# Halliburton Energy Services, Inc. v. NL Industries

> District Court, S.D. Texas · March 31, 2009 · 618 F. Supp. 2d 614

URL: https://www.frixlaw.com/law-library/cases/2525155

## Case

- **Full name:** HALLIBURTON ENERGY SERVICES, INC., Et Al., Plaintiffs, v. NL INDUSTRIES, Et Al., Defendants; TRE Management Company, Plaintiffs, v. Georgia-Pacific Corporation, Et Al., Defendants
- **Court:** District Court, S.D. Texas
- **Decided:** March 31, 2009
- **Citations:** 618 F. Supp. 2d 614; 2009 U.S. Dist. LEXIS 27509; 2009 WL 912519
- **Precedential status:** Published
- **Opinion:** Opinion by Rosenthal
- **Judges:** Lee H. Rosenthal
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2525155

## How later opinions describe it (automated extraction)

- finding that because documents were located within the party’s own files, it did not exercise due diligence in its search
- noting that review under Rule 60(b) is narrower in scope than review on direct appeal

## Opinion text

MEMORANDUM AND OPINION
LEE H. ROSENTHAL, District Judge.
Halliburton — Halliburton Energy Services, Inc. (“HESI”) and DII Industries, LLC (“DII”) — moves under Federal Rule of Civil Procedure 60(b) for relief from this court’s order confirming the awards resulting from the arbitration with the Tremont Parties — TRE Holding Corporation (“TRE Holding”), TRE Management Company (“TRE Management”), NL Industries, Inc. (“NL”), and Tremont LLC (“Tremont”) — and from the final judgment entered on the claims resolved at the arbitration. (Docket Entry No. 341). Halliburton has also moved for discovery relating to its request for relief from judgment. (Docket Entry No. 342). The Tremont Parties oppose both motions. (Docket Entry No. 350). Also pending are Halliburton’s motion for a protective order on postjudgment discovery into Halliburton’s assets, (Docket Entry No. 304), and the Tremont Parties’ cross-motion for an order preventing Halliburton from transferring or dissipating assets, (Docket Entry No. 309).
Based on the motions, the responses, the record, and the applicable law, this court denies Halliburton’s motion for relief under Rule 60(b) and its related motion for discovery. This court also denies the Tremont Parties’ motion for an order preventing Halliburton from transferring or dissipating any assets and grants Halliburton’s motion for a protective order.
1
The reasons are set out in detail below.
1. Background
The factual and procedural background of this case has been described in detail in this court’s previous opinions and orders, including those issued in July 2006, March 2008, July 2008, and August 2008. Only the background relevant to the pending motions resolved by this opinion is summarized here.
On March 31, 2008, this court entered a Memorandum and Opinion confirming the two awards resulting from the arbitration between Halliburton and the Tremont Parties (the “Confirmation Order”).
2
(Docket
*618
Entry No. 239). The arbitration awards allocated responsibility between Halliburton and the Tremont Parties for past and future costs of investigating and remediating environmental contamination at a site near Magnet Cove and Malvern, Arkansas (the “Site”). The arbitration panel concluded that Halliburton, rather than the Tremont Parties, was responsible for the costs.
In allocating the costs, the panel considered whether the Site constituted “surplus property” excluded from the transfer of petroleum services business assets and liabilities to Halliburton’s predecessor. In 1988, NL entered into a series of transactions under a restructuring plan (the “1988 Plan”), through which NL spun off its petroleum services business and transferred it to a separate entity known as Baroid Corporation (“Old Baroid”). In 1990, pursuant to another restructuring plan effective August 31, 1990 (the “1990 Plan”), Old Baroid split the titanium and bentonite business from the “Petroleum Services Business,” defined as petroleum services operations that included “Petroleum Services Assets” and “Petroleum Services Obligations.” Old Baroid retained the titanium and bentonite business, spun off the Petroleum Services Business, and transferred it to a company named New Baroid. Under the 1990 Plan, a subsidiary of Old Baroid ultimately retained the titanium and bentonite business and New Baroid received the Petroleum Services Business. New Baroid is a predecessor of Halliburton. Old Baroid is a predecessor of the Tremont Parties.
The terms “surplus real property” and “Mining property, Malvern, Arkansas” were important in interpreting the 1990 Plan. Exhibit A to the 1990 Plan defined “Assets Which Shall Not Constitute ‘Petroleum Services Assets.’ ” Exhibit A listed “surplus real property and related improvements” as assets excluded
from
the Petroleum Services Assets transferred as part of the Petroleum Services Business to New Baroid. Among those “surplus” real properties was “Mining property, Malvern, Arkansas.” The panel closely examined the 1990 Plan and the surrounding circumstances to determine the parties’ intent in transferring property and liabilities under the 1990 Plan, the ownership of the property transferred, and the indemnification obligations associated with the property. The panel allocated the costs associated with the Site to Halliburton. This court confirmed the arbitration awards in its Confirmation Order.
On July 2, 2008, this court entered final judgment under Federal Rule of Civil Procedure 54(b) on the claims resolved in the arbitration (the “Partial Final Judgment”). (Docket Entry No. 277). Halliburton appealed the Confirmation Order and the Partial Final Judgment. (Docket Entry No. 286). This court entered an order staying the monetary portion of the Partial Final Judgment, conditioned on Halliburton posting a supersedeas bond, and denying Halliburton’s request to stay the nonmonetary portion of the judgment. (Docket Entry No. 291). Halliburton subsequently filed its supersedeas bond. (Docket Entry No. 293). On July 17, 2008, Halliburton filed a motion for new trial or to alter or amend the judgment. (Docket Entry No. 295). This court denied that motion. (Docket Entry No. 303).
On Friday, January 2, 2009, Halliburton filed the instant motion for relief from judgment (the “Rule 60 motion”) and its motion for discovery. (Docket Entry Nos. 341, 342). Oral argument in the Fifth Circuit on Halliburton’s appeal of the Confirmation Order and the Partial Final
*619
Judgment was set for Tuesday, January 6, 2009. (Docket Entry No. 341 at 7). On the day before oral argument, Halliburton filed a motion in the Fifth Circuit to stay the appeal, or in the alternative, to stay issuance of an opinion, and for limited remand to allow this court to consider the Rule 60 motion.
Halliburton Energy Servs., Inc. v. NL Indus. Inc.,
306 Fed. Appx. 843 (5th Cir.2009) (per curiam) (unpublished). The Fifth Circuit denied the motion to stay the appeal and, the day after the argument, affirmed this court’s judgment.
See id.
The Fifth Circuit “expressed] no view on the merits of the [Rule 60 motion],” ceded jurisdiction, and stated that this court “now has whatever jurisdiction it would have had, absent an appeal, to consider post-judgment motions.”
Id.
(citations omitted).
3
In its Rule 60 motion, Halliburton requests relief from judgment under Rule 60(b)(2), (3), (5), and (6). The basis for Halliburton’s motion is its recent discovery of documents
in its own files
that it claims conclusively establish a key issue determined in the arbitration.
(See
Docket Entry No. 341 at 6-7). Halliburton claims that it “has discovered numerous business records created by and/or for the Tremont Parties that specifically establish which portions of the Site were considered to be ‘surplus real property’ that were transferred to the Tremont Parties.”
(Id.
at 7). Halliburton acknowledges that it had these documents in its own files.
(See id.
at 28-30). But Halliburton asserts that these documents
may
have also been in the possession of the Tremont Parties, and that they failed to produce these documents during arbitration.
(Id.
at 7). Halliburton contends that the newly submitted documents “are diametrically opposed to the positions taken by the Tremont Parties in the arbitration” and “conclusive of the Tremont Parties’ ownership of the Malvern property ....”
(Id.).
