United States Court of Appeals,
Fifth Circuit.
No. 94-30297.
GOVERNMENT FINANCIAL SERVICES ONE LIMITED PARTNERSHIP, Plaintiff-
Appellee,
v.
PEYTON PLACE, INC. and I-10 Inc. fka Management Equities
Corporation, Defendants,
Peyton Place, Inc., Defendant-Appellant.
Sept. 7, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
Peyton Place, Inc., appeals from the district court's denial
of both its motion for relief from judgment, see Fed.R.Civ.P.
60(b), and its motion for a new trial, see Fed.R.Civ.P. 59(a). We
affirm.
I
At the time of the events underlying this suit, Robert
Guastella was President of Management Equities Corp. ("MEC"), now
known as I-10, Inc., and a shareholder and employee of Peyton
Place, Inc. ("Peyton Place"). MEC executed a promissory note in
the amount of $600,000 in favor of Southern Savings Bank ("Southern
Savings"). The $600,000 note was secured by a mortgage encumbering
a hotel in New Orleans, Louisiana. Ownership of the hotel was
subsequently transferred to Peyton Place, which assumed the
1
indebtedness.
Several years after the hotel mortgage was executed, Robert
Guastella obtained a loan from Southern Savings in the amount of
$114,000, which was secured by a mortgage on his residence, 3721
Rue Chardonnay, in Metairie, Louisiana. Soon thereafter, Peyton
Place executed a mortgage encumbering two units of Metairie
condominiums known as Peyton Place Condominiums, both of which are
owned by Peyton Place.
The Resolution Trust Corporation ("RTC"), during the time it
was the receiver for Southern Savings,1 filed suit in state court
against Peyton Place and I-10, seeking to foreclose on the
condominium mortgage. The RTC contended that the condominium
mortgage was executed as additional security for the $600,000 note,
which is past due. Peyton Place contends that the condominium
mortgage was executed as additional security for the $114,000
residential loan.
The court presiding over the foreclosure proceedings scheduled
a sheriff's sale of the condominiums. Before the sale could take
place, however, Peyton Place filed a "Petition for Issuance of an
Injunction to Arrest Seizure and Sale under Executory Process," and
the RTC removed the matter to federal court.
At the federal district court's hearing on Peyton Place's
request for injunctive relief, Peyton Place submitted to the court
1
Government Financial Services One Limited Partnership
("GFS") is currently the receiver for Southern Savings and has
been substituted as Plaintiff-Appellee for the purposes of this
appeal.
2
a photocopy of the condominium mortgage that is on file in the
Jefferson Parish Mortgage Office.2 On its face, the mortgage
stipulates that it secures the $600,000 promissory note assumed by
Peyton Place. Peyton Place contended at the hearing that the
mortgage had been altered before it was filed, and called several
witnesses to testify in support of its assertion.
The district court denied Peyton Place's request for
injunctive relief, concluding that Peyton Place "had not sustained
their burden on the issue of fraud or lack of authenticity so as to
justify setting aside a mortgage which on its face[ ] appeared to
be duly prepared, executed, and recorded." Peyton Place filed a
"Motion to Supplement, for New Trial and/or for Relief from
Judgment," in which it moved for a new trial under Rule 59 of the
Federal Rules of Civil Procedure or, in the alternative, relief
from the court's judgment under Rule 60(b) of the Federal Rules of
Procedure. Peyton Place filed three memoranda in support of its
motion.
With the motion, Peyton Place filed a "Memorandum in Support
of Motion to Supplement, for New Trial and/or for Relief from
Judgment" (the "First Memorandum"), in which it stated that it had
obtained three appraisal sketches of 3721 Rue Chardonnay. Peyton
Place argued that the court should reconsider its judgment in light
2
Peyton Place claims that it has not been able to find a
copy of the condominium mortgage in its own files. Robert
Guastella testified at the hearing that he was present at the
signing, but that he did not receive a copy at that time. He
further testified that he does not know if Peyton Place ever
received a copy of the condominium mortgage.
3
of the sketches.
Peyton Place later filed an "Ex Parte Motion to File
Supplemental Memorandum and Memorandum in Support" (the "Second
Memorandum"), in which it informed the court that it had obtained
a copy of a forbearance agreement between Peyton Place and Southern
Savings,3 and that it had discovered that the first page of the
condominium mortgage filed in the Jefferson Parish mortgage records
is a photocopy.4 Peyton Place argued that its discovery of the
agreement and missing mortgage page provided further reason for the
court to reconsider its judgment.
