[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14893 May 16, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 95-03237-CV-HS-S
USX CORPORATION,
HEATHERWOOD GOLF CLUB, INC.,
Plaintiffs-Counter-
Defendants-Appellees,
versus
TIECO, INC.,
ATOZ MANAGEMENT, INC., et.al,
Defendants-Counter-
Claimants-Appellants.
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Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 16, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
TIECO, Inc., ATOZ Management, and Fletcher Yielding (collectively
TIECO) appeal the district court’s denial of TIECO’s Federal Rule of Civil
Procedure 60(b) motion for a new trial in its action against USX Corporation and
Heatherwood Golf Club, Inc. (collectively USX). TIECO claims the district court
abused its discretion by (1) denying TIECO’s motion for a new trial, and
(2) denying TIECO an evidentiary hearing on its motion for a new trial. The
district court did not abuse its discretion, and we affirm.
I. BACKGROUND
This litigation arose from the discovery by USX that USX’s Heatherwood
Golf Club and its tractor shop, with the assistance of TIECO, performed an end-
run around USX’s corporate procurement system. USX filed an action against
TIECO on December 15, 1995 asserting claims pursuant to 28 U.S.C. §§ 1331,
1367, and 18 U.S.C. § 1964. TIECO filed a counterclaim against USX, asserting
causes of action for civil conspiracy, violation of 42 U.S.C. § 1983, malicious
prosecution, abuse of process, interference with business relations, interference
with employee relations, misrepresentation, defamation, and selective prosecution.
During trial, the district court dismissed all of USX’s claims as a sanction
for discovery abuse. USX had failed to produce requested documents dealing with
Cushman vehicles and the tractor shop. The dismissal of USX’s claims took place
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while the jury was deliberating. After, and in accordance with the jury’s verdict,
the district court entered an order awarding TIECO $7,175,000 on its
counterclaims. USX appealed both the sanction of dismissal and the jury verdict
on TIECO’s counterclaims.
On appeal, this Court sustained the dismissal of USX’s claims as a
discovery sanction, reversed the district court’s entry of judgment on TIECO’s
jury verdict, and remanded for entry of judgment for USX on TIECO’s
counterclaims. This Court remanded the case because probable cause existed for
USX to prosecute TIECO, thus precluding TIECO’s counterclaims.
TIECO now requests another trial pursuant to Federal Rule of Civil
Procedure 60(b)(3), claiming it has established a colorable claim of fraud on the
court and misconduct by USX that prevented TIECO from presenting a full and
fair presentation of its counterclaims.
II. DISCUSSION
TIECO claims it is entitled to a new trial because of USX’s discovery
abuses before, during, and after trial. TIECO claims because of these abuses, it
was unable to fully and completely present its counterclaims. TIECO asserts the
documents dealing with Cushman vehicles and the tractor shop, which USX was
sanctioned for not producing, caused TIECO’s judgment to have been obtained
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through fraud, misrepresentation, or other misconduct. TIECO further claims an
affidavit by former Attorney General Investigator Larry Miller provided to TIECO
in August of 2002 regarding USX’s failure to disclose exculpatory evidence to the
Attorney General’s Office for purposes of its criminal investigation constitutes
newly discovered evidence.
USX claims this case has already been decided under the law of the case
doctrine.1 USX claims because the evidence it was sanctioned for not providing at
trial was before us on the first appeal, we have already ruled in USX’s favor with
the relevant evidence before us.
We review both the denial of a Rule 60(b) motion for a new trial, and the
denial of an evidentiary hearing under the abuse of discretion standard. Cliff v.
Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004), American
Bankers Ins. Co. v. Northwestern Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir.
1999). A Rule 60(b)(3) movant has the burden of proving by clear and convincing
evidence that (1) the judgment has been obtained through fraud,
misrepresentation, or other misconduct, and (2) the conduct complained of
1
“Under the law of the case doctrine, both the district court and the appellate court are
generally bound by a prior appellate decision of the same case. The law of the case doctrine,
however, bars consideration of only those legal issues that were actually, or by necessary
implication, decided in the former proceeding.” Oladeinde v. City of Birmingham, 230 F.3d
1275, 1288 (11th Cir. 2000) (internal quotations and citations omitted).
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prevented the movant from fully and fairly presenting its case. Frederick v. Kirby
Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000).2
We need not decide whether the law of the case doctrine applies, because
we agree with the district court that none of the discovery TIECO could obtain
would change in any meaningful or relevant way the earlier ruling of this Court
that the accounting/billing scheme supplied sufficient probable cause for USX’s
actions against TIECO. The documents produced by USX after trial (and made
part of the appellate record in the earlier appeal), or evidence derived from those
documents would not change this Court’s ruling on probable cause.
We also agree with the district court that any evidence that may be
subsequently developed by TIECO about what USX knew about the truth of the
allegations made to the Attorney General’s Office and when it knew it, or USX’s
level of participation in the decisions of the Attorney General’s Office, would not
change this Court’s probable cause analysis.
2
In TIECO’s reply brief, it further claims the district court should have awarded a new
trial under Federal Rule of Civil Procedure 60(b)(2). Because TIECO did not argue this avenue
for relief in its initial brief, this argument is deemed abandoned. See United States v. Thomas,
242 F.3d 1028, 1033 (11th Cir. 2001).
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III. CONCLUSION
We find the district court did not abuse its discretion in (1) denying
TIECO’s motion for a new trial, and (2) denying TIECO an evidentiary hearing on
its motion for a new trial.
AFFIRMED.
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