                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                 November 26, 2003

                                                          Charles R. Fulbruge III
                           No. 01-30553                           Clerk



                  CONSORCIO RIVE, S.A. DE C.V.,

                                      Plaintiff- Appellant- Appellee,


                              VERSUS


                     BRIGGS OF CANCUN, INC.,

                                               Defendant - Appellant,
                                and

                 DAVID BRIGGS ENTERPRISES, INC.,

                                       Defendant-Appellee-Appellant.



          Appeals from the United States District Court
              for the Eastern District of Louisiana
                           (99-CV-2204)


Before SMITH, DENNIS, and CLEMENT Circuit Judges.
DENNIS, Circuit Judge:*

      Plaintiff-Appellant Consorcio Rive, S.A. DE C.V. (“Rive”)

appeals the district court’s decisions to dismiss its claims

against defendant David Briggs Enterprises, Inc. (“DBE”), and to

deny its Rule 60(b) motion.   Defendant-Cross Appellant, Briggs of


  *
   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opinion should not be published and is not precedent except under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.

                                 1
Cancun,    Inc.      (“BC”),     appeals       the    district     court’s       judgment

enforcing a $2,760,000 arbitration award in favor of Rive and the

district court’s denial of BC’s Rule 60(b) motion. For the reasons

discussed herein, we AFFIRM the district court’s judgments.

                                           I.

                                       Background

     BC,    a   Louisiana       corporation,         is   a   subsidiary    of    DBE, a

Louisiana corporation, which is wholly owned and controlled by

David A. Briggs, Jr. (“Briggs”).                DBE is engaged in the provision

of management services, the sale of speciality drink mixes, and the

licensing of certain business concepts and systems; it owns several

subsidiary organizations that it uses in the provision of these

services.       DBE organized BC for the purpose of owning and/or

operating an establishment selling alcoholic beverages at the

retail level.        BC in turn contracted with DBE to have DBE provide

general    administrative        and    accounting        services    to    BC.     BC’s

accounts    are      managed    through    a    centralized       accounting      system

maintained      by    DBE.      This    accounting        system     uses   individual

departmental designations to account separately for the operations

of BC and the various other companies for which DBE provides

accounting services.           In other words, all of the funds of DBE and

its subsidiaries are kept in one bank account; however, the funds

allocated to each subsidiary are tracked and kept separate for

accounting purposes.

     On October 1, 1991, Rive, a Mexican corporation, and BC

                                           2
entered into an agreement (the “Agreement”) by which Rive provided

property and permits for BC to open a Fat Tuesday’s restaurant and

bar in Cancun, Mexico.            The Agreement included an arbitration

clause that stated that any controversy or claim arising out of the

Agreement would be settled by arbitration in Monterrey, Mexico,

pursuant to the rules of the Interamerican Commercial Arbitration

Commission and that judgment upon the award of the arbitrator may

be entered in a court having jurisdiction thereof.

     Rive    initially     wanted       Briggs      and     DBE    to   guarantee    the

performance of the Agreement by BC.                Briggs and DBE rejected this

proposal. The parties then freely negotiated a compromise in which

DBE and Briggs would not guarantee the performance of the Agreement

by BC, but BC would post a bond to guarantee the first six months

of its performance.

     As a result of a dispute relating to payments due under the

Agreement, Rive initiated an arbitration proceeding against BC in

January     1996   in   Mexico.         In       February    1996,      BC    responded,

designating an arbitrator.              In March 1996, Rive submitted its

formal arbitration demand, which BC answered in November 1996.

After this point, despite receiving notice of the arbitration

proceedings,       BC   refused    to    participate          in    the      arbitration

proceedings, either in person, through teleconference, or through

a representative.       The arbitration continued, and the arbitration

board awarded Rive a total of $2,760,000 from BC, plus interest and

costs.

                                             3
     BC claims that it stopped participating in the arbitration

because Rive filed papers requesting a criminal investigation of

Briggs, among others, for criminal conspiracy to prevent Rive from

exercising its rights under the Agreement. This investigation made

Briggs afraid to enter Mexico and subject himself to arrest.            No

arrest warrant appears to have been issued against Briggs as a

result of this action.     Neither DBE nor BC was involved in this

criminal investigation.

     On July 19, 1999, Rive filed suit in federal court for

enforcement of the arbitration award pursuant to the Convention and

Enforcement of Foreign Arbitral Awards (“Convention”), 9 U.S.C. §

201, against BC and DBE.     The district court held that the award

should be enforced against BC. But the court dismissed DBE from the

case after refusing to pierce BC’s corporate veil.         BC appeals the

district court’s enforcement of the arbitration award against it.