In its motion for discovery, Halliburton “seek[s] discovery relating to the knowledge of the Tremont Parties as to the existence of the [newly submitted] documents, the decision to withhold the [newly submitted] documents, ... [and] the knowledge and intent of the Tremont Parties in connection with the production or specifically lack of production of the newly discovered documents.” (Docket Entry No. 342 at 1-2).
In response, the Tremont Parties assert that Halliburton is not entitled to relief under Rule 60(b)(2), (3), (5), or (6); that Halliburton’s motions are untimely under both the Federal Arbitration Act (FAA) and Rule 60(c); and that Halliburton has not shown that the result would have been affected even if the newly submitted documents had been presented during the arbitration or confirmation proceedings.
(See generally
Docket Entry No. 350). The Tremont Parties also argue that Halliburton’s motion for discovery should be denied, emphasizing that Halliburton had the newly submitted documents throughout the relevant time.
(Id.
at 47).
II. The Rule 60(b) Standard
Rule 60(b) of the Federal Rules of Civil Procedure provides in relevant part as follows:
On motion and just terms, the court may relieve a party or its legal representa
*620
tive from a final judgment, order, or proceeding for the following reasons:
(2) newly discovered evidence that, with reasonable diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct by an opposing party;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or otherwise vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Crv. P. 60(b). The scope of review under Rule 60(b) is narrower than on a direct appeal.
Aucoin v. K-Mart Apparel Fashion Corp.,
943 F.2d 6, 8 (5th Cir. 1991). Rule 60(b) allows the trial court to “correct obvious errors or injustices.”
Fackelman v. Bell,
564 F.2d 734, 736 (5th Cir.1977). A party moving under Rule 60(b) must show “unusual or unique circumstances.”
Pryor v. U.S. Postal Serv.,
769 F.2d 281, 286 (5th Cir.1985). Relief under Rule 60(b) is an extraordinary remedy; “ ‘the desire for a judicial process that is predictable mandates caution in reopening judgments.’ ”
In re Pettle,
410 F.3d 189, 191 (5th Cir.2005) (quoting
Carter v. Fenner,
136 F.3d 1000, 1007 (5th Cir. 1998)).
III. The Newly Submitted Documents
The newly submitted documents are Exhibits 2-11 to Halliburton’s Rule 60 motion. Halliburton describes the documents as follows:
Exhibit 2 — “Baroid Corporation Surplus Property Analysis dated September 30, 1989, listing Malvern property as ‘surplus property.’ ” (Docket Entry No. 341 at 13).
Exhibit 3 — “Baroid Corporation Memorandum dated October 2, 1990, from Bill Evon to, among others, Janet Smith, Associate General Counsel of NL[,] and Jay Young, Principal Environmental Engineer of NL, with a copy to Robert Hortvet at Valhi [ (a ‘publicly held company that had direct or indirect control over both Tremont and New Baroid until the Baroid/Dresser merger in 1993-94’) ], listing the Malvern property as ‘surplus’ property owned by Baroid Corporation and noting that Baroid was negotiating a sale of that property to the State.”
(Id. &
n. 4 (footnote omitted)).
Exhibit 4 — “Asset listing dated November 8, 1990, for ‘TRE Management Company (formerly Baroid Management Company)’
4
listing the Malvern
*621
property as having a value of $629,699.53. This document also shows a facsimile transmission from Valhi in August 2002, establishing that the Tremont Parties had possession of this document following the implementation of the 1990 Plan.”
(Id.
at 13-14 (footnote omitted)).
Exhibit 5 — “Baroid Corporation Memorandum dated December 6, 1990, from Bill Evon to, among others, NL’s Janet Smith and Jay Young, with a copy to Valhi’s Robert Hortvet, listing the Malvern property as ‘surplus’ property owned by ‘TRE,’ and noting that ‘all surplus properties have been transferred to TRE Management Co.’ ”
(Id.
at 14).
Exhibit 6 — “Baroid Corporation Surplus Property valuation dated December 31, 1990, showing the Malvern property on a list of ‘Tremont Book NOL’ as having a value of $629,700.”
(Id.).
Exhibit 7- — “Baroid Corporation ‘Analysis of Surplus Property’ showing the Malvern property as being ‘surplus property’ transferred to ‘Tremont’ as of December 31,1990.”
(Id.).
Exhibit 8 — “Tremont Corporation ‘Historical Analysis of Surplus Property’ dated January 14, 1991, listing the Malvern property.” (Docket Entry No. 341 at 14).
Exhibit 9 — -“Baroid Corporation Memorandum dated March 4, 1991, from Bill Evon to, among others, NL’s Janet Smith, with a copy to Valhi’s Robert Hortvet, attaching a ‘Surplus Owned Real Property Analysis’ listing the Malvern property as ‘surplus’ property owned by ‘TRE,’ and noting that Baroid was negotiating a sale of that property to the State.”
5
(Id.).
Exhibit 10 — “Baroid Corporation Memorandum dated June 5, 1991, from Bill Evon to NL’s Janet Smith and Jay Young and Tremont’s General Counsel, David Garten, attaching a list ‘of properties owned by Tremont Corporation’ including 193.68 acres of ‘old mine site, raw land’ in Hot Spring[s] County, Arkansas.”
(Id.).
Exhibit 11 — “Baroid Corporation Memorandum dated August 14, 1991, from Bill Evon to, among others, NL’s Janet Smith and Jay Young, Tremont’s David Garten, and TRE Management Company Vice President Susan Alderton, with a copy to Valhi’s Robert Hortvet, attaching ‘TRE Management Co. Surplus Owned Property — Status Report’ listing vacant land
6
in Hot Spring County, Arkansas owned by ‘TRE,’ and noting that Baroid was negotiating a sale of that property to the State.”
(Id.
at 14-15).
The parties dispute the significance of the newly submitted documents; whether the Tremont Parties had the documents in their possession during the arbitration; and whether the Tremont Parties intentionally withheld the documents or en
*622
gaged in other discovery misconduct in the arbitration proceeding. Halliburton primarily argues that the documents provide contemporaneous evidence that the Tremont Parties accepted responsibility for the Site shortly after the 1990 Plan, and that the Malvern property was transferred to the predecessors of the Tremont Parties through the restructurings. Halliburton argues that the documents contradict testimony and other documentary evidence on which the panel relied. Halliburton argues that there is reason to believe that the Tremont Parties had these documents in their possession during the arbitration, noting that key representatives of Tremont/NL had received many of the documents when they were written seventeen years earlier. In response, the Tremont Parties state that they diligently searched for all relevant documents in the arbitration, that they have no reason to believe that they possessed the newly submitted documents at the time of the arbitration and did not withhold them, that the newly submitted documents would not have made any difference in either the arbitration or this court’s confirmation proceedings, and that these documents are cumulative or could only have been used for impeachment.
There is no dispute that Halliburton found the documents at issue in its own files. There is no dispute that Halliburton had these documents in its files while it was preparing for the arbitration, responding to and promulgating discovery for the arbitration, during the arbitration, and during the post-award litigation. The Tremont Parties point out that the newly submitted documents were created by employees of the business that Halliburton now controls and “were at all times in the possession and control of Halliburton.” (Docket Entry No. 350 at 2). The Tremont Parties also argue that Halliburton has not shown that these documents were in the possession and control of the Tremont Parties during any relevant time.
(Id.
at 3). The Tremont Parties assert that the fact that some of the documents were copied to employees of one of the Tremont Parties or their affiliates more than seventeen years ago does not show that the Tremont Parties had the documents during the arbitration.
(Id.).
