                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 27, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                             No. 03-11038
                           Summary Calendar



ABC UTILITIES SERVICES INC; ABC ASPHALT INC; UTILITIES EQUIPMENT
LEASING COMPANY INC,

                                     Plaintiffs-Appellants,

                                versus

ORIX FINANCIAL SERVICES INC, formerly known as Orix Credit
Alliance Inc,

                                     Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:02-CV-1538-N
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     ABC Utilities brought an independent action under FED. R. CIV.

P. 60(b) to set aside the judgments issued by a bankruptcy court

and two district courts.    The district court, after setting aside

a default judgment against Orix, dismissed ABC’s independent action

pursuant to FED. R. CIV. P. 12(b)(6), finding that the action was

outside the one-year limitations period for a Fed. R. Civ. P.


     *
        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this opinion should not be published and is not precedent except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. 03-11038
                                       -2-

60(b)(2) or (b)(3) motion, and given that ABC was “well aware of

the essence of their claims while the very judgment they now try to

set aside was being litigated,” ABC could not satisfy the equitable

requirements for a proper independent action.                 On appeal, ABC

asserts that the court erred by setting aside the default judgment

initially entered against Orix and by dismissing its independent

action.     We affirm.

     Initially,     ABC   obtained     a   default   judgment    against   Orix

because Orix failed to file a timely answer. However, the district

court set aside the default judgment, finding that Orix’s failure

to answer was the result of excusable, inadvertent miscalendaring.

A   court    may   set    aside    a   default     judgment     for   “mistake,

inadvertence, surprise, or excusable neglect.”1                 We review the

court’s decision to set aside the default judgment for an abuse of

discretion.2    Here, the district court found that Orix’s failure to

answer was the result of an excusable mistake, and ABC provides no

authority showing the court’s actions to be an abuse of discretion.

     We review the district court’s dismissal de novo, “accept[ing]

all factual allegations made in the pleading as true and ask

whether, under the circumstances asserted, the allegations state a

claim sufficient     to    avoid    dismissal.”3      Although    the   factual


     1
         FED. R. CIV. P. 55(c), 60(b).
     2
       Dolphin Plumbing Co. of Florida, Inc. v. Financial Corp. of
North America, 508 F.2d 1326, 1327 (5th Cir. 1975).
     3
      Kansa Reinsurance Co., Ltd. v. Congressional Mortg. Corp. of
Texas, 20 F.3d 1362, 1366 (5th Cir. 1994).
                                     No. 03-11038
                                          -3-

allegations must be taken as true, the district court “need not

resolve unclear questions of law in favor of the plaintiff,” and

“when a successful affirmative defense appears on the face of the

pleadings, dismissal under Rule 12(b)(6) may be appropriate.”4

     Fed. R. Civ. P. 60(b) provides that within one year of a

judgment       “the   court    may    relieve   a   party   or   a   party’s   legal

representative from a final judgment, order, or proceeding for

. . . (2) newly discovered evidence which by due diligence could

not have been discovered in time to move for a new trial under Rule

59(b)    .   .   .    [or]    (3)    fraud   (whether   heretofore     denominated

intrinsic or extrinsic), misrepresentation, or other misconduct of

an adverse party.”5          The Rule explains, however, that it “does not

limit the power of a court to entertain an independent action to

relieve a party from a judgment.”6                   An independent action is

brought in equity to set aside judgments that would result in a

manifest miscarriage of justice, and requires, among other things,

“the absence of fault or negligence on the part of the defendant.”7

     In United States v. Beggerly,8 the Supreme Court explained

that independent actions must not be allowed to subvert the one-

year statute of limitations for Rule 60 actions:

     4
         Id.
     5
         FED. R. CIV. P. 60(b)(2)-(3).
     6
         FED. R. CIV. P. 60(b).
     7
         11 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE             AND
PROCEDURE § 2868 (2d ed. 1995).
     8
         524 U.S. 38, 46-47 (1998).
                             No. 03-11038
                                  -4-

             If   relief  may   be   obtained   through  an
             independent action in a case such as this,
             where the most that may be charged against the
             Government is a failure to furnish relevant
             information that would at best form the basis
             for a Rule 60(b)(3) motion, the strict 1- year
             time limit on such motions would be set at
             naught. Independent actions must, if Rule
             60(b) is to be interpreted as a coherent
             whole, be reserved for those cases of
             injustices which, in certain instances, are
             deemed   sufficiently   gross   to   demand  a
             departure from rigid adherence to the doctrine
             of res judicata.9

Accordingly, if a plaintiff’s allegations could form the basis for

a Rule 60(b)(2) or (b)(3) motion, but the action is outside the

one-year limitations period and does not rise to the level of a

miscarriage of justice, an independent action must fail.

     ABC is not within the one-year limitations period because it

has known the basis of its fraud allegations at least since 1993.

The complaint in this case itself notes that ABC has held the “new”

documents necessary to investigate and allege Orix’s fraudulent

actions since 1998.    Therefore, ABC must demonstrate that allowing

the judgments at issue to stand would work a grave miscarriage of

justice.10

     Based on the face of the complaint and on previous judgments

of which the district court took judicial notice, the district

court properly dismissed ABC’s complaint because it is clear that

“no relief could be granted under any set of facts that could be



     9
          Id. at 46 (internal quotations omitted).
     10
          See Beggerly, 524 U.S. at 47.
                            No. 03-11038
                                 -5-

proved consistent with the allegations.”11   ABC and Orix have been

in some form of litigation over the past fifteen years.     It has

claimed that Orix fraudulently overcharged it in numerous courts,

and it could have raised the allegations during the bankruptcy

proceeding.     A previous panel noted ABC’s intentional delay in

raising Orix’s alleged fraud in order to manipulate the litigation

process.12    ABC could have brought timely Rule 60(b)(2) or (b)(3)

motions within one year after these judgments, but for whatever

reason, it did not do so.   Given that the allegations at most form

the basis of a Rule 60(b)(2) or (b)(3) motion and that ABC’s choice

to reserve these allegations until a later day precludes a finding

of a manifest miscarriage of justice, an independent action cannot

be maintained.13

     AFFIRMED.




     11
       American Waste & Pollution Control Co. v. Browning-Ferris,
Inc., 949 F.2d 1384, 1386 (5th Cir. 1991) (quoting Baton Rouge
Bldg. & Constr. Trades Council v. Jacobs Constructors, Inc., 804
F.2d 879, 881 (5th Cir. 1986)).
     12
       ABC Asphalt Inc. v. Credit Alliance Corp., No. 94-10118 (5th
Cir. May 15, 1995) (“By lying behind the log until after it
received an adverse judgment to play its alternative ‘conflict
card,’ ABC failed to protect its own interests in a timely fashion.
ABC cannot now seek a second bite at the apple under Rule 60(b)(6).
No manifest injustice is present here.”).
     13
        Beggerly, 524 U.S. at 46-47; Humanetics Inc. v. Kerwit
Medical Products, Inc., 709 F.2d 942, 943-44 (5th Cir. 1983).