Rive appeals the district court’s decision to dismiss DBE from the

case.

                                     II

                          Standard of Review

     “We review a judgment on the merits of a nonjury civil case

applying   the   usual   standards       of   review.   Thus,   we   review

conclusions of law de novo and findings of fact for clear error.”

Switzer v. Wal-Mart Stores, Inc., 52 F.3d 1294, 1298 (5th Cir.

1995) (internal citations omitted). Accordingly, “[i]f the district


                                     4
court's account of the evidence is plausible in light of the record

viewed in its entirety, we may not reverse even if we are convinced

that, had we been sitting as the trier of fact, we would have

weighed   the   evidence   differently.”    Id.   (internal   citations

omitted). Finally, “a trial court's finding is ‘clearly erroneous’

when, although there is evidence to support the finding, the

reviewing court is left with a definite and firm conviction that a

mistake has been made.”     Id. (internal citations omitted).

     The district court’s decision to grant or deny relief pursuant

to Rule 60(b) of the Federal Rules of Civil Procedure lies in the

sound discretion of the district court and will be reversed only

for an abuse of that discretion.       Provident Life & Accident Ins.

Co. v. Goel, 274 F.3d 984, 997 (5th Cir. 2001).

      Although we apply Louisiana substantive law to determine the

appropriateness of piercing the corporate veil, we utilize our own

federal standards of appellate review in evaluating the district

court’s decision.    Patin v. Thoroughbred Power Boats, Inc., 294

F.3d 640, 646-47, 647 n.12 (5th Cir. 2002).          The decision of

whether to pierce the corporate veil presents a mixed question of

law and fact.   To the extent that the district court’s decision not

to pierce the corporate veil involves a factual determination, we

review it for clear error; to the extent that it involves questions

of law, we review those questions of law de novo.      See id. at 647;

Hollowell v. Orleans Regional Hospital, LLC, 217 F.3d 379, 385 (5th


                                   5
Cir. 2000).

                                         III

                      Enforcement of Arbitration Award

          BC alleges that the district court made several procedural and

substantive errors in finding that BC was responsible for the

arbitration award. Specifically, BC argues that the district court

erred (1) by not permitting it to argue all of its affirmative

defenses at trial; (2) by not holding that termination of the

Agreement removed the obligation on the parties to arbitrate; (3)

by enforcing the arbitration award contrary to the public policy of

the United States; and (4) by not holding that the Mexican criminal

proceedings initiated against Briggs prevented BC from presenting

its case to the arbitrator.2            Upon reviewing these arguments, we

disagree and affirm the decision of the district court.

                                          A

          BC argues that the district court committed reversible error

by not permitting it to argue all of the affirmative defenses that

it       attempted   to   raise   in   opposition    to   enforcement   of     the

arbitration award at trial.            The Convention, however, establishes

what defenses a defendant may raise to enforcement of a foreign

arbitration. Specifically, under Article V of the Convention, only

certain       enumerated    defenses    may    be   raised   in   opposition    to

     2
   BC and DBE also argue that the district           court erred in requiring
BC and DBE to post a bond to stay the                proceedings pending the
resolution of certain Mexican judicial                proceedings.   However,
because BC and DBE did not actually post a           bond, the issue is moot.

                                          6
“[r]ecognition and enforcement of the [arbitration] award.”                    9

U.S.C. § 201.    BC and DBE did not raise any of these defenses to

the district court and do not raise them to this court.               Instead,

BC and DBE only present defenses on issues that should have been

raised during the arbitration itself. Because the affirmative

defenses that BC and DBE attempted to raise in the district court

are   not   cognizable   under   the   Convention,       the   district   court

properly refused to allow these defenses at trial.3

                                       B

      Defendants next contend that when the Agreement terminated,

the parties’ obligation to arbitrate their dispute terminated.