The Tremont Parties emphasize a July 1997 letter from Dresser Industries, Inc. (“Dresser”) to NL describing the transfer of certain documents from Dresser to NL (the “July 1997 letter”). The Tremont Parties argue that this letter shows that Halliburton entities had the documents at issue and had them for years before, and during, the arbitration:
Halliburton’s argument that the Tremont Parties must now have Exhibits 2-11 is directly contradicted by the very document that Halliburton relies on— the July 9, 1997 letter agreement by which Dresser Industries, Inc. (“Dresser”) returned certain documents to NL. The footnote to this July 9, 1997 letter agreement states that Halliburton was returning to NL certain pre-1988 spinoff documents, and that the posW988 spin-off documents (along with certain pre-1988 spin-off documents) were being retained by the Halliburton side. All of the documents contained within Exhibits 2-11 are posM.988 spin-off documents.
(Id. (footnote omitted)).
The Tremont Parties also argue that “NL retained no documents or employees in connection with the former petroleum services business.” (Id. at 10). The Tremont Parties state that “under the 1990 Restructuring of NL’s former petroleum services business, New Baroid [now Halliburton] was subsequently provided with all of the former NL petroleum services assets and all of the records that related to
*623
the former petroleum services business of NL,” and that “Tremont retained no documents or employees in connection with the former petroleum services business.”
(Id.
at 11). The Tremont Parties point out that New Baroid subsequently merged into Dresser and then into Halliburton, and that “Exhibits 2-11, along with all other petroleum service business documents, subsequently became the property of Halliburton.” (Docket Entry No. 350 at 11). Finally, the Tremont Parties argue that the July 1997 letter establishes that Dresser was retaining posN1988 spin-off records, and that “[t]here is not a scintilla of evidence that any posN1988 spin-off records were delivered back to NL, or any of the other Tremont Parties for that matter.”
(Id.).
The Tremont Parties contend that Halliburton has presented no adequate excuse for failing to find the newly submitted documents earlier, and point out that Halliburton’s stated reason for not finding the July 1997 letter indicating the existence of additional documents is that “ ‘it was kept in a separate file in the desk of a former records employee.’ ”
(Id.
at 14). The Tremont Parties also state that Patricia Suttles, a legal assistant in Halliburton’s legal department, was aware of the July 1997 letter and the documents.
(Id.).
The Tremont Parties submit the affidavit of Paige Savage, a legal assistant for Andrew Nace (Associate General Counsel of NL responsible for the Site), stating that Ms. Suttles emailed a copy of the July 1997 letter to Ms. Savage on January 12, 2007, before the arbitration hearings began.
(Id.; id.,
Ex. I). The Tremont Parties conclude that “Ms. Suttles was well aware of the July 9, 1997 records agreement, and the fact that Halliburton had retained more than 581 boxes of NL petroleum services documents.” (Docket Entry No. 350 at 15). The Tremont Parties also submit the affidavit of Mr. Nace, stating that he spoke with Halliburton representatives well before the arbitration, and that the representatives made clear to him that they were aware of the July 1997 letter and of the fact that Halliburton had retained the petroleum services documents.
(Id.).
The Tremont Parties conclude: “For Halliburton to now contend that it first learned of the July 9, 1997 letter agreement by opening the drawer of a terminated employee, completely disregards the undisputed January 12, 2007 email of Patricia Suttles consciously forwarding the July 9, 1997 letter agreement to the Tremont Parties.”
(Id.).
IV. The Timeliness of Rule 60 Motion
The Tremont Parties contend that Halliburton’s Rule 60 motion is untimely under the FAA and Rule 60(c). The Tremont Parties argue that the Rule 60 motion is really a new motion to vacate the arbitration award under section 10(a) of the FAA. (Docket Entry No. 350 at 42). According to the Tremont Parties, the FAA provides the sole means for challenging misconduct in the administration of the arbitration award. Section 12 of the FAA requires notice of a motion to vacate to be made “ ‘within three months after the award is filed or delivered.’ ”
(Id.
(quoting 9 U.S.C. § 12 )). The final arbitration award was issued on September 10, 2007. “The plain language of § 12 does not provide for any exceptions to the three-month window and says nothing about tolling.”
Olson v. Wexford Clearing Servs. Corp.,
397 F.3d 488, 490 (7th Cir.2005). Halliburton’s motion to vacate was timely filed under the FAA but did not raise any of the issues raised in the Rule 60(b) motion, which was only filed after the motion to vacate was unsuccessful and the awards were confirmed. (Docket Entry No. 350 at 42).
The Tremont Parties also argue that Halliburton’s motion is untimely under
*624
Rule 60(e). A Rule 60(b) motion be made within a reasonable time. Motions under Rule 60(1), (2), and (3) must be made no more than a year after the entry of the judgment, order, or date of the proceeding.
{Id.
at 43). The final arbitration award was entered more than a year before Halliburton’s Rule 60 motion. Although Halliburton moved within one year of the judgment, the Tremont Parties argue that the motion was not filed within a reasonable time because Halliburton had all the newly submitted documents in its possession since 1990 and its outside counsel was aware of them since at least September 2008,
7
but did not move for relief from judgment until 6:30 p.m. on the Friday before a Tuesday oral argument in the Fifth Circuit.
{Id.
at 43).
In
Merit Insurance Co. v. Leatherby Insurance Co.,
714 F.2d 673 (7th Cir.1983), the court emphasized the importance of the short deadlines for challenging arbitration awards. In that case, the arbitration panel entered its award in December 1980, the award was confirmed in Novemberl981, and the first Rule 60(b) motion was rejected a month later.
Id.
at 676-77 . The losing party appealed both the confirmation order and the denial of the Rule 60(b) motion. While the appeal was pending, the losing party filed a second Rule 60(b) motion in May 1982, based on an alleged discovery the previous month that one of the arbitrators had worked under the plaintiffs president and principal stockholder at another insurance company.
Id.
at 677 . The appeal was dismissed and the district court granted the second Rule 60(b) motion in November 1982. The Seventh Circuit reversed the district court’s decision to set aside the judgment confirming the arbitration award. The appellate court found it “significant that the issue of disqualification was raised here by a Rule 60(b) motion to set aside the award, filed some 18 months after the award had been issued by the arbitration panel (though only six months after it was confirmed by the district court).”
Id.
at 682 . The court explained that “[t]he framers of Rule 60(b) set a higher value on the social interest in the finality of litigation,” and that “[a] motion under Rule 60(b) seeks an extraordinary remedy, especially where as in this case the motion is based on the catch-all provision of Rule 60(b), Rule 60(b) (6).”
Id.
(internal citation omitted). In a later opinion in the same case, considering an appeal from the denial of the party’s third Rule 60(b) motion, which renewed the arguments of its first motion,
8
the Seventh Circuit stated:
For Leatherby to take two bites at the apple, by waiting to see how it fared in defending the district court’s grant of its second Rule 60(b) motion before deciding whether to attack the district court’s denial of its first motion, and then, after losing in this court, making that denial the subject of another appeal, is an abuse of orderly appellate procedure.
See, e.g., Raxton Corp. v. Anania Associates, Inc.,
668 F.2d 622, 624 (1st Cir. 1982). We shall tolerate no further delay in winding up this protracted litigation, which has made a mockery of the promise of arbitration to give those who
*625
choose it a swift and effective alternative to judicial dispute resolution.
Merit Ins. Co. v. Leatherby Ins. Co.,
737 F.2d 580, 582 (7th Cir.1984). The decision in
Merit Insurance Co.
supports finding Halliburton’s Rule 60 motion untimely.
In
American Telephone & Telegraph Co. v. United Computer Systems, Inc.,
Nos. 91-56444, 92-55220, 92-56034, 92-55666, 5 F.3d 534 , 1993 WL 360778 (9th Cir. Sept. 15, 1993) (unpublished table decision) (“AT
&
T”), the court considered whether a Rule 60(b)(3) motion could be used to circumvent the FAA’s time limits on a motion to vacate. The AT
& T
court discussed
LaFarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum Corp.,
791 F.2d 1334 (9th Cir.1986). In
LaFarge,
the petition to vacate the award was timely filed and denied. The losing party moved under Rule 60(b)(3) within a year but not within the three-month period set under the FAA. The court in
LaFarge
held that the moving party could “
‘not now collaterally attack the award under the guise of a motion to set aside the judgment confirming the award.’