Peyton Place then filed an "Ex Parte Motion to File Second
Supplemental Memorandum in Support of Motion for New Trial and/or
Relief from Judgment and Memorandum in Support" (the "Third
Memorandum"), in which it stated that it had received a letter from
Oster & Wegener, Southern Savings' attorneys, and that Oster &
Wegener claimed in the letter that all of the documents in their
possession concerning the relevant loans and mortgage had been
seized by the RTC before the trial. In its Third Memorandum,
3
In the forbearance agreement, Southern Savings agrees to
forbear from foreclosing on the hotel mortgage securing the
$600,000 promissory in exchange for the assignment of Peyton
Place's proceeds from a contract that Peyton Place had entered
into with a third party. Peyton Place contends that the
forbearance agreement, which was executed slightly over a month
before the condominium mortgage, is evidence that the condominium
mortgage was not executed as security for the $600,000 note.
4
The front and back of the "first page" of the condominium
mortgage on file in the mortgage office are the first two pages
of the original mortgage, and both sides are photocopies. Both
sides of the "second page," the third and fourth pages of the
original, are originals.
4
Peyton Place argued that the RTC's failure to produce these
documents at trial provided additional grounds for the court to
reconsider its judgment.
The district court denied Peyton Place's motion, concluding
that it "amount[ed] to little more than an attempt to reargue its
case through a new attorney."5 Peyton Place appeals the district
court's denial, claiming that the court erred in holding that it
was not entitled to either a new trial under Rule 59 or relief from
the court's judgment under Rule 60(b).6
II
Under Federal Rule of Civil Procedure 60(b), a court may
relieve a party from a final judgment on the basis of newly
discovered evidence, evidence of misconduct on the part of an
5
Peyton Place obtained new counsel after the denial of its
request for injunctive relief.
6
Our caselaw provides some support for the contention that
motions brought under Rules 59 and 60(b) are mutually exclusive.
For example, we stated in Goodman v. Lee, 988 F.2d 619 (5th
Cir.1993), that:
Recognizing that Federal Rules of Civil Procedure 59
and 60 may be used to correct similar errors, this
Circuit has established a bright line rule for
distinguishing Rule 59 motions from Rule 60 motions.
If a motion is served within ten (10) days following
the entry of judgment and draws into the question the
correctness of the judgment, it will be treated as a
Rule 59 motion for purposes of determining the timing
of notices of appeal from the judgment.
Id. at 623 n. 2; accord Prudential-Bache Sec., Inc. v.
Fitch, 966 F.2d 981, 984 (5th Cir.1992). Because the
district court considered both of Peyton Place's asserted
grounds for relief, and because neither the RTC nor GFS has
argued that we should not, we review both Peyton Place's
Rule 59 and Rule 60(b) claims.
5
adverse party, or "any other reason justifying relief from the
operation of the judgment."7 We will reverse a district court's
denial of a Rule 60(b) motion only if the court abused its
discretion. First Nationwide Bank v. Summer House Joint Venture,
902 F.2d 1197, 1200-01 (5th Cir.1990). We apply this deferential
standard "to ensure that 60(b) motions do not undermine the
requirement of a timely appeal." Id. " "[T]o overturn the
district court's denial of [a] Rule 60(b) motion, it is not enough
that a grant of the motion might have been permissible or
warranted; rather, the decision to deny the motion must have been
sufficiently unwarranted as to amount to an abuse of discretion.'
" Lancaster v. Presley, 35 F.3d 229, 231 (5th Cir.1994) (quoting
Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir.1977)), cert. denied,
--- U.S. ----, 115 S.Ct. 1380, 131 L.Ed.2d 233 (1995).
A
Peyton Place contends that the district court's denial of its
Rule 60(b) motion was erroneous in light of the newly discovered
7
Rule 60(b) provides that a court may:
relieve a party ... from a final judgment ... for the
following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (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); (3) fraud ..., misrepresentation, or other
misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released,
or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b).