Defendants argue, therefore, that the district court erred in

enforcing the result of the arbitration.             The Supreme Court has

rejected this argument and has held expressly that an arbitration

agreement contained in a contract does not terminate merely because

the   contract   has   terminated.         See   Nolde   Bros.   v.   Bakery   &

Confectionary Workers Union, 430 U.S. 243, 249-55 (1977) (“[I]t


  3
   In addition to BC and DBE’s general complaint that the district
court improperly denied them an opportunity to argue affirmative
defenses to enforcement of the arbitration award, BC and DBE also
make separate claims concerning the affirmative defenses of setoff
and waiver. Specifically, BC and DBE claim that the arbitrator’s
award should be reduced by $900,000 because of a $900,000 payment
that Rive received from another party involved in the dispute and
because Rive waived its right to arbitrate the dispute by filing
papers requesting a criminal investigation of Briggs.      Because
setoff and waiver are affirmative defenses to enforcement of the
award that are not listed in Article V of the Convention, the
district court properly rejected these claims for the reasons
explained above.

                                       7
could not seriously be contended . . . that the expiration of the

contract would terminate the parties’ contractual obligation to

resolve such a dispute in an arbitral, rather than a judicial

forum.”).       Accordingly, we reject defendants’ argument.

                                           C

      Defendants also argue that the district court’s enforcement of

the arbitration award is contrary to the public policy of the

United States because Rive used the Mexican criminal matter as a

tool of “intimidation and extortion” against BC and DBE.                            The

Convention      allows   a   court    to   deny     enforcement      of    a   foreign

arbitration award if “the recognition or enforcement of the award

would be contrary to the public policy of that [court’s] country.”

9 U.S.C. § 201 (Convention Article V(2)(b)).                       However, courts

construe this public policy defense narrowly and only apply it when

enforcement of the foreign arbitration award would violate the

forum    state’s     most    basic    notions      of    morality    and       justice.

Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 516 (2nd Cir. 1975).

Additionally, it is not uncommon in the United States for criminal

and     civil    proceedings     involving         the   same      matter      to   run

concurrently.        See     Witter   v.       Immigration   and    Naturalization

Service, 113 F.3d 549, 555 (5th Cir. 1997) (holding that the

“difficult litigation choices” that may result from a party’s being

involved in concurrent civil and criminal proceedings “do not

substantially infringe Fifth Amendment rights”).                   Simply put, the


                                           8
district court correctly held that enforcing the arbitration award,

even considering that Mexican criminal proceedings were instituted,

does not violate our most basic notions of morality and justice and

does not preclude the courts from enforcing the award.4

                                    D

      Defendants also contend that the Mexican criminal proceedings

initiated against Briggs prevented BC from presenting its case to

the arbitrator.    Specifically, defendants argue that Briggs was

precluded,   through   fear   of   arrest,   from   entering   Mexico   to

participate in the arbitration.     Hence, it concludes, the district

court erred in enforcing the foreign arbitration award.

      Article V(1)(b) of the Convention does state that a foreign

arbitration award need not be enforced where a party lacked notice

of the arbitration or was “otherwise unable to present his case.”

9 U.S.C. § 201.5   However, as the district court explained, the

strong federal policy in support of encouraging arbitration and

enforcing arbitration awards dictates that we narrowly construe the



  4
   Additionally, BC and DBE argue that the district court
improperly considered the testimony of Rive’s Mexican counsel
regarding the Mexican criminal procedures. We need not address
this issue because, even if the testimony should not have been
considered, its admission is harmless error.    Even without the
benefit of the specific testimony concerning the Mexican criminal
procedures, the district court correctly decided that the
institution of those procedures did not violate public policy.
  5
   There is no contention that BC and DBE had insufficient notice
of the arbitration proceedings.


                                    9
defense that a party was “unable to present its case.”        See Parsons

& Whittemore Overseas Co. v. Societe Generale de L’industrie du

Papier, 508 F.2d 969, 975 (2nd Cir. 1974).

      In this case, the district court correctly found that BC had

ample opportunity to present its case to the arbitrator.           BC could

have participated in the arbitration by means other than David

Briggs’ physical presence at the arbitration. BC could have simply

sent an attorney or other corporate representative to represent it

at the arbitration.      Briggs himself could have participated by

telephone. Additionally, BC participated in the arbitration to the

extent that it designated an arbitrator and filed over 80 pages of

legal argument and documentation in support of its position at

arbitration.    Defendants did not present the district court with

any additional information or evidence that BC would have presented

at   the   arbitration   had   it   had   the   opportunity   to   do   so.

Accordingly, the district court properly rejected the argument that

BC did not have the opportunity to participate meaningfully in the

arbitration.

      In conclusion, though defendants raise multiple arguments

contending that the district court improperly enforced the Mexican

arbitration award, these arguments all lack validity. Accordingly,

we affirm the district court’s decision to enforce the arbitration

award against BC.