” AT
& T,
1993 WL 360778 , at *3 (quoting
LaFarge,
791 F.2d at 1339 ) (emphasis added). The AT
& T
court distinguished
LaFarge,
noting that the movant in that case had “failed to identify any fraud, misrepresentation or misconduct in the district court proceedings, but rather
alleged only fraud in the underlying arbitration.
It is for that reason that we barred the movant from attacking the arbitration award ‘under the guise’ of a Rule 60 motion.”
Id.
(citing
LaFarge,
791 F.2d at 1338-39 ) (emphasis added). By contrast, “[a]lthough AT
&
T alleged fraud in the arbitration, it also alleged fraud in the district court proceedings to confirm or vacate the award.”
Id.
“Where, as here, the party seeking relief from judgment alleged fraud in the proceedings to confirm or vacate an arbitration award,
LaFarge
is no obstacle.”
Id.
The court rejected the argument that after the three-month statutory period under the FAA, an arbitration award is unassailable.
Id.
The court summarized:
AT & T filed its original motion to vacate the arbitration award within the time period specified in section 12 and within the analogous time period required under California law. AT & T timely appealed the denial of its motion. When AT & T discovered the alleged fraud, it sought and obtained an order remanding the case to the district court. On remand, the district court considered AT
&
T’s Rule 60 motion. Thus, the proceedings on the Rule 60 motion for relief from judgment were a continuation of the proceedings initiated by AT & T within the statutory period. If the district court did not abuse its discretion in vacating the confirmation order, it properly considered AT & T’s motion to vacate the arbitration award.
Id.
at *4.
The AT
& T
case cuts both ways in analyzing whether Halliburton’s Rule 60 motion is timely. On the one hand, Halliburton appears to be challenging the Tremont Parties’ discovery conduct during the arbitration, not the district court proceedings. Under AT
& T,
this weighs in favor of finding the motion untimely because it was filed long after the final arbitration award issued. On the other hand, if the Rule 60 motion could be characterized as a continuation of the original vacatur proceeding because — unlike the movant in AT
&
T — Halliburton did appeal the denial of its original motion to vacate, that could support finding the motion timely.
The Tremont Parties cite
Mungin v. Florida East Coast Railway Co.,
318 F.Supp. 720, 735 (M.D.Fla.1970),
aff'd,
441 F.2d 728 (5th Cir.1971), for the proposition that “ ‘[w]here a party, through his silence
*626
or inaction, and with knowledge of the facts, or with such knowledge available to him and not used, allows intervening events to occur pursuant to the judgment which radically alter the position of the parties, and no convincing explanation of his delay in raising his objections is forthcoming, the motion under Rule 60(b) is not timely and I so find that this motion comes too late.’ ” (Docket Entry No. 350 at 45). The Tremont Parties argue that Halliburton’s reason for delay — that it recently discovered the July 1997 letter in the drawer of a former employee which led to the search that found the newly submitted documents — “is uprooted by the undisputed email from Patricia Suttles to the exact contrary.”
9
(Id.).
The Tremont Parties also argue that Halliburton has failed to explain why it allowed the appeal to go forward and waited to file its Rule 60(b) motion until just before oral argument, when it admits it knew about the July 1997 letter in September 2008.
(Id.).
“In considering whether a Rule 60(b)(6) motion is timely, a court should scrutinize the particular circumstances of the case and balance the interest in finality with the moving party’s reasons for delay.”
Horphag Research Ltd. v. Henkel Corp.,
No. 00 Civ. 0438(MBM), 2004 WL 117601 , at *3 (S.D.N.Y. Jan. 26, 2004). In
Horphag,
the petitioner filed its Rule 60(b) motion nine months after an order finding that res judicata barred the petitioner’s claim to an offset from an arbitration award, six months after denial of the petitioner’s motion for reconsideration and three months after the arbitrators declined the petitioner’s invitation to issue a statement about whether they had adjudicated the issue.
Id.
The court held that “[b]e-cause Horphag has spent most of the last nine months attempting to obtain relief from the October 23 Order’s res judicata ruling, ... Horphag’s Rule 60(b) motion [was] timely.”
Id.
Taking these authorities together, Halliburton’s motion appears untimely, but the issue is not completely clear. A threshold question is whether the three-month period in section 12 of the FAA applies to the Rule 60(b) motion, or whether the time limits in Rule 60(c) apply. A related question is whether the period begins to run on the date the final arbitration award was issued (September 10, 2007); the date the Confirmation Order was issued (March 31, 2008); or the date the Partial Final Judgment was issued (July 2, 2008). If the three-month period in the FAA applies because the motion is considered to be only an attack on the arbitration awards
*627
and not an attack on the district court proceedings, then the motion is untimely whether the triggering event is the date of the Allocation Award, the date of the Confirmation Order, or the date of the Partial Final Judgment. Even if Halliburton’s motion is characterized as an attack on the district court proceedings, it was not brought within a reasonable time under Rule 60. To the extent Halliburton is moving under Rule 60(b)(2) or (3), the one-year time period has expired if that period runs from the date of the arbitration award.
However, it can be argued that the period should run from the date of the Confirmation Order or the date of the Partial Final Judgment if the motion is characterized as an attack on the district court proceedings. Under either of those scenarios, the motion was made within one year of the judgment. Even then, Halliburton’s motion is likely untimely because the delay was unreasonable. Halliburton’s legal department knew about the July 1997 letter, which showed that Halliburton had additional boxes of potentially relevant documents in its possession, at least two years earlier, even if Halliburton’s outside counsel was unaware of these documents until recently.
The purpose behind the time limits also support finding Halliburton’s filing untimely. “ ‘The purpose of the short periods described in the federal and state arbitration statutes for moving courts to vacate an award is to accord the arbitration award finality in a timely fashion.’ This purpose would be severely undermined if the limitations period prescribed in the FAA. § 12 were tolled every time a losing party filed the functional equivalent of a motion for reconsideration.”
10
Olson,
397 F.3d at 492 (internal citation omitted). But because the answer is unclear, and to provide a complete analysis now in order to avoid the risk of having to do so later, this court examines Halliburton’s motion on the merits. The result of that examination makes it clear that Halliburton cannot prevail on this Rule 60(b) motion. There is no basis for the relief Halliburton seeks.
V. Review of an Arbitration Award Through a Rule 60(b) Motion
The FAA provides four statutory grounds for vacating an award:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent
*628
and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; [and]
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10 (a).
When this court confirmed the arbitration award, the Fifth Circuit used manifest disregard of clearly applicable law as a ground for vacating an arbitration award.
See, e.g., Am. Laser Vision, P.A. v. Laser Vision Inst., L.L.C.,
487 F.3d 255, 259 (5th Cir.2007) (“Vacatur based on an arbitrator’s manifest disregard of the law is a judicially created ground of relief.”) (citing
Prestige Ford v. Ford Dealer Computer Servs., Inc.,
324 F.3d 391, 395-96 (5th Cir. 2003)). In the Confirmation Order, this court pointed out that in
Hall Street Associates, L.L.C. v. Mattel, Inc.,
— U.S. —, 128 S.Ct. 1396 , 170 L.Ed.2d 254 (2008), the Supreme Court reemphasized the narrowness of the grounds for vacatur. (Docket Entry No. 239 at 27). This court explained:
In
Hall Street Assocs., L.L.C. v. Mattel, Inc.,
— U.S. —, 128 S.Ct. 1396, 1399-1400 , 170 L.Ed.2d 254 (2008), the court stated that the statutory bases for vacatur under the Federal Arbitration Act are exclusive. The Court rejected an argument that a statement from
Wilko v. Swan,
346 U.S. 427 , 74 S.Ct. 182 , 98 L.Ed. 168 (1953), that “the interpretations of the law by the arbitrators in contrast to manifest disregard [of the law] are not subject, in the federal courts, to judicial review for error in interpretation,” expanded both judicial grounds for vacatur and contracting parties’ ability to add grounds for vacatur beyond those provided in the FAA.
