Case: 12-10562 Document: 00512140997 Page: 1 Date Filed: 02/11/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 11, 2013
No. 12-10562 Lyle W. Cayce
Summary Calendar Clerk
CHRISTOPHER MICHAEL WANKEN,
Plaintiff-Appellant
v.
JOHN DWIGHT WANKEN; RAYMOND JAMES
FINANCIAL SERVICES INC,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC 3:10-CV-556
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Pro se Plaintiff-Appellant Christopher Wanken appeals the district court’s
order denying his motion for relief under Federal Rule of Civil Procedure
60(b)(6). Wanken’s Rule 60(b)(6) motion seeks relief from a judgment confirming
an adverse arbitration award. Wanken claims that the district court ignored
new evidence that demonstrates Defendants-Appellees John Wanken and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-10562
Raymond James Financial Services, Inc. gave perjured testimony and
fraudulently procured an award in the underlying arbitration proceeding. For
the following reasons, the district court’s order is AFFIRMED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual background of this case has been extensively documented both
in this court and the district court. See Wanken v. Wanken, 451 F. App’x 319,
320-21 (5th Cir. 2011). For purposes of Wanken’s Rule 60(b)(6) motion, it is
sufficient to observe that this case arises out of an adverse arbitration award
and Wanken’s subsequent motion to vacate and modify the award pursuant to
9 U.S.C. § 10(a). In response to Wanken’s motion, John Wanken and Raymond
James Financial Services Inc. (collectively “Appellees”) filed motions to dismiss.
On February 7, 2011, the district court accepted a magistrate judge’s findings
and recommendations that Appellees’ motions to dismiss be converted to cross-
motions to confirm the arbitration award and that those motions be granted.
Wanken appealed. On September 29, 2011, this court issued an opinion
affirming the district court’s judgment. Thereafter, the Supreme Court denied
Wanken’s petition for certiorari.
Wanken then filed a motion for relief under Rule 60(b)(6). The district
court did not request a response from Appellees and denied Wanken’s motion on
April 30, 2012. Wanken timely filed a notice of appeal on May 25, 2012, and an
amended notice of appeal on May 29, 2012.
II. STANDARD OF REVIEW
We review a district court’s denial of a Rule 60(b) motion for an abuse of
discretion. See Warfield v. Byron, 436 F.3d 551, 555 (5th Cir. 2006). Pursuant
to Rule 60(b)(6), a court may set aside a judgment for any reason justifying relief
that is not otherwise provided for under Rule 60. Lowry Dev., L.L.C. v. Groves
& Assocs. Ins., Inc., 690 F.3d 382, 386 n.12 (5th Cir. 2012). Relief under Rule
60(b)(6) “will be granted only if extraordinary circumstances are present.” Batts
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v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995) (citation and internal
quotation marks omitted).
III. DISCUSSION
Wanken’s Rule 60(b)(6) motion primarily argues that the district court
abused its discretion in not considering new evidence contained in a final report
(“Report”) issued by the Texas Workforce Commission (“TWC”).1 According to
Wanken, he first saw the Report on March 16, 2012. The Report allegedly
demonstrates that Appellees offered perjured testimony and procured an award
in the underlying arbitration proceeding by fraud. We conclude that the district
court did not abuse its discretion in denying Wanken’s Rule 60(b)(6) motion.2
First, although repeatedly asserting that the Report “clearly
demonstrate[s] that [Appellees] contradicted all of [their] . . . arbitration
testimony . . . on every material issue that was decided at arbitration,” Wanken
1
In what this court construes as a mistaken attempt to raise the stakes of this appeal,
Wanken for the first time alleges that John Wanken was responsible for the death of John
Wanken’s wife and Wanken’s mother, Vicki Wanken. Wanken further asserts that John
Wanken impersonated Wanken and accessed his email records and bank accounts. Aside from
being conclusory and inappropriate in what is, for all intents and purposes, a suit against
enforcement of an arbitration award, such charges also were not raised before the district
court, and this court declines now to consider them. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991) (per curiam).