                                    IV


                                    10
                         Piercing the Corporate Veil

     Rive’s appeal challenges the district court’s decision not to

pierce BC’s corporate veil and enforce Rive’s arbitration award

against    DBE.      Instead,    the   district   court      entered    judgment

enforcing the award against BC, but not allowing Rive to reach the

assets of DBE in collecting on that judgment.

     “A corporation is a distinct legal entity from those persons

who compose it.” Sparks v. Progressive American Insurance Co., 517

So. 2d 1036, 1039 (La. App. 3 Cir. 1987); see also La.R.S. 12:93(B)

(“A shareholder of a corporation organized after January 1, 1929,

shall not be liable personally for any debt or liability of the

corporation.”); Middleton v. Parish of Jefferson, 707 So. 2d 454,

456 (La. App. 5 Cir. 1998) (“The general rule that corporations are

distinct legal entities is well supported by jurisprudence and

statute.”).       Piercing the corporate veil in Louisiana in order to

impose the corporation’s liability on the corporation’s owners is

a “radical remedy” and must of course be construed very narrowly

and exercised in “exceptional circumstances.” Sparks, 517 So.2d at

1039.      “Although     [veil   piercing]   usually    arise[s]       to    impose

personal liability on corporate shareholders for corporate debts,

this is a flexible doctrine that can be used in any situation in

which the separate personality of the corporation appears to be

blocking    a     just   result.”      Middleton,      707    So.2d     at     456.

Additionally,


                                       11
          the policies behind recognition of a separate
          corporate existence must be balanced against
          the policies justifying piercing . . . .
          Depending upon the various competing policies
          and interests involved, the same factual
          scenario may result in recognition of a
          separate corporate identity for some purposes,
          i.e.   insulation    of   shareholders    from
          liability, and a disallowance of the separate
          corporate entity privilege for others. Each
          situation must be considered by the court on
          its   merits.   The   facts   presented   must
          demonstrate some misuse of the corporate
          privilege in that situation or the need of
          limiting it in order to do justice.

Glazer v. The Commission on Ethics, 431 So. 2d 752, 757-58 (La.

1983) (internal citations omitted).

     Balancing these equities, Louisiana courts have recognized

that corporate liabilities that result from consensual contractual

relationships between sophisticated parties dealing at arms length

should only be attributed to the corporate shareholders in extreme

situations.   Specifically,

          Where the action underlying the request to
          pierce the corporate veil is based on
          contract, courts have usually applied more
          stringent standards to piercing the corporate
          veil.    The rationale for more carefully
          scrutinizing these factors is that the party
          seeking relief in a contract case is presumed
          to have voluntarily and knowingly entered into
          an agreement with a corporate entity and was
          aware that he would have to suffer the
          consequences of limited liability of the
          shareholders associated with the corporate
          entity. Accordingly, absent very compelling
          equitable considerations, courts should not
          rewrite contracts or disturb the allocation of
          risk the parties have themselves established.




                               12
Riggins v. Dixie Shoring Co., 592 So.2d 1282, 1285 (La. 1992)

(Dennis, J., concurring) (internal citations omitted); see also

Barnco International, Inc. v. Arkla, Inc.           684 So.2d 986, 992 (La.

App. 2 Cir. 1996) (citing Riggins and noting that “the courts have

usually applied a more stringent standard where the party seeking

to pierce the veil, in a contract case, voluntarily           entered into

an agreement with a corporate entity and knowingly accepted the

consequences of limited liability”).

     While the above cited cases provide us with insight into the

general approach that the Louisiana courts take to piercing the

corporate veil, we also need to determine what particular factors,

if any, the Louisiana courts examine in determining whether the

corporate veil should be pierced in any specific case.            Professor

Glenn Morris has performed an in-depth analysis of all Louisiana

veil piercing cases between 1944 and 1991.            See Glenn G. Morris,

Piercing the Corporate Veil in Louisiana, 52 La.L.Rev. 271, 273

(1991).   His analysis provides insight into how Louisiana courts

analyze piercing the corporate veil in consensual creditor cases.

Notably, he comments that “[o]f the many dozens of reported veil-

piercing cases covered by this article, not one of them involving

a claim by a consensual creditor has pierced the veil simply

because   the   obligor   corporation     was   a    controlled   shell   or

instrumentality.”    Id. at 292.        Instead, other factors must be

present in order to hold that the corporate veil should be pierced


                                   13
in a consensual creditor case.      Id.