See Hall Street Assocs.,
128 S.Ct. at 1403-04 . The Court held that the use of the phrase “manifest disregard” in the
Wilko
case was vague.
Id.
The Court stated that it was unclear in
Wilko
whether the “term ‘manifest disregard’ was meant to name a new ground for review,” or whether “it merely referred to the § 10 grounds collectively, rather than adding to them.”
Id.
(citing
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 656 , 105 5.Ct. 3346, 87 L.Ed.2d 444 (1985) (Stevens, J., dissenting)). The Court continued: “Or, as some courts have thought, ‘manifest disregard’ may have been shorthand for § 10(a)(3) or § 10(a)(4), the subsections authorizing vacatur when the arbitrators were ‘guilty of misconduct’ or ‘exceeded their powers.’ ”
Id.
(citing
Kyocera Corp. v. Prudential-Bache Trade Servs., Inc.,
341 F.3d 987 , 997 (9th Cir.2003)). The Court noted that in the past, it had “merely taken the
Wilko
language ... without embellishment,
see First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 942 , 115 S.Ct. 1920 , 131 L.Ed.2d 985 (1995) and now that its meaning is implicated, we see no reason to accord it the significance that Hall Street urges.”
Hall Street
Assocs., 128 S.Ct. at 1403-04 . The
Hall Street Associates
Court emphasized the limited review afforded to arbitration decisions. “Instead of fighting the text [of the FAA], it makes more sense to see the three provisions, §§ 9— 11, as substantiating a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway. Any other reading opens the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,’
Kyocera,
341
*629
F.3d at 998;
cf. Ethyl Corp. v. United Steelworkers of Am.,
768 F.2d 180, 184 (7th Cir.1985), and bring arbitration theory to grief in post-arbitration disputes.”
Id.
at 1405-06.
(Id.
at 27-28).
In the Confirmation Order, this court stated that the “decision in
Hall Street Associates
calls into question whether the manifest disregard standard is a ground for vacatur separate from the statutory grounds for vacatur under the FAA, as the Fifth Circuit has previously stated, or a way of summarizing two or more of those statutory grounds.”
(Id.
at 28). However, this court noted that
Hall Street
was decided in a limited context:
In the context of considering whether private parties may contract for greater review
of an arbitration decision by a district court than is provided for in the FAA, the Court stated that the statutory bases are exclusive grounds for vacatur. The Court declined to extend the “manifest disregard” standard
to permit parties to contract for greater judicial revietv
of arbitration awards than the FAA recognizes.
(Id.
at 28-29 (internal citation omitted) (emphasis added)). Because it was unclear whether
Hall Street
eliminated manifest disregard as a separate ground for vacatur in all circumstances, this court analyzed the arguments for confirmation and vacatur under both the statutory grounds and the previously recognized common-law ground of manifest disregard:
Because the Supreme Court did not expressly decide whether the “manifest disregard” standard remains a separate basis for federal court review of arbitration decisions in at least some circumstances; because the Fifth Circuit has often approved of reviewing arbitration awards for “manifest disregard,”
see, e.g., Am. Laser Vision,
487 F.3d at 259 (5th Cir.2007); and because Halliburton sought vacatur on the basis of the Fifth Circuit’s “manifest disregard” standard, out of an abundance of caution this court analyzes the parties’ arguments using “manifest disregard” as both a summary of some of the statutory grounds and as an additional ground for vacatur.
(Id.
at 30).
Since the Confirmation Order issued, a Fifth Circuit panel has specifically considered whether
Hall Street
eliminated manifest disregard as a separate ground for vacatur in the context of judicial review of an arbitration award.
See Citigroup Global Markets, Inc. v. Bacon,
562 F.3d 349, 350-51 (5th Cir.2009) (“On appeal, we consider whether manifest disregard of the law remains a valid ground for vacatur of an arbitration award in light of the Supreme Court’s decision in
Hall Street
.... ”). The
Citigroup Global Markets
court held:
We conclude that
Hall Street
restricts the grounds for vacatur to those set forth in § 10 of the Federal Arbitration Act (FAA or Act), 9 U.S.C. § 1
et seq.,
and consequently, manifest disregard of the law is no longer an independent ground for vacating arbitration awards under the FAA.
Hall Street
effectively overrules our previous authority to the contrary ....
Id.
The Fifth Circuit concluded that
Hall Street
required it to overrule prior circuit authority holding that manifest disregard was a separate, nonstatutory ground for vacatur.
Id.
at 1407-09 . (“To the extent that our previous precedent holds that nonstatutory grounds may support the vacatur of an arbitration award, it is hereby overruled.”). In so ruling, the Fifth Circuit disagreed with a panel in the Sixth Circuit.
See id.
at 1404-06 (rejecting
Coffee Beanery, Ltd. v. WW, L.L.C.,
300 Fed. Appx 415, 419 (6th Cir.2008), which con
*630
strued
Hall Street
to apply only to contractual expansion of the grounds for review). The Fifth Circuit also noted the Second and Ninth Circuit cases finding that manifest disregard survived
Hall Stree
t—Stolt-
Nielsen SA v. AnimalFeeds Int’l Corp.,
548 F.3d 85, 93-95 (2d Cir.2008), and
Comedy Club Inc. v. Improv West Assocs.,
553 F.3d 1277, 1289 (9th Cir.2009) — did so only by finding that manifest disregard was shorthand for the statutory grounds for vacatur.
See Citigroup Global Markets,
2009 WL 542780, at *6-8 .
The Tremont Parties argue that
Citigroup Global Markets
requires this court to deny Halliburton’s Rule 60 motion.
(See
Docket Entry No. 360 at 1-2). “Halliburton is asking for this Court to look outside the exclusive regimes set forth by the FAA and to incorporate the dictates of Rule 60 of the Federal Rules of Civil Procedure to override the FAA.
Citigroup Global Markets
implicitly states that Halliburton is not entitled to such review.”
(Id.
at 2). Halliburton responds that it is not asking this court “to blend the standards applicable to Rule 60(b) relief with those for granting vacatur of an arbitration award.” (Docket Entry No. 361 at 2). Instead, Halliburton argues that it is asking this court first to act under Rule 60(b) to set aside the Confirmation Order and Partial Final Judgment, and then to grant Halliburton leave to amend its earlier unsuccessful motion to vacate the arbitration awards to add the statutory ground that “the awards were ‘procured by corruption, fraud, or undue means ....’”
(Id.).
Halliburton contends that because it would then be seeking vacatur under one of the statutory grounds, the manifest disregard standard is not implicated.
(Id.).
Halliburton proposes a two-step process. First, Halliburton proposes that “because this Court entered the [Confirmation Order] and the Partial Final Judgment based upon the Confirmation Order, it is beyond question that this Court has discretion to exercise its post-judgment jurisdiction under Fed.R.Civ.P. 60(b) to vacate both the Confirmation Order and the Partial Final Judgment.” (Docket Entry No. 357 at 2-3). Halliburton asserts that “[b]y properly exercising its discretion to set aside the Confirmation Order and the Partial Final Judgment, this Court will return this case to a position in which there are pending arbitration awards that have been neither confirmed nor vacated by the Court.”
(Id.
at 3-4). Halliburton asserts that “[a]s the second step in granting Halliburton’s requested relief, this Court should also grant leave for Halliburton to file an amended motion to vacate the arbitration awards to add the statutory basis for vacatur that the arbitration awards were wrongfully obtained by fraud or undue means.”