2
The district court’s denial of Wanken’s motion is also affirmed to the extent he seeks
reconsideration of arguments previously rejected by both the district court and this court on
appeal. For example, Wanken’s brief states that Appellees contradicted their arbitration
testimony during investigations by the TWC. This contention is identical to the one Wanken
previously raised. Wanken, 451 F. App’x at 321-22 (“Specifically, [Wanken] argues that John
Wanken gave fraudulent testimony during the arbitration proceedings and concealed
documents to deny him the opportunity to present his claims fully to the panel.”). We rejected
that argument as unsupported by the record. Id. at 322. We observed that the allegedly
perjured testimony related to whether Wanken was an employee or an independent contractor
of John Wanken. Id. This testimony was irrelevant, however, because the issue in the
arbitration proceeding was whether Wanken was a partner at Beacon Financial, a firm owned
by John Wanken and operated as an independent branch office of Raymond James Financial
Services, Inc. Id. at 320, 322. “Whether Wanken was an employee or independent contractor
is not relevant to whether he was a partner—and John Wanken has consistently maintained
that Wanken was not a partner at Beacon Financial.” Id. at 322.
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nowhere elaborates on either the substance of the testimony or the material
issues at stake. Wanken’s brief is filled with similar conclusory statements.
Wholly unaddressed is our prior observation that the issue during arbitration
“was whether Wanken was a partner at Beacon Financial.” Wanken, 451 F.
App’x at 322. Equally unexplained is how the Report would show that Appellees
colluded and conspired to procure the arbitration award by fraud. Wanken does
not compare Appellees’ testimony during the arbitration and in the Report.
Such omissions prevent Wanken from demonstrating the kind of “extraordinary
circumstances” necessary for granting relief under Rule 60(b)(6).3 We thus agree
with the district court’s conclusion that the Report is “simply another attempt
at the same argument—that Defendant John Wanken took allegedly
inconsistent positions with the arbitration panel and the TWC.” This argument
was already rejected on appeal, and Wanken has failed to offer anything new to
contradict that result.
Second, aside from his own conclusory statements describing the contents
of the Report, Wanken has not offered the Report in support of his motion.
Wanken explains his decision not to submit the Report as compelled by Texas
law. According to Wanken, the TWC will not disclose the Report without a
formal court order. This statement is confusing given that Wanken appears to
be in possession of the Report. Moreover, Wanken does not cite to any statute
prohibiting such a disclosure. Wanken cites TWC Rule 13, but that rule does not
contain such a prohibition. See 40 Tex. Admin. Code § 815.113. Wanken
3
Although Wanken’s motion is brought under Rule 60(b)(6), his reliance on the
previously unavailable Report resembles a motion brought under Rule 60(b)(2). Rule 60(b)(2)
provides for relief based on “newly discovered evidence.” Goldstein v. MCI WorldCom, 340
F.3d 238, 257 (5th Cir. 2003). We have “consistently held that relief under 60(b)(6) is mutually
exclusive from relief under sections (1)-(5).” Hesling v. CSX Transp., Inc., 396 F.3d 632, 643
(5th Cir. 2005). In any event, Wanken does not rely on Rule 60(b)(2) and relief thereunder
would be precluded by Wanken’s failure to show how the evidence “would have produced a
different result if present before the original judgment.” Goldstein, 340 F.3d at 257.
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generally points to section 815 of the Texas Administrative Code as governing
disclosure of the Report, but again does not point to any specific provision. The
absence of a statutory basis for Wanken’s decision not to disclose the Report
exacerbates the omissions already discussed.
Third, we reject Wanken’s characterization of the district court as willfully
closing its eyes to evidence critical to Wanken’s motion. Wanken described the
district court as stating that “it could not care less about the evidence—and that
the evidence was not going to change its mind, no matter what the evidence
showed.” That is incorrect. The district court did not state that it would remain
unmoved regardless of what the evidence might show. Rather, Wanken failed
to describe anything in the Report that would alter the outcome of the district
court’s original decision to confirm the arbitration award. The district court also
relied on our prior holding that even if evidence like the Report showed
inconsistencies between Appellees’ testimonies, such contradictions would be
irrelevant in light of the statement’s failure to relate the evidence to Wanken’s
purported status as a partner at Beacon Financial. As we previously held,
“[e]ven assuming, however, that John Wanken did take inconsistent positions
. . . this particular issue had no bearing on the arbitration proceedings.”
Wanken, 451 F. App’x at 322.
We conclude that Wanken’s Rule 60(b)(6) motion is for all intents and
purposes an attempt to relitigate issues addressed in our prior opinion affirming
the district court’s confirmation of the underlying arbitration award. Wanken’s
allegations are conclusory and his description of the Report nonexistent.
Mindful that our review of the district court’s judgment is for abuse of discretion,
we find that Wanken’s motion fails to satisfy Rule 60(b)(6)’s high burden.
IV. CONCLUSION
The district court’s order denying Wanken’s Rule 60(b)(6) motion is
AFFIRMED.
5