6
evidence. Under Rule 60(b)(2),8 a court may relieve a party from
a final judgment on the basis of "newly discovered evidence which
by due diligence could not have been discovered in time to move for
a new trial under Rule 59(b)."9 "To succeed on a motion brought
under 60(b)(2) based on newly discovered evidence, the movant must
demonstrate (1) that it exercised due diligence in obtaining the
information and (2) "the evidence is material and controlling and
clearly would have produced a different result if presented before
the original judgment.' " New Hampshire Ins. Co. v. Martech USA,
Inc., 993 F.2d 1195, 1200-01 (5th Cir.1993) (footnote omitted)
(quoting Brown v. Petrolite Corp., 965 F.2d 38, 50 (5th
Cir.1992)).10 "The newly discovered evidence must be in existence
8
Although Peyton Place specifically refers only to
subsections (3) and (6) as bases for its Rule 60(b) motion, we
construe its argument for Rule 60(b) relief on the basis of newly
discovered evidence to be a claim under subsection (2). See
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356 (5th
Cir.1993) (stating that Rule 60(b) should be liberally construed
in order to do substantial justice).
9
Rule 59(b) provides that, under Rule 59, "[a] motion for a
new trial shall be served not later than 10 days after the entry
of the judgment." Although Peyton Place filed a Rule 59 motion
for a new trial along with its motion for relief from judgment
under Rule 60(b), Peyton Place does not base its Rule 60(b)(2)
claim on evidence that it obtained within ten days after the
entry of judgment. Ten days after entry of judgment, Peyton
Place had only filed its First Memorandum in support of its Rule
59 motion. The First Memorandum mentions only the discovery of
the appraisal sketches, which have not been mentioned since. The
evidence on which Peyton Place bases its Rule 60(b)(2) motion was
presented in the Second Memorandum and Third Memorandum, which
were filed more than ten days after the entry of judgment.
10
See Chilson v. Metropolitan Transit Auth., 796 F.2d 69, 72
(5th Cir.1986) (" "[T]he movant must show that the evidence was
discovered following the trial, that he used due diligence to
discover the evidence at the time of the trial, that the evidence
is not merely cumulative nor impeaching, that it is material, and
7
at the time of trial and not discovered until after trial."
Longden v. Sunderman, 979 F.2d 1095, 1102-03 (5th Cir.1992).
In its Third Memorandum, Peyton Place provided a "summary of
the new evidence obtained by Peyton Place, Inc. since the trial,"
listing: (1) "The fact that the first page (front and back) of the
condominium mortgage in the Jefferson Parish mortgage records is a
photocopy, while the last page is an original;" (2) "The
Assignment of Proceeds of Contract in which Southern Savings agreed
to forbear from foreclosure over a month before the condominium
mortgage was, according to the R.T.C./Southern Savings, executed in
order to obtain forbearance;" and (3) "The response from Oster &
Wegener that the R.T.C. seized all of the Oster & Wegener files in
[D]ecember 1990 or January 1991, including the files relating to
the $114,000 loan and the condominium mortgage."11
Peyton Place all but concedes that the fact that the first
page of the condominium mortgage in the Jefferson Parish mortgage
records is a photocopy is not newly discovered evidence, stating in
its brief on appeal that "the physical evidence of alteration on
the first page of the mortgage is not newly discovered evidence,
but evidence that was already entered into evidence at trial."
Although the fact that the first page of the recorded mortgage is
that a new trial in which the evidence was introduced would
probably produce a different result.' " (quoting Johnson Waste
Materials v. Marshall, 611 F.2d 593, 597 (5th Cir.1980)).
11
Peyton Place did not include the appraisal sketches
discussed in its First Memorandum in its Third Memorandum's list
of "evidence obtained since trial." Because Peyton Place does
not mention the sketches in its brief on appeal, we do not
consider them as a basis for its 60(b)(2) claim.
8
a photocopy was not mentioned at trial, evidence at trial showed
that Peyton Place did have access to the document.12 Peyton Place
did not contend in its memoranda in support of its Rule 60(b)(2)
motion or in its brief on appeal that it did not have access to the
document either before or during the trial. Therefore, we conclude
that Peyton Place failed to demonstrate to the district court that
it could not have obtained the information before or during the
trial even if it had exercised due diligence. See Longden, 979
F.2d at 1103 (affirming denial of Rule 60(b)(2) motion in part
because movant did not show due diligence).
Peyton Place contends on appeal that the "Assignment of
Proceeds of Contract and the forbearance agreement referred to in
it were not found until after the trial and judgment." However, in
its Second Memorandum, Peyton Place stated that it obtained a copy
of the assignment of proceeds of contract containing the
forbearance agreement "from the records of Jefferson Parish."
Peyton Place has never contended that it did not have access to
this document either before or during the trial. Therefore, we
conclude that Peyton Place failed to demonstrate to the district
court that it could not have obtained a copy of the contract and
agreement contained therein before or during the trial even if it
had exercised due diligence. See id.