(Id.
at 4). Next, Halliburton asserts that this court should, “based upon the appropriate deferential review standard, and based upon the evidence already presented, together with evidence to be gathered during Halliburton’s limited requested discovery, grant the amended motion for vacatur.”
(Id.).
Halliburton contends that “[b]y engaging in this two-step process, this Court will act within its discretion, and, at the same time, apply the proper standard for assessing whether vacatur of the arbitration awards is proper.”
(Id.).
As authority for the first step in this proposed procedure, Halliburton cites to
Baltia Air Lines, Inc. v. Transaction Mgmt., Inc.,
98 F.3d 640, 642 (D.C.Cir. 1996), for the proposition that “Rule 60(b) is an appropriate vehicle by which to challenge a judgment confirming an arbitration award.”
(Id.
at 3). In
Baltia Air Lines,
the party that lost in arbitration and in the confirmation proceeding moved under Rule 60(b) for relief from the judgment confirming the arbitration awards.
*631
98 F.3d at 641-42 . The party alleged that newly discovered evidence showed that the original contract had been fraudulently obtained, that the opposing party’s representatives had perjured themselves during the arbitration, and that the opposing party’s lawyer had made misrepresentations to the district court during the confirmation proceedings.
Id.
at 642 . The district court dismissed the Rule 60(b) motion and the appellate court affirmed, stating that “[a]lthough Rule 60(b) is an appropriate vehicle by which to challenge a judgment confirming an arbitration award,” the motion was untimely under Rules 60(b)(2) and (b)(3); Rule 60(b)(6) could not be used to circumvent the requirements of Rules 60(b)(2) and (b)(3); and while fraud on the court remained a potential avenue for relief, the moving party had not shown fraud.
Id.
As the Tremont Parties point out, under Rule 81(a)(6), the Federal Rules of Civil Procedure apply except to the extent Title 9 of the United States Code provides otherwise.
See
Fed. R. Civ. P. 81(a)(6)(B) (“These rules, to the extent applicable, govern proceedings under the following laws, except as these laws provide other procedures: ... (B) 9 U.S.C., relating to arbitration ....”). The FAA provides “other procedures” for confirming and vacating an award.
See
9 U.S.C. § 9 (“[T]he court
must grant
such an order [confirming the award] unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.”) (emphasis added); 9 U.S.C. § 10 (providing grounds for vacatur); 9 U.S.C. § 11 (providing grounds for modifying or correcting an award). Rule 60(b) cannot be used to circumvent the specific “other procedures” in the FAA. Although
Baltia Air Lines
conclusorily stated that a Rule 60(b) motion may be used to challenge a judgment confirming an arbitration award, the motion in that case was time-barred. The
Baltia Air Lines
court did not face or examine the limits on the use of Rule 60(b) to challenge conduct in an arbitration proceeding rather than in the district court. The offhand comment in
Baltia Air Lines
does not expand or circumvent the specific procedures set out in the FAA to challenge an arbitration award or support Halliburton’s proposed procedure for doing so.
Halliburton also relies on
Haskins v. Brown,
No. 86-4013, 836 F.2d 1347 , 1988 WL 238 (6th Cir. Jan. 4, 1988) (unpublished table decision) (per curiam). Halliburton states that in that case, the appellate court acknowledged a district court’s power under Rule 60(b) to vacate a prior judgment confirming an arbitration award. (Docket Entry No. 357 at 3). As the Tremont Parties point out, the appellate court dismissed the appeal for lack of jurisdiction.
(See
Docket Entry No. 358 at 4). In
Haskins,
after the arbitration award was confirmed, one party sought relief from the judgment under Rule 60(b) because “of an alleged lack of intent to comply with the award on the part of appellant.” 1988 WL 238, at *1 . The district court, without a hearing, “set aside its order enforcing the award, the arbitrators’ decision, and the parties’ stipulation as to the finality of the arbitrators’ decision.”
Id.
The Sixth Circuit stated that “[i]t is well settled that the grant of a new trial is not a final appealable order,” but acknowledged that the Second Circuit had recognized an exception to that rule if the district court lacked jurisdiction to grant a new trial.
Id.
(citation omitted). The Sixth Circuit considered whether, if the Second Circuit’s exception were to apply, the district court had jurisdiction to grant relief under Rule 60(b).
Id.
The court stated: “Rule 60(b) provides a list of those instances where relief may be had from a final judgment by the grant of a new trial. If there is a showing of mistake, inadver
*632
tence, surprise or manifest injustice, then the district court may exercise its jurisdiction to vacate a final award.”
Id.
at *2. The court concluded that because the district court had jurisdiction to vacate the arbitration award and grant a new trial under Rule 60(b) for “manifest injustice,” the appellate court lacked jurisdiction.
Id.
This short, unpublished opinion dismissing the appeal for lack of jurisdiction did not substantively analyze whether Rule 60(b) could be used to circumvent the statutory grounds for vacatur. It merely stated that the district court had jurisdiction to grant a new trial under Rule 60(b). Halliburton’s argument that this opinion shows that Rule 60(b) can be used to overcome a judgment and order confirming a final arbitration award is not persuasive.
In discussing the second step of its proposed procedure, Halliburton acknowledges that it “has been unable to find any case that addresses facts directly in line with those presented in this case.” (Docket Entry No. 357 at 4). Halliburton relies on
Bonar v. Dean Witter Reynolds, Inc.,
835 F.2d 1378 (11th Cir.1988), to argue that a party may “file an amended motion to vacate based upon its discovery of previously undiscovered fraud relating to an arbitration award.”
(Id.).
In
Bonar ,
the Eleventh Circuit considered an appeal from the district court’s denial of a motion to vacate an arbitration award based on allegations that the opposing party’s expert had falsified his credentials in the arbitration. 835 F.2d at 1381 . The loser had already filed a motion to vacate the award under the FAA based on other grounds when it discovered the alleged perjury and moved to amend its motion to vacate or modify the arbitration award to add the ground that the award was procured through fraud.
Id.
The opposing party moved to confirm the arbitration awards and to strike as untimely the amended motion to vacate.
Id.
The district court granted the motion to confirm the award, denied the motion to vacate or modify, and entered final judgment.
Id.
The Eleventh Circuit considered “whether an amended motion to vacate an arbitration award, filed outside of the three month period and raising additional grounds for vacation, is deemed timely if the original motion to vacate was timely.”
Bonar,
835 F.2d at 1381-82 . In finding that the amended motion was timely, the court viewed the original motion to vacate as analogous to the start of a new cause of action.
See id.
at 1382 . The court stated: “[Although technically called a ‘motion,’ the papers filed by a party seeking to confirm or vacate an arbitration award function as the initial pleadings in post-arbitration proceedings in the district court. Consequently, Rule 15, which governs amended and supplemental pleadings in a civil action should also apply to amended motions to vacate arbitration awards.”
Id.
The court found that the opposing party “filed no motion, memorandum, or other paper in the district court that could be construed as a responsive pleading until after ... [the] amended motion to vacate the arbitration award.”
Id.
As a result, the moving party was entitled to amend without leave of court.
Id.
The court also explained that the focus of the original motion to vacate was the conduct and result of the arbitration proceedings, and that the issue raised in the amended motion arose out of the same transaction or occurrence as the original motion to vacate.
See id.
The court concluded that the “amended motion to vacate relates back to the date of its original motion to vacate, and is itself a timely motion.”
Bonar,
835 F.2d at 1382 (footnote omitted).
Halliburton argues that, as in
Bonar ,
it timely moved to vacate the arbitration awards and should be allowed to use this Rule 60 motion to amend its earlier motion
*633
to vacate under Rule 15.
(See
Docket Entry No. 357 at 6). Halliburton acknowledges that unlike the responding party in
Bonar ,
the Tremont Parties did file a response to Halliburton’s original motion to vacate.
(See id.).