       Specifically, Louisiana courts must find one of the following

four factors before they will pierce the corporate veil in favor of

a consensual creditor: (1) the creditor is less sophisticated than

the corporation; (2) a single shareholder controls a number of

different corporations and moves assets back and forth among the

various corporations; (3) the shareholder has deliberately stripped

the corporation of assets, knowing that the corporation is about to

face   liability,   or   has   placed   the   contract   into   the   shell

corporation knowing that the contract was going to be breached; or

(4) an extension of credit to the corporation has been procured, at

least in part, as the result of some false representation made

personally by the defendant shareholder or officer.        Id. at 293-94

(citing, inter alia, Troyer v. Webster Homes, Inc., 566 So. 2d 114

(La. App. 5 Cir. 1990); Terry v. Guillory, 538 So.2d 317 (La. App.

3 Cir. 1989); George A. Hormel & Co. v. Ford, 486 So. 2d 927 (La.

App. 5 Cir. 1986); Entech Systems Corp. v. Gaffney, 466 So.2d 788

(La. App. 4 Cir. 1985)).

       Rive argues that these four factors are not applicable to the

analysis of piercing the corporate veil in this case and that we

should instead apply an eighteen factor test that the Louisiana

Court of Appeal enumerated in Green v. Champion Insurance Co., 577




                                   14
So.2d 249 (La.App.1991).6     Technically, Green did not involve

piercing the corporate veil in order to impose a corporation’s

liability onto its shareholders.      Instead, Green enumerated a non-

exhaustive, non-dispositive list of factors to determine whether a

group of related companies is a “single business enterprise.”     Id.

at 258.    The district court heard extensive testimony on these

Green factors from both parties and specifically found that the

defendant’s expert testimony on these factors was more credible.

The district court then analyzed these factors and found that BC

and DBE did not constitute a “single business enterprise.”         We

agree with the district court’s legal analysis and findings of

fact.   To the extent that the Green factors apply to this case, we

affirm the district court’s refusal to use the Green factors to

  6
   The eighteen factors are “(1) Corporations with identity or
substantial identity of ownership, that is, ownership of sufficient
stock to give actual working control; (2) common directors or
officers; (3) unified administrative control of corporations whose
business functions are similar or supplementary; (4) directors and
officers of one corporation act independently in the interest of
the corporation; (5) corporation financing another corporation; (6)
inadequate capitalization (‘thin incorporation’); (7) corporation
causing the incorporation of another affiliated corporation; (8)
corporation paying the salaries and other expenses or losses of
another corporation; (9) receiving no business other than that
given to it by its affiliated corporations; (10) corporation using
the property of another corporation as its own; (11) noncompliance
with corporate formalities; (12) common employees; (13) services
rendered by the employees of one corporation on behalf of another
corporation; (14) common offices; (15) centralized accounting; (16)
undocumented transfers of funds between corporations; (17) unclear
allocation of profits and losses between corporations; and (18)
excessive fragmentation of a single enterprise into separate
corporations.” Green, 577 So.2d at 257-58.


                                 15
find that BC and DBE were a single business enterprise.

     We must next look at the four “piercing the corporate veil”

factors listed above to determine whether the district court

properly refused to impose liability on DBE via that theory.

Examining these four factors in turn, the district court found that

none of these factors applied to this situation.           First, the court

explained that both Rive and BC are very sophisticated business

entities.       Second, the court found, based on the testimony of the

accountants at trial, that all of the money in the Briggs family of

companies was adequately tracked among the various companies.             The

money was not, as would be required to pierce the veil, transferred

among the companies in such a manner as to make it impossible to

track.      Third, the court noted that, far from being a shell

corporation, BC is still an ongoing profitable business.            Finally,

the court noted that there is no evidence in the record to

demonstrate that BC, DBE, or Briggs engaged in fraud or deceit in

entering into the Agreement with Rive.         Accordingly, the district

court found that none of the four factors were met and did not

allow    Rive     to   pierce   BC’s   corporate   veil   and   enforce   the

arbitration award against DBE.           To the extent that the district

court’s determination involved findings of fact, we hold that the

district court did not clearly err in making those findings.              To

the extent that the district court’s determination involved an




                                       16
interpretation of law, it correctly interpreted the law.7

                                        V

                               Rule 60(b) Motions

         Both sides appeal the district court’s denial of their Rule

60(b) motions made after the conclusion of the trial.             Rule 60(b)

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

for the following reasons: (1) mistake, inadvertence, surprise, or

excusable   neglect;     (2)    newly   discovered    evidence;   (3)   fraud,

misrepresentation, or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied or relies on

a law invalidated subsequent to entry of the judgment; or (6) any

other reason justifying relief.              Fed. R. Civ. P. 60(b).         As

explained above, we review the district court’s decision to grant

or deny a Rule 60(b) motion for abuse of discretion.               Provident

Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 997 (5th Cir.