12
When asked about the condominium mortgage at trial, Robert
Guastella testified that he, Charles Kovacs, and Donald Guastella
"went down to the Mortgage Office" and "[t]hat's when we found
it." When asked about the condominium mortgage, Donald Guastella
testified that: "I saw it across the river in the Mortgage
Office [in Gretna]."
9
Peyton Place contends on appeal that: "The fact that the
Oster & Wegener files were seized by the R.T.C. years before trial
was not discovered until after trial." However, in its Third
Memorandum, Peyton Place describes how it obtained this
information, stating: "Peyton Place, Inc. served a subpoena duces
tecum on the law firm of Oster & Wegener for its files concerning
the $114,000 loan from Southern Savings Bank to Robert Guastella
and for the "duplicate original' and other documents relating to
the Peyton Place condominium mortgage." In response to the
subpoena, Peyton Place notes, Oster & Wegener sent a letter
stating: " "In response to the Subpoena issued by you ... please
be advised that all of the documents requested were seized by the
Resolution Trust Corporation in December of 1990 or January
1991.... If any of the alleged documents exist, it would be in the
possession of the R.T.C.' " (ellipses in Third Memorandum).
Peyton Place has never contended that it could not have obtained
this information either before or during the trial. Therefore, we
conclude that Peyton Place failed to demonstrate to the district
court that it could not have obtained the information before or
during the trial even if it had exercised due diligence, and hold
that the district court did not abuse its discretion in refusing to
grant Peyton Place's Rule 60(b)(2) motion. See id.
B
Peyton Place next contends that the district court's denial
of its Rule 60(b) motion was erroneous in light of the evidence of
the RTC's misconduct. Under Rule 60(b)(3), "A party making a Rule
10
60(b)(3) motion must "establish by clear and convincing evidence
(1) that the adverse party engaged in fraud or other misconduct and
(2) that this misconduct prevented the moving party from fully and
fairly presenting his case.' " Washington v. Patlis, 916 F.2d
1036, 1039 (5th Cir.1990) (quoting Montgomery v. Hall, 592 F.2d
278, 278-79 (5th Cir.1979)); accord Diaz v. Methodist Hosp., 46
F.3d 492, 496 (5th Cir.1995). "The purpose of the rule is to
afford parties relief from judgments which are unfairly obtained,
not those which may be factually incorrect." Diaz, 46 F.3d at 496;
accord Johnson v. Offshore Exploration, Inc., 845 F.2d 1347, 1359
(5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d
533 (1988).
Peyton Place argues that the "R.T.C.'s failure to produce
critical documents is sufficient misconduct to require relief from
the judgment under Rule 60(b)(3)." In its brief on appeal, Peyton
Place claims: (1) "The R.T.C. did not produce a single document
from the Oster & Wegener files," which it contends "must" contain
a copy of the condominium mortgage, "likely" contain a duplicate
original of the mortgage, and "in all likelihood" contain "some
communication or memo or notes ... concerning the purpose or intent
of the condominium loan;" (2) "[T]he R.T.C. failed to produce the
Southern Savings condominium file," speculating that "[s]urely,
there must have been a copy of the condominium mortgage in the
files of Southern Savings files [sic], or at least one document
dealing with the condominium mortgage;" and (3) "The R.T.C. failed
to produce or disclose the forbearance agreement or the Assignment
11
of Proceeds of Contract referring to the forbearance agreement,"
opining that "it is not credible" that Southern Savings and Oster
& Wegener's files did not contain a copy.
"Our cases have held that a party may engage in rule 60(b)(3)
misconduct if he fails to disclose evidence he knows about and the
production of such evidence was clearly called for "by any fair
reading' of the discovery order." Montgomery, 592 F.2d at 279
(quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1341 (5th
Cir.1978)). Even if we assume that Peyton Place clearly asked the
RTC for all the documents on which it bases its Rule 60(b)(3)
claim,13 Peyton Place did not provide the district court with "clear
and convincing evidence" that the RTC engaged in any misconduct
concerning those documents because it did not show by clear and
convincing evidence that the RTC has ever had the documents in its
possession. As support for its claim, Peyton Place relied solely
on the letter it received from Oster & Wegener, which merely states
that all documents concerning Southern Savings that were in the law
firm's possession were seized by the RTC and that "[i]f any of the
alleged documents exists, it would be in the possession of the
R.T.C." Because Peyton Place did not provide the district court
with clear and convincing evidence that any of these documents have
ever been in the RTC's possession, its Rule 60(b)(3) claim with
13
We note that Robert Guastella did not testify that Peyton
Place subpoenaed Oster & Wegener's files; indeed, Peyton Place
contends on appeal that it did not learn that the RTC had seized
those files until after the district court entered its judgment.