Halliburton argues that this only means that it needs leave of court to file the amended motion to vacate and leave should be freely granted “ ‘when justice so requires.’ ”
(See id.
(quoting Fed. R. Civ. P. 15(a)(2))).
The differences between this case and
Bonar
are much more extensive than Halliburton asserts. In
Bonar ,
the amended motion to vacate was filed before any action had been taken on the original motion, either by the opposing party or the court. Here, in sharp contrast, Halliburton’s hypothetical amended motion to vacate would follow the Tremont Parties’ extensive responsive pleadings, this court’s detailed Confirmation Order and Partial Final Judgment, this court’s denial of Halliburton’s motion for new trial, and the Fifth Circuit’s decision affirming the Confirmation Order and Partial Final Judgment. Halliburton’s hypothetical amended motion to vacate can hardly be characterized as simply a motion to file amended pleading, for which leave should be freely granted.
11
In addition,
Bonar'
s analysis shows the futility of allowing Halliburton to file an amended motion to vacate, even if this court could somehow characterize its Rule 60 motion in that fashion and find the amended motion to vacate timely. In
Bonar ,
after finding that the amended motion to vacate was timely, the court emphasized that the alleged fraud on which it was based “must not have been discoverable upon the exercise of due diligence prior to or during the arbitration.”
Bonar,
835 F.2d at 1383 (citations omitted). The moving party in that case showed that “it could not have discovered the perjury before or during the arbitration hearing.”
Id.
at 1384 . In sharp contrast, Halliburton cannot argue that it could not have
*634
discovered the documents at issue or the alleged fraud — the Tremont Parties’ failure to produce those documents — before or during the arbitration hearing. The newly submitted documents were
in Halliburton’s own files
during the relevant period. Even
if
the Tremont Parties also had the newly submitted documents in their files and even
if
the Tremont Parties intentionally withheld them in the arbitration — neither of which Halliburton shows — Halliburton could have discovered the documents (and the Tremont Parties’ failure to produce them) during the arbitration simply by looking in its own files.
The courts have not read
Bonar
as Halliburton does. The Eleventh Circuit, in considering a motion to modify or correct an arbitration award under section 11 of the FAA, has cited
Bonar
for the proposition that arbitration awards cannot be modified based on fraud that could have been discovered earlier. In
AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc.,
the court cited
Bonar
in noting that “judicial review of arbitration decisions is ‘among the narrowest known to the law,’ ” and that “[t]hat narrow review is why a court cannot vacate an arbitration award for fraud based on information available before or during the arbitration that the parties, through lack of diligence, failed to discover.” 508 F.3d 995, 1001 (11th Cir.2007) (citing
Bonar,
835 F.2d at 1383 ) (additional citation omitted). The
AIG Baker Sterling Heights
court held that the district court had erred in modifying the award, lamenting that while “[t]he parties elected to settle their dispute by arbitration rather than litigation,” the appeal was pending “after more than three years of litigation.”
Id.
As further support for its argument that this court should exercise its discretion to grant Halliburton’s Rule 60 motion and then grant it leave to file an amended motion to vacate using the newly submitted documents, Halliburton also cites
Bonar
for the proposition that the fraud standards in Rule 60(b) and the fraud standards for vacatur under the FAA are the same. (Docket Entry No. 357 at 8). In
Bonar ,
the court noted:
The standard for determining whether a party should be relieved of a final judgment under 60(b)(3) is nearly identical to the standard for determining whether an award should be vacated for fraud under § 10(a). This is not surprising considering that both statutes serve the same function of permitting the reopening of an otherwise final judgment upon a demonstration of fraud in the proceedings, and both counteract the strong policy favoring the finality of awards and judgments. Thus, cases arising under Rule 60(b)(3) are persuasive authority in deciding cases under § 10(a).
835 F.2d at 1383 n. 8 (internal citations omitted). This language does not give Halliburton the support it seeks. The language may support an inference that just as cases decided under Rule 60(b)(3) may provide guidance for deciding cases under section 10(a) of the FAA, cases decided under section 10(a) of the FAA may provide guidance for deciding whether to grant a request to overturn a judgment under Rule 60(b)(3) based on alleged fraud. But this language does not provide authority to use a Rule 60(b) motion to circumvent or expand the FAA’s limits on judicial review of an arbitration award.
Halliburton also cites
Bonar
to argue that it should not be penalized for the Tremont Parties’ alleged failure to produce the newly submitted documents. Halliburton relies on the
Bonar
court’s statement, “ ‘[w]e refuse to penalize [the movant] for exercising the thoroughness and caution that appellees themselves did not exercise.’ ” (Docket Entry No. 357 at 7 (quot
*635
ing
Bonar,
835 F.2d at 1382 n. 6)). Halliburton contends that it “should not be penalized for ultimately discovering documents that the Tremont Parties should have known existed, and should have disclosed, during the arbitration process.”
(Id.
(footnote omitted)). The statement in
Bonar
about refusing to penalize the alleged victim of fraud for exercising thoroughness and caution that the other party had failed to exercise does not apply here. Halliburton has not shown that the documents were in the Tremont Parties’ possession at the time of the arbitration or that the Tremont Parties committed misconduct in failing to produce the documents. And Halliburton could have discovered the fraud it alleges by looking in its own files. The
Bonar
court pointed out that although the moving party exercised due diligence, it could not have discovered the fraud during the arbitration.
Bonar,
835 F.2d at 1383 . Halliburton’s discovery of the documents at issue in its own files over a year after the final arbitration award was entered cannot be characterized as the “thoroughness and caution” that the
Bonar
court found the victim of the fraud exercised in that case. In short, Halliburton’s reliance on
Bonar
is unpersuasive on both the facts and the law.
Halliburton asks this court to use Rule 60(b) to overturn its judgment confirming the arbitration awards over a year after the final award was entered, on grounds that were not asserted in the motion to vacate the awards. Halliburton interprets Rule 60(b) as providing authority for a court to overturn arbitration awards not only after they were confirmed and judgment was entered, but after the judgment was affirmed on appeal. Halliburton does not explain why it should be in a better position to overturn the awards after confirmation, judgment, and unsuccessful appeal, than it was in during the confirmation proceeding. And to the extent Halliburton seeks to overturn the Confirmation Order and Partial Final Judgment based on grounds in Rule 60(b) that are not provided for vacatur under the FAA, Halliburton has not shown any justification for using Rule 60(b) to overturn an order and judgment confirming an arbitration award on grounds that could not have been used to vacate the award in the first place.
Halliburton has not attacked the district court proceedings. Halliburton’s focus is on alleged misconduct at the arbitration proceedings. Yet Halliburton asks this court to view the Confirmation Order and Partial Final Judgment as subject to a separate review process from the arbitration awards themselves, compounding the anomalous nature of the approach it proposes. The authority Halliburton relies on to support its proposed procedure is neither on point nor persuasive. Halliburton does not take into account authority that a court cannot use Rule 60(b) to expand the FAA’s grounds for vacatur.
