Government Financial Services One Ltd. Partnership v. Peyton Place, Inc.

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.

18