2001).    Rule   60(b)   is    an   “extraordinary”    remedy;    courts   are

disinclined to disturb final judgments except when necessary.              See


  7
   In addition to the analysis above, it is also notable that Rive
initially wanted DBE to assume liability under the Agreement. DBE
expressly refused, and the parties negotiated for and agreed to a
risk allocation arrangement in which DBE did not have liability
under the Agreement. For the district court to invalidate this
term of the Agreement and impose the extraordinary remedy of
corporate veil piercing on BC would directly conflict with
Louisiana law to the contrary.        Barnco, 684 So.2d at 992
(“[Louisiana] courts have usually applied a more stringent standard
where the party seeking to pierce the veil, in a contract case,
voluntarily entered into an agreement with a corporate entity and
knowingly accepted the consequences of limited liability”).


                                        17
Goldstein v. MCI Worldcom, 340 F.3d 248, 258 (5th Cir. 2003)

(citing Pease v. Pakohed, 980 F.2d 995, 998 (5th Cir. 1993) and

Longden v. Sunderman, 979 F.2d 1095, 1102 (5th Cir. 1992)).

          Rive claims that BC made several misrepresentations during the

proceedings that obligate the district court to relieve Rive from

its decision not to pierce BC’s corporate veil.8                     Specifically,

Rive contends that (1) several post-judgment actions by BC and DBE

indicated that they made misrepresentations at trial; (2) DBE lied

about how much revenue it received from the Fat Tuesday’s; and (3)

BC lied about being a “successful” business.                     We have reviewed

these arguments and uphold the decision of the district court.

          First, Rive argues that BC and DBE took post-judgment actions,

such as opening a separate bank account for BC and making payments

by DBE on behalf of BC, that indicate that BC’s and DBE’s testimony

at       trial   were    misrepresentations       that   necessitate    Rule   60(b)

interference with enforcement of the judgment.                   We hold that the

district court did not abuse its discretion in holding that these

post-judgment           actions   by   BC   and   DBE    did   not   implicate   the

extraordinary Rule 60(b) remedy of undercutting the judgment. Rive

also contends that defendant’s claim that DBE only received 5% of



     8
   To the extent that elements of Rive’s 60(b) motion relate to
alleged misconduct by BC involving enforcement of the arbitration
award against BC, we do not address the issue because it is moot.
The district court ruled in favor of Rive concerning enforcement of
the arbitration award against BC.


                                            18
the gross revenue generated by the Fat Tuesday’s from BC must be

false because the new company managing the Fat Tuesday’s is paying

15% in fees.    The district court properly held that defendants did

not prove that BC was paying more than 5% to DBE.          Finally, Rive

contends that BC lied about being a “successful” company. However,

BC is a profitable company and “success” is a relative term.          It

was not an abuse of discretion for the district court to hold that

it was not a misrepresentation to claim that BC was successful.       In

short, the district court properly denied Rive’s Rule 60(b) motion.

     BC also brought a Rule 60(b) motion, contending that a Mexican

appeals court held that the Mexican district court’s decision was

improper.   Therefore, BC argues, the district court in this case

should   have   set   aside   its   judgment   enforcing   the   Mexican

arbitration award.    BC, however, had an opportunity to post a bond

and stay these proceedings pending the resolution of the Mexican

appellate proceedings.    BC did not post this bond.       It was not an

abuse of discretion for the district court to refuse to use Rule

60(b) in this instance to undercut its judgment.

                                    VI

                               Conclusion

     After reviewing the record and the arguments by both parties

in this case, we affirm the judgment of the district court.           BC

raises numerous arguments in opposition to enforcement of the

Mexican arbitration award against it in favor of Rive.       None of the



                                    19
arguments survive scrutiny.   Rive objects to the district court’s

dismissal of DBE from this case.         However, this dismissal was

proper because DBE is not responsible for BC’s corporate liability.

Finally, both   parties   appeal   the   denial   of   their   Rule   60(b)

motions.   Both motions were properly denied.

AFFIRMED




                                   20