Cf. e.spire Commc’ns, Inc. v. CNS Commc’ns,
39 Fed.Appx. 905, 912 (4th Cir.2002) (“Because the FAA contains exclusive procedures for vacating arbitration awards, Rule 60(b)(1) is inapplicable.”) (footnote omitted) (unpublished) (per curiam);
LaFarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum Corp.,
791 F.2d 1334, 1339 (9th Cir. 1986) (holding that “Kaiser may not now collaterally attack the award under the guise of a motion to set aside the judgment confirming the award,” and noting that “[n]ewly discovered evidence does not justify vacation of an [arbitration] award”) (citation omitted);
Merit Ins. Co. v. Leatherby Ins. Co.,
714 F.2d 673, 680-81 (7th Cir.1983) (“If Leatherby is to get the arbitration award set aside [under Rule 60(b),]
it must bring itself within the statute
[the FAA] and the federal rule [Rule 60(b) ].”) (emphasis added);
Washington-Baltimore
*636
Newspaper Guild, Local 35 v. Washington Post Co.,
442 F.2d 1234, 1239 (D.C.Cir. 1971) (affirming denial of a motion under Rule 60(b)(6) based on “newly available evidence,” and concluding that “neither Rule 60(b) nor any judicially constructed parallel thereto was meant to be applied to final arbitration awards .... ”);
Smith v. Shell Chem. Co.,
333 F.Supp.2d 579, 582-83 (M.D.La.2004) (concluding, in the context of a motion under Rule 60(b)(3) where no final judgment had yet been entered on the arbitration award, that “the relief sought by plaintiff is actually a request to vacate the arbitration award, and such relief is governed by the [FAA]”);
Cong. Sec., Inc. v. Fiserv Sec., Inc.,
No. 02 Civ. 3740(RJH), 2004 WL 829028 , at *2 (S.D.N.Y. Apr. 15, 2004) (“[Neither Rule 60(b) nor any other rule involving ‘newly discovered evidence’ is available to vacate an arbitration award, which is the apparent intent of Petitioners’ motion. Although Rule 60(b) may be used to modify a judgment confirming an arbitration award, ‘[i]t is well-established that Rule 60(b) does not apply’ to the arbitration award itself.”) (quoting
Clarendon Nat’l Ins. Co. v. TIG Reinsurance Co.,
183 F.R.D. 112, 117 (S.D.N.Y.1998)).
This court finds no support for the two-step procedure Halliburton proposes. The limits on reviewing the arbitration awards cannot be so easily avoided.
Halliburton’s approach is further undercut by the lack of any record support for the result it urges. Even if Halliburton’s proposed procedural solution could be used, it would not result in vacating the arbitration awards. As discussed in detail below, even if Rule 60(b) was available here, Halliburton has not met the requirements for relief.
YI. Rule 60(b)(3)
Halliburton primarily seeks relief under Rule 60(b)(3), based on alleged fraud or misconduct committed by the Tremont Parties in withholding documents during the arbitration. “[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.”
Montgomery v. Hall,
592 F.2d 278, 279 (5th Cir.1979). “A party making a Rule 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.”
Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc.,
62 F.3d 767, 772 (5th Cir.1995) (internal quotation marks omitted) (quoting
Washington v. Patlis,
916 F.2d 1036, 1039 (5th Cir.1990), and
Montgomery v. Hall,
592 F.2d 278, 278-79 (5th Cir.1979)). “ ‘The purpose of the rule is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect.’ ”
Id.
(quoting
Diaz v. Methodist Hosp.,
46 F.3d 492, 496 (5th Cir.1995)).
Halliburton contends that the Tremont Parties’ withholding of the newly submitted documents constituted severe discovery misconduct. (Docket Entry No. 341 at 25). Halliburton argues that this discovery misconduct meets the first prong for relief under Rule 60(b)(3).
(Id.).
Halliburton also argues that withholding the documents prevented it from fairly presenting its case because had it known about the documents, it would have presented its case differently.
(Id.)
Halliburton argues that there would have been no need for speculation about the interpretation of the 1990 Deed and Corrective Deed because the documents show that TRE Management Company (Old Baroid) was the intended grantee.
(Id.).
Halliburton asks this court to conclude that if the panel
*637
had known about the newly submitted documents in the arbitration, the Tremont Parties’ witnesses could not have testified that there was no intent to transfer the property to TRE Management; the panel could not have ruled that the 190 Acres was non-surplus; and the panel could not have ruled that the parties intended “all” historical liabilities associated with NL’s Petroleum Services Business to be assumed by Halliburton.
(Id.).
For want of these documents, Halliburton argues, the arbitration was lost. Halliburton overstates.
A. Fraud or Other Misconduct
Halliburton relies on
Rozier v. Ford Motor Co., 573
F.2d 1332, 1339 (5th Cir.1978). In
Rozier ,
the court found that the plaintiff was prevented from fully and fairly presenting her case as a result of the defendant’s failure to produce a document relating to a different car model than the model at issue in the litigation.
Rozier, 573
F.2d at 1345. In
Rozier ,
the party accused of fraud produced an affidavit from its in-house legal counsel stating that he did not know about the document when the company answered relevant interrogatories but he became aware of the document a week before the trial began.
Rozier,
573 F.2d at 1340-41 . The court accepted the statements of trial counsel that they were personally unaware of the withheld document until the motion to vacate was filed almost a year after the trial,
id.
at 1342 n. 10, but that did not change the result, because in-house counsel was aware of the document. The court concluded:
[F]ar from being a cumulative tidbit of evidence already subsumed in the case presented to the jury, [the withheld document] might have been the catalyst for an entirely different approach to the case on a theory that the plaintiff, lacking the document, let die before it reached the jury. Under the circumstances, we hold that Ford’s wrongful withholding of information prevented Mrs. Rozier from fully and fairly presenting her case.
Id.
at 1345 . The court held: “Under the unique facts of this case, the policy of deterring discovery abuses which assault the fairness and integrity of litigation must be accorded precedence over the policy of putting an end to litigation.”
Id.
at 1346 .
The facts in
Rozier
are very different from the facts shown in this record. In
Rozier ,
“defendant Ford was aware of a document in its files relevant to the plaintiffs case, sought by the plaintiff through interrogatories, and included within a discovery order, but [Ford] failed to disclose the document or to amend its response to an interrogatory, falsely stating that it was unable to locate such a document.”
Id.
at 1349 . In contrast, Halliburton has failed to show that the Tremont Parties intentionally and fraudulently withheld the newly submitted documents during the arbitration. In contrast, Halliburton itself had the documents that it argues should have been presented in the arbitration. In contrast, there is no showing that the newly submitted documents would have affected the arbitration.
The Tremont Parties submitted the affidavit of Joan Prusse, who was assistant general counsel for Tremont Corporation from approximately 1997 through 2003. Her responsibilities included the Site. (Docket Entry No. 350, Ex. A).
12
Ms.
*638
Prusse stated in her affidavit that during her involvement with the Site, a thorough search of the records in Tremont Corporation’s possession was conducted and the relevant documents were sent to a document repository maintained by Halliburton.
(Id.,
Ex. A at 2). Ms. Prusse stated that she had never previously seen the newly submitted documents, that she did not intentionally withhold any documents from Halliburton, and that she is unaware of anyone withholding documents from Halliburton.
(Id.,
Ex. A at 2).
The Tremont Parties have also submitted the affidavit of Andrew B. Nace, who currently serves as associate general counsel for NL and whose responsibilities include the Site. (Docket Entry No. 350, Ex. B). Mr. Nace stated that he had not seen the newly submitted documents before Halliburton’s Rule 60 motion. (Docket Entry No. 350, Ex. B at 4). Mr. Nace stated that in addition to the searches by TRE Management Company that produced the documents sent to Halliburton’s document repository while Ms. Prusse oversaw the Site, Mr. Nace directed a search of NL’s records to find all documents required by the Arbitration Agreement.
(Id.,
Ex. B. at 2). Mr. Nace further testified that when he signed letters in the arbitration stating that TRE Management had produced or made available all relevant, nonprivileged records in its possession, he believed them to be true and correct and continues to believe that they are true and correct.
(Id.,
Ex. B at 3). Mr. Nace stated in his affidavit that he spoke to representatives of Halliburton on more than one occasion, including Ms. Suttles, about the July 1997 letter.
(Id.,
Ex. B at 3). Mr. Nace also stated that on January 12, 2007, Ms. Suttles emailed a copy of the July 1997 letter to a paralegal for NL.
(Id.,
Ex. B at 3-4;
see also id.,
Ex. D to Ex. A (affidavit of Paige Savage, paralegal for NL, stating that Ms. Savage received the July 1997 letter in an email from Ms. Suttles on January 12, 2007)). Finally, Mr. