                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 21 2003
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    KARIM MARDANLOU,

                 Plaintiff-Appellant,

    v.                                              Nos. 01-4076 & 01-4257
                                                   (D.C. No. 2:98-CV-359-C)
    GENERAL MOTORS                                         (D. Utah)
    CORPORATION, a Delaware
    corporation; and Does I through V,

                 Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Karim Mardanlou appeals from the district court’s denial of two

Fed. R. Civ. P. 60(b) motions. He argues that the district court abused its

discretion in considering the motions only under Rule 60(b)(3), instead of also

considering them under Rule 60(b)(1). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm the district court’s orders.

      Mr. Mardanlou, who was represented by counsel, sued defendant General

Motors Corp. after sustaining personal injuries in a vehicle accident. The parties

entered into a settlement agreement. About nine months later, Mr. Mardanlou

filed a pro se motion to set aside the settlement, asserting mediator bias and

pressure to settle by the court, the mediator and his own attorney. In his reply to

General Motors’ opposition to his motion, he further asserted that he was taking

medications during the settlement talks, which caused him to be “easily

manipulated and persuaded.” Aplt. App. at 47. Deeming the motion to be filed

under Rule 60(b)(3), the district court denied it, finding no fraud,

misrepresentation or misconduct by General Motors. Mr. Mardanlou appealed,

No. 01-4076. Six months later, he filed a pro se motion to reconsider the denial

of the motion to set aside the settlement, contending the district court failed to

address whether his medications affected his mental competence to enter into the

settlement agreement. The district court again denied relief under Rule 60(b)(3),




                                          -2-
acknowledging Mr. Mardanlou’s diminished mental capacity argument.

Mr. Mardanlou appealed, No. 01-4257.         1



       “We review the district court’s denial of a Rule 60(b) motion for abuse of

discretion.”   Servants of the Paraclete v. Does       , 204 F.3d 1005, 1009 (10th Cir.

2000). Rule 60(b) “relief is extraordinary and may only be granted in exceptional

circumstances.”     Id. (internal quotations omitted). Thus, we will reverse the

district court’s determination “only if we find a complete absence of a reasonable

basis and are certain that the . . . decision is wrong.”      Yapp v. Excel Corp. ,

186 F.3d 1222, 1232 (10th Cir. 1999) (internal quotation omitted);         accord Plotner

v. AT&T Corp. , 224 F.3d 1161, 1174 (10th Cir. 2000).

       Mr. Mardanlou argues that the district court abused its discretion by failing

to consider, under Rule 60(b)(1), the effect of his medications on his mental

competence to enter into the settlement agreement. Specifically, he contends the

district court should have considered his assertion that he did not understand that

by signing the settlement agreement he was waiving any right to further

reimbursement by General Motors.

       Rule 60(b)(1) provides that a district court may grant relief from a

judgment due to “mistake, inadvertence, surprise, or excusable neglect.”




1
       This court consolidated these two appeals for procedural purposes.

                                                 -3-
       [T]he “mistake” provision in Rule 60(b)(1) provides for the
       reconsideration of judgments only where: (1) a party has made an
       excusable litigation mistake or an attorney in the litigation has acted
       without authority from a party, or (2) where the judge has made a
       substantive mistake of law or fact in the final judgment or order.

Cashner v. Freedom Stores, Inc.       , 98 F.3d 572, 576 (10th Cir. 1996). “If the

mistake alleged is a party’s litigation mistake, we have declined to grant relief

under Rule 60(b)(1) when the mistake was the result of a deliberate and counseled

decision by the party.”     Id. at 577; see also Yapp , 186 F.3d at 1231. “Rule

60(b)(1) relief is not available for a party who simply misunderstands the legal

consequences of his deliberate acts.”        Cashner , 98 F.3d at 577; see also Yapp ,

186 F.3d at 1231. Also, “Rule 60(b) does not provide relief for mistakes made in

the negotiation of a contract or a stipulation . . . .”     Cashner, 98 F.3d at 578.

       It is undisputed that Mr. Mardanlou, with advice from counsel, made

a deliberate choice to settle. Without expressing any dissatisfaction, he signed

the agreement twenty days after it was reached. He declared that he had

discussed the agreement with his attorney and that he understood the agreement

fully settled all claims. Aplt. App. at 32. Because Mr. Mardanlou took deliberate

action upon advice of counsel and simply misapprehended the consequences of

that action, Rule 60(b)(1) relief is not available.       Cashner , 98 F.3d at 578.   2




2
     Moreover, the record does not support Mr. Mardanlou’s assertion that the
medications had an effect on his ability to enter into the settlement agreement.
                                                                       (continued...)

                                                -4-
       The second motion was inappropriate for two reasons. First, to the extent it

asserts judicial mistake by challenging the district court’s ruling on the first

motion, it was untimely. “[W]hen Rule 60(b)(1) is used to challenge a

substantive ruling by the district court, we have required that such a motion be

filed within the time frame required for the filing of a notice of appeal.”   Id.

Filing the second motion six months after the court’s ruling clearly was not within

the thirty-day appeal time.    Id. at 579. Second, the motion merely improperly

expanded upon the argument previously advanced in the reply filed in connection

with the first motion and merely provided supporting facts available at the time of

the first motion.   See Servants of the Paraclete , 204 F.3d at 1012.




2
 (...continued)
His physician, Dr. John Speed, merely speculated the medications “     could possibly
affect cognitive functioning to such a degree that, for example, the ability to enter
into contractual arrangements under the influence of these medications     could be
seriously compromised.” Aplt. App. at 70-71 (emphasis added). Also, although
Mr. Mardanlou maintains “he did not have the legal capacity to make the alleged
contract in question,” id. at 59, at his deposition, over seven months before the
stipulation was signed, he had testified that his medications did not make it
difficult for him to participate in the deposition or to understand the questions
asked, id. at 76-77. Also, at that time, his attorney sensed Mr. Mardanlou was
experiencing no difficulty. Id. at 77. Mr. Mardanlou neither explains why his
medications caused him problems at the time of the settlement agreement, but not
at the time of his deposition, nor asserts he was taking different medications at
the time of the deposition. See id. at 59 (asserting he took medications for
significant period before mediation).

                                             -5-
       Because we can discern no exceptional circumstances warranting Rule

60(b) relief in this case, we conclude the district court did not abuse its discretion

in denying such relief.   3



       The district court’s orders are AFFIRMED.


                                                      Entered for the Court



                                                      Stephanie K. Seymour
                                                      Circuit Judge




3
       Although Mr. Mardanlou listed the duress and bias issues in his brief,   see
Aplt. Br. at 2, his argument focused only on whether Rule 60(b) relief was
warranted due to diminished mental capacity. We, however, have also considered
these issues, and we conclude the district court did not abuse its discretion in
denying Rule 60(b) relief on bias or duress grounds.     See Servants of the
Paraclete , 204 F.3d at 1009.

                                          -6-
