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opinion should not be published and is not precedent except under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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