. 1998).   Nichelson did not allege adequately in

his amended complaint that there was a causal connection between

his FMLA protected leave and the adverse employment decision.
                            No. 04-10235
                                 -4-

See Chaffin, 179 F.3d at 319.    There was also no factual

explication of the state-law liable and conversion claims.      The

district court did not err in granting the motion to dismiss.

     We contrue Nichelson’s “Notice of Emergency Reversal of

Order,” filed after entry of the order of dismissal but before

entry of the judgment, as a motion for relief from the order of

dismissal under FED. R. CIV. P. 60(b)(6).   Under Rule 60(b)(6),

the district court may relieve a party from an order “upon such

terms as are just” and for any “reason justifying relief.”      FED.

R. CIV. P. 60(b)(6).   “A court may grant relief under [Rule]

60(b)(6) only under extraordinary circumstances.”    Heirs of

Guerra v. United States, 207 F.3d 763, 767 (5th Cir. 2000).       The

district court’s order denying the Rule 60(b)(6) motion is

reviewed for an abuse of discretion.    Maddox v. Runyon, 139 F.3d

1017, 1020 (5th Cir. 1998).

     Nichelson contended in his Rule 60(b)(6) motion that there

were outstanding discovery requests and his responses to those

requests would clarify the nature of those claims.    Nichelson

attached to his “Notice,” copies of correspondence apparently

related to a complaint filed with the Equal Employment

Opportunity Commission.    In the attached documents, Nichelson

complained that he was terminated wrongfully for job abandonment.

He stated that, while on approved family leave, he had attempted

unsuccessfully to communicate with his employer.    Nichelson

complained that he was the victim of unlawful gender and racial
                               No. 04-10235
                                    -5-

discrimination because a female employee had been treated

differently and because the adverse job action occurred after

UDRT learned that he was in a bi-racial marriage.      Nichelson

complained also that he had earned commissions and vacation pay

that were withheld from him improperly.

     Although these conclusional assertions elaborate to some

degree on the nature of Nichelson’s claims, they do not

demonstrate that extraordinary relief was warranted in that

Nichelson would be able to assert a prima facie case of

retaliation under the FMLA if given another opportunity to amend

his complaint.   See Chaffin, 179 F.3d at 319.     There was no

mention of gender or racial discrimination in the amended

complaint.   The district court did not abuse its discretion in

denying the Rule 60(b)(6) motion.      See Maddox, 139 F.3d at 1020.

     Previously, the clerk granted Nichelson’s motion for leave

to file record excerpts in excess of 40 pages, subject to

reconsideration by this panel.      Because the record excerpts

include documents that are not in the record, the clerk’s order

is VACATED and the motion is DENIED.      Nichelson has moved for

leave to amend his complaint and for appointment of counsel.

Those motions are DENIED.      The appellees have moved for a

protective order and for an award of attorneys’ fees.      That

motion is DENIED.   The appeal is DISMISSED AS FRIVOLOUS.       See

FED. R. APP. P. 34(a)(2)(A).

     APPEAL DISMISSED; MOTIONS DENIED.
