     Case: 17-41223      Document: 00514833578         Page: 1    Date Filed: 02/13/2019




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

                                                                                FILED
                                      No. 17-41223                       February 13, 2019
                                                                           Lyle W. Cayce
PHILLIP DAVID HASKETT,                                                          Clerk


              Plaintiff - Appellant

v.

WESTERN LAND SERVICES, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:14-CV-281


Before CLEMENT, OWEN, and HO, Circuit Judges.
PER CURIAM:*
       Phillip David Haskett appeals the district court’s denial of a motion for
relief from a final judgment under Rule 60(b) and (d) of the Federal Rules of
Civil Procedure. We find no abuse of discretion, and therefore, we affirm.
                                             I.
       Haskett, a resident of Texas, sued Continental Land Resources, L.L.C.
(“Continental”), Purple Land Management Corporation (“PLMC”), Western


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-41223       Document: 00514833578      Page: 2    Date Filed: 02/13/2019


                                     No. 17-41223

Land Services, Inc. (“Western”), nine Unknown Clients, and nine “Jon
Doughs,” alleging violations of the Age Discrimination in Employment Act
(“ADEA”). Continental, Western, and PLMC moved to dismiss under 12(b)(6)
for failure to state a claim, and Western also moved to dismiss under 12(b)(2)
and (3) for lack of personal jurisdiction and improper venue. The district court
granted the motions and dismissed Haskett’s complaint against all the named
defendants. On appeal, we concluded that because Haskett did not challenge
Western’s dismissal, Haskett abandoned his claims against Western.                See
Haskett v. Cont’l Land Res., L.L.C., 668 F. App’x 133, 133–34 (5th Cir. 2016)
(per curiam). However, we vacated the lower court’s dismissal of Haskett’s
claims against Continental and PLMC. Id. at 135.
         After the appeal, Haskett filed a motion for relief from the district court’s
dismissal of claims against Western pursuant to Rules 60(b)(2)–(3), and
60(d)(1), (3). Haskett alleged that Western maintained a physical presence in
Texas at the time that Western claimed the court did not have personal
jurisdiction. Haskett cited a tax form submitted by Western, which showed
that Western had a physical office in Austin. Haskett contends that the tax
form was not previously discoverable, because the form was not filed until after
the district court dismissed Haskett’s complaint.
         Western opposed the Rule 60 motion, arguing that any claim for relief
under Rule 60(b)(2) or (3) was untimely. Western also argued that Haskett
never addressed an entitlement for relief under Rule 60(d)(1) or (3), and that
Haskett’s allegations do not sufficiently support a request for relief under Rule
60(d).
         The district court heard oral argument on Haskett’s Rule 60 motion. At
the hearing, Western’s counsel stated that a Western employee moved to
Austin after Western filed its motion to dismiss. Western’s counsel also stated


                                           2
    Case: 17-41223    Document: 00514833578     Page: 3   Date Filed: 02/13/2019


                                 No. 17-41223

that Western leased office space in January 2015 for the employee, but the
office space remained vacant, because the Western employee immediately left
Western to work elsewhere. The district court denied Haskett’s Rule 60 motion
and entered final judgment dismissing the claims against Continental and
PLMC later that year. Thereafter, Haskett filed this notice of appeal.
      On appeal, Haskett argues that the district court erred when it denied
his Rule 60 motion. Western contends that the district court did not abuse its
discretion in denying Haskett’s Rule 60 motion and that the Rule 60 motion
was untimely. Western also argues that the appeal is untimely and that the
mandate rule and the law-of-the-case doctrine precluded the district court from
granting Haskett’s relief from the previous judgment of dismissal that was
affirmed by this court.
                                      II.
      We may exercise jurisdiction over an appeal from final orders, certain
interlocutory appeals, and “appeal[s] where the district court has certified the
question as final pursuant to Federal Rule 54(b).” See Dardar v. Lafourche
Realty Co., Inc., 849 F.2d 955, 957 (citing 28 U.S.C. §§ 1291, 1292(a)(1),
1292(b); FED R. CIV. P. 54(b)). An order denying a Rule 60 motion as to a subset
of multiple defendants is not final unless the court expressly directs entry of
final judgment as to that subset. FED. R. CIV. P. 54(b). When the district court
denied Haskett’s Rule 60 motion against Western, it did not expressly enter a
final judgment, and the claims against Continental and PLMC were still
pending. Therefore, the order dismissing Rule 60 relief against Western was
not final until the court entered a final judgment against Continental and
PLMC, which occurred on November 7, 2017. An appeal must be filed within
30 days after the entry of a judgment. FED. R. APP. P. 4(a)(1)(A). Haskett filed




                                       3
     Case: 17-41223      Document: 00514833578        Page: 4     Date Filed: 02/13/2019


                                     No. 17-41223

his notice of appeal on December 4, 2017. Accordingly, Haskett’s appeal is
timely.
                                           III.
      Western argues that the mandate rule and the law-of-the-case doctrine
preclude the court from granting relief from the judgment, based on this court’s
prior affirmance. Because Haskett’s claims are rejected on the merits, we
decline to address this issue. See Becker v. Tidewater, Inc., 586 F.3d 358, 368
n.8 (5th Cir. 2009).
                                           IV.
      We review the denial of a Rule 60 motion for abuse of discretion. 1 See
Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 871 (5th Cir. 1989) (per
curiam) (citing Schauss v. Metals Depository Corp., 757 F.2d 649, 653 (5th Cir.
1985)). We find no abuse of discretion.
                                            A.
      Under Rule 60(b)(2), a court may grant relief to a party from a final
judgment based on “newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under Rule
59(b).” FED. R. CIV. P. 60(b)(2). To succeed under Rule 60(b)(2), “a movant
must demonstrate:         (1) that it 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 present before the original judgment.”
Goldstein v. MCI WorldCom, 340 F.3d 238, 257 (5th Cir. 2003) (citing Provident
Life & Accidental Ins. Co. v. Goel, 274 F.3d 984, 999 (5th Cir. 2001)). Under
Rule 60(b)(3), a court may grant relief based on “fraud (whether previously



      1  Rule 60(d)(3) contains the “fraud on the court” provision, which was previously
provided in Rule 60(b) before its 2007 revision. The change was stylistic only. See FED. R.
CIV. P. 60, Advisory Committee Notes, 2007 Amendments.

                                            4
    Case: 17-41223       Document: 00514833578     Page: 5   Date Filed: 02/13/2019


                                    No. 17-41223

called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party.” FED. R. CIV. P. 60(b)(3).
      The district court found that the documents upon which Haskett relied
showed only that Western had an interest in taxable personal property in
Texas. Because Haskett failed to show continuous and systematic contacts
with the forum state, the district court concluded that the court did not have
general jurisdiction over Western.
      Additionally, the district court concluded that it did not have specific
jurisdiction over Western. To determine specific jurisdiction, the court applies
a three-step analysis:


      (1) whether the defendant has minimum contacts with the forum
      state, i.e., whether it purposely directed its activities toward the
      forum state or purposefully availed itself of the privileges of
      conducting activities there; (2) whether the plaintiff’s cause of
      action arises out of or results from the defendant’s forum-related
      contacts; and (3) whether the exercise of personal jurisdiction is
      fair and reasonable.

Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433 (5th Cir. 2014) (quoting
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006)). The
district court concluded that jurisdiction fails under the second step, because
there is no allegation or evidence to show that Western’s alleged presence in
Travis County, Texas in 2015 is related to Haskett’s claim that Western
wrongfully discriminated against him.
      The evidence would not clearly have produced a different result. Even
though Western had a property interest in Texas, the property interest is not
sufficient to confer jurisdiction. Western cannot be “fairly regarded at home”
in a state in which it leased a vacant office for a few months for an employee
that never occupied the office space. Patterson v. Aker Sols. Inc., 826 F.3d 231,


                                         5
    Case: 17-41223     Document: 00514833578     Page: 6   Date Filed: 02/13/2019


                                  No. 17-41223

234 (5th Cir. 2016) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 924 (2011)).      Moreover, there is nothing to indicate that
Western’s interest in vacant property had any relation to Haskett’s ADEA
claim. Consequently, the district court did not abuse its discretion when it
denied Haskett’s Rule 60(b) claims on the merits.
      Furthermore, “[a] motion under Rule 60(b) must be made within a
reasonable time” and “no more than a year after the entry of the judgment or
order or the date of the proceeding.” FED. R. CIV. P. 60(c)(1). The original order
was entered on March 27, 2015, and Haskett did not move for Rule 60 relief
until October 11, 2016—well after the year-long deadline established by Rule
54(b). Therefore, the district court did not abuse its discretion when it denied
Haskett’s untimely motion.
                                       B.
      Under Rule 60(d), a court may “set aside a judgment for fraud on the
court.” Fed. R. Civ. P. 60(d)(3). Plaintiffs have the burden to establish that
there was fraud on the court by clear and convincing evidence. Kinnear-Weed
Corp. v. Humble Oil & Ref. Co., 441 F.2d 631, 636 (5th Cir. 1971) (collecting
authorities). A fraud-on-the-court claim is “not subject to any time limitation.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1337–38 (5th Cir. 1978). Establishing
fraud on the court requires proving “only the most egregious misconduct, such
as bribery of a judge or members of a jury, or the fabrication of evidence by a
party in which an attorney is implicated.” Id. (quotation omitted).
      Haskett fails to meet his burden. It is a “well-settled rule that the mere
nondisclosure to an adverse party and to the court of facts pertinent to a
controversy before the court does not add up to ‘fraud upon the court’ for
purposes of vacating a judgment under Rule 60(b).” Kerwit Med. Prods., Inc.
v. N. & H. Instruments, Inc., 616 F.2d 833, 837 (5th Cir. 1980) (collecting


                                        6
    Case: 17-41223    Document: 00514833578     Page: 7   Date Filed: 02/13/2019


                                 No. 17-41223

authorities). Haskett does not establish by clear and convincing evidence that
Western’s counsel concealed any information that would raise counsel’s
nondisclosure to the level of fraud on the court. Haskett only shows that
Western possessed a property interest to vacant office space in Texas in 2015.
This does not constitute “the most egregious misconduct” required to establish
fraud on the court. Therefore, because Haskett did not meet his burden, we
find no abuse of discretion.
                                       V.
      We conclude that the district court did not abuse its discretion in denying
relief under Rule 60. Accordingly, we affirm.




                                       7