See Montgomery, 592 F.2d at 279 (rejecting 60(b)(3) claim because
discovery order could not fairly be read to require disclosure of
evidence).
12
respect to the documents fails. Compare Rozier, 573 F.2d at 1341-
42 (reversing district court's denial of appellant's Rule 60(b)(3)
claim based on affidavit showing that appellee knew that it had
requested document in its possession but failed to produce it).
Even if Peyton Place had shown that the RTC possessed an
original duplicate of the mortgage, a photocopy of the mortgage, or
any other document it hypothesizes might have been seized by the
RTC, Peyton Place did not provide the district court with clear and
convincing evidence that the RTC's failure to produce any of these
documents prevented it from fully and fairly presenting its case.
See Washington, 916 F.2d at 1039 (requiring that movant support
Rule 60(b)(3) motion based on misconduct with clear and convincing
evidence that misconduct prevented movant from fully and fairly
presenting its case). Peyton Place can only speculate that an
original duplicate or additional copy of the mortgage would have
supported its claims. Similarly, it can only suggest that any
communication, memo, or notes regarding the purpose or intent of
the condominium loan that might have been in the RTC's possession
would bolster its argument. Peyton Place can establish by clear
and convincing evidence the contents of the forbearance agreement,
but it cannot argue that the RTC's failure to produce this document
prevented Peyton Place from fully and fairly presenting its case
because this document was available to Peyton Place at trial. See
supra part II.A.; see also Diaz, 46 F.3d at 497 (affirming Rule
60(b)(3) denial because appellant had "independent access" to
information allegedly withheld from her, information was not "under
13
the exclusive control of the Appellees," and it was "likely that a
more focused effort by Appellant could have uncovered th[e]
evidence prior to trial"). Therefore, we conclude that Peyton
Place's Rule 60(b)(3) claim also fails, and hold that the district
court did not abuse its discretion in refusing to grant Peyton
Place's Rule 60(b)(3) motion.
C
Lastly, Peyton Place contends that it is entitled to relief
from the district court's judgment under Rule 60(b)(6), which
provides that a court may grant such relief for "any other reason
justifying relief from the operation of the judgment." Section
(b)(6)'s "any other reason" language refers to any reason other
than those contained in the five enumerated grounds on which a
court may grant a Rule 60(b) motion. Klapprott v. United States,
335 U.S. 601, 614-15, 69 S.Ct. 384, 390, 93 L.Ed. 266 (1949);
Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.),
cert. denied, 493 U.S. 977, 110 S.Ct. 504, 107 L.Ed.2d 506 (1989).
"Rule 60(b)(6) "is a grand reservoir of equitable power to do
justice in a particular case when relief is not warranted by the
preceding clauses.' " Harrell v. DCS Equip. Leasing Corp., 951
F.2d 1453 (5th Cir.1992) (quoting). "Relief under this section is
granted "only if extraordinary circumstances are present.' "
American Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 815-16
(5th Cir.1993) (quoting Picco v. Global Marine Drilling Co., 900
F.2d 846, 851 (5th Cir.1990)).
Peyton Place contends that the district court erroneously
14
refused to exercise its equitable powers under Rule 60(b)(6) to
consider "[t]he evidence obtained after the trial and judgment (the
photocopied first page in the mortgage records, the R.T.C.'s
seizure of the Oster & Wegener files, and the Assignment of
Proceeds of Contract referring to the forbearance agreement)."
Peyton Place claims in its brief on appeal that (1) it would be
"unconscionable" to enforce an obviously altered mortgage, (2) "if
it was a lack of due diligence for Peyton Place to [fail to] check
the mortgage records before trial, it was an equal lack of due
diligence for the R.T.C. not to check the mortgage records before
filing the petition for foreclosure," and (3) the inequity of
enforcing an obviously altered mortgage outweighs the inequity of
granting Peyton Place relief from the judgment based on evidence
that it could have obtained and presented to the district court at
trial had it exercised due diligence.
Even if we assume what Peyton Place fails to argue, that
Peyton Place has stated a Rule 60(b)(6) claim distinct from its
Rule 60(b)(2) and (b)(3) claims, its Rule 60(b)(6) claim fails
because we have expressly held that a district court's equitable
powers under section (b)(6) do not extend to considering evidence
that could have been presented at trial. "This clause of the Rule
provides "a grand reservoir of equitable power to do justice in a
particular case,' but that well is not tapped by a request to
present evidence that could have been discovered and presented at
trial through the exercise of due diligence." United States v.
