                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                             No. 99-20863



                   B-F INVESTMENTS, Etc., ET AL,

                                                            Plaintiffs,

              B-F INVESTMENTS, A TEXAS JOINT VENTURE,

                                                  Plaintiff-Appellant,


                                  VERSUS


           FEDERAL DEPOSIT INSURANCE CORPORATION, ET AL,

                                                            Defendants,

              FEDERAL DEPOSIT INSURANCE CORPORATION,

                                                   Defendant-Appellee.



           Appeal from the United States District Court
                for the Southern District of Texas
                             (H-95-4500)
                            March 13, 2001
Before POLITZ, SMITH, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:*

      Plaintiff-Appellant   B-F    Investments   appeals   the   district


  *
   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opinion should not be published and is not precedent except under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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court’s order granting the Federal Deposit Insurance Corporation’s

motion for relief from the court’s final judgment under Rule 60(b).

Appellant claims that the district court abused its discretion by

granting affirmative relief beyond the scope of the pleadings and

its final judgment.

                               I.

     In 1991, B-F Investments filed suit in state court against

Sunbelt Savings seeking specific performance of the parties’ real

estate sales contract and consequential damages.      In August of

1995, B-F Investments joined the FDIC and the Resolution Trust

Corporation as defendants in their corporate capacities.    The case

was removed to federal court following Sunbelt Savings’ closure and

subsequent takeover by the FDIC.

     The real estate sales contract required B-F Investments to

place “at-risk” and “not-at-risk” earnest money into an escrow

account maintained by Stewart Title Company.   Under the exclusive

remedies of the contract, the buyer, B-F Investments, could seek

specific performance of the contract, and the seller, the FDIC,

could collect the “at-risk” earnest money.   In its amended answer,

the FDIC presented affirmative defenses to B-F Investments’ claims,

but failed to assert its own remedies under the contract.    On May

10, 1996, the district court granted the FDIC summary judgment and

dismissed the FDIC Corporate defendants.

     In its opinion, the district court held that enforcement of

the specific performance remedy under the contract was barred by 12

                                   2
U.S.C. § 1821(j).       The court also concluded that its inability to

grant B-F Investments’ remedy under the contract did not repudiate

the remaining contract terms.           As to B-F Investments’ claim of

conversion, the district court held that the FDIC was not liable

because B-F Investments breached the contract.                  The district

court’s opinion did not address any remedies available to the FDIC,

and the court’s final judgment did not award the FDIC the “at-risk”

earnest money.     The district court’s judgment was affirmed by this

Court on August 19, 1997.        See B-F Investments v. Federal Deposit

Ins. Corp., No. 96-20576 (5th Cir. Aug. 19, 1997).

      Over   a   year   after   the   district    court    entered    its   final

judgment, the FDIC filed a Rule 60(b)(6) motion to order Stewart

Title Company to release the funds in the earnest money account,

or,   in   the   alternative,    to   permit     Stewart   Title     Company   to

interplead the earnest money.              The district court granted the

motion and awarded the “at-risk” earnest money to the FDIC.                    B-F

Investments timely appealed the district court’s final order.

                                      II.

      “The 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

Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc).                 Rule 60(b)

allows a district court to relieve a party from a final judgment

for “any . . . reason justifying relief from the judgment.”                    See


                                       3
FED. R. CIV. P. 60(b)(6).    Rule 60(b)(6) should only be applied in

extraordinary     circumstances.     See   Liljeberg     v.   Health    Servs.

Acquisition Corp., 486 U.S. 847, (1988); Ackerman v. United States,

340 U.S. 193, 202 (1950); Klapprott v. United States, 335 U.S. 601,

613 (1949).

      The district court concluded that the FDIC did not repudiate

the terms of the agreement and that B-F Investments breached the

contract. The FDIC argues that, because liability has already been

established, any further litigation concerning application of the

seller’s remedies is unnecessary.        According to the FDIC, the fact

that this contract dispute has taken close to a decade to resolve

is an extraordinary circumstance warranting Rule 60(b)(6) relief.

      These circumstances are not so extraordinary as to permit the

district court to vacate its judgment and grant affirmative relief

to the FDIC.     The FDIC did not claim in its amended answer that it

was   entitled   to   contract   remedies,   and   the   district      court’s

judgment did not grant the FDIC any affirmative relief.             Allowing

the district court to award the FDIC the “at-risk” earnest money

precluded B-F Investments from raising an available defense under

Texas law.     Saving the district court further time to adjudicate

the remaining issues arising from this dispute does not present an

extraordinary circumstance under Rule 60(b)(6).1


  1
   The FDIC’s only conceivable claim under Rule 60(b) was that the
district court’s failure to address the seller’s remedies under the
contract was a mistake. Rule 60(b)(1) allows a party to file a

                                     4
     Because the court did not address the seller’s remedies under

the contract, the FDIC must file a separate action to assert its

remedies, to which B-F Investments may respond with any available

defense.   The district court’s order granting the FDIC’s Rule

60(b)(6) motion is therefore reversed.

REVERSED AND REMANDED.




motion for relief from a final judgment for inadvertence or mistake
no more than one year after the judgment was entered. See Fed. R.
Civ. P. 60(b)(1). Rule 60(b)(6) may not be used to circumvent the
one-year limitations period that applies to (b)(1). See Liljeberg,
486 U.S. at 863 n.1.

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