329.73 Acres of Land, More or Less, 695 F.2d 922, 926 (5th
15
Cir.1983) (quoting). Had it exercised due diligence, Peyton Place
could have discovered and presented at trial the photocopied first
page in the mortgage records, the RTC's seizure of the Oster &
Wegener files, and the assignment of proceeds of contract referring
to the forbearance agreement. See supra part II.A. Therefore, the
district court did not abuse its discretion in refusing to grant
Peyton Place's Rule 60(b)(6) motion. See 329.73 Acres of Land, 695
F.2d at 926 (affirming denial of Rule 60(b)(6) motion based on
evidence presented after judgment because evidence could have been
presented before judgment through the exercise of due diligence).14
III
Peyton Place also contends that the district court erred in
denying its Rule 59 motion for a new trial. The district court has
discretion to grant a new trial under Rule 59(a) of the Federal
Rules of Civil Procedure when it is necessary to do so "to prevent
an injustice." United States v. Flores, 981 F.2d 231, 237 (5th
Cir.1993) (quoting Delta Eng'g Corp. v. Scott, 322 F.2d 11, 15-16
(5th Cir.1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12
L.Ed.2d 176 (1964)). The district court's decision to grant or
deny a Rule 59(a) motion will be reversed only for an abuse of
discretion. Flores, 981 F.2d at 237; Treadaway v. Societe Anonyme
Louis-Dreyfus, 894 F.2d 161, 164 (5th Cir.1990).
"Ordinarily, a district court's decision not to grant a new
14
In rejecting the Rule 60(b)(6) claim, the court in 329.73
Acres of Land noted that the movants "seek to reopen a trial to
make proof from which their claim of obvious error springs." Id.
at 926. The court emphasized that "Rule 60(b) does not allow
such supplementary trials." Id.
16
trial under Rule 59(a) is not appealable." Youmans v. Simon, 791
F.2d 341, 349 (5th Cir.1986); accord State Nat'l Bank v. United
States, 488 F.2d 890, 893 (5th Cir.1974); 11 Charles A. Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §
2818 (1995) (citing Youmans and State Nat'l Bank ). "An appeal of
the denial of a Rule 59(a) motion for a new trial merely restates
the attack on the merits of the final judgment. It is from the
final judgment that the appeal should be taken." Youmans, 791 F.2d
at 349 (citing Urti v. Transp. Commercial Corp., 479 F.2d 766, 769
(5th Cir.1973)). "The only exception to this rule is when "new
matters arise after the entry of the judgment.' " Id.
Peyton Place argues the same grounds for its Rule 59(a)
motion as it did for its Rule 60(b)(2) motion, that the district
court erred in not granting a new trial based on the evidence it
listed in its Third Memorandum as "new evidence obtained by Peyton
Place, Inc. since the trial." We have held that the denial of a
motion for a new trial on the ground of newly discovered evidence
is itself appealable. Fallen v. United States, 249 F.2d 94, 95
(5th Cir.1957); see also 11 Charles A. Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2818 (1995) (citing
Fallen ). However, to prevail on a Rule 59(a) claim based on newly
discovered evidence, the movant must have been excusably ignorant
of the facts at the time of the trial despite due diligence to
learn about them. See Owens v. International Paper Co., 528 F.2d
606, 611 (5th Cir.1976) (affirming denial of Rule 59(a) motion
based on newly discovered evidence because movants failed to make
17
requisite showings that they were inexcusably ignorant of evidence
until after trial and had employed reasonable diligence to obtain
it). Having determined that Peyton Place did not adequately
demonstrate to the district court that it could not have discovered
the evidence forming the basis for its Rule 60(b)(2) motion before
or during trial even if it had exercised due diligence, see part
II.A., we conclude that Peyton Place could not prevail on its Rule
59(a) claim based on the same evidence. Therefore, we hold that
the district court did not abuse its discretion in refusing to
grant Peyton Place's Rule 59(a) motion for a new trial. See Owens,
528 F.2d at 611 (affirming denial of Rule 59(a) motion because
movants had not demonstrated that motion was based on evidence that
they "had employed reasonable diligence to ascertain" before
trial).
IV
For the foregoing reasons, we AFFIRM the district court's
denial of Peyton Place's Rule 60(b) motion and Rule 59(a) motion.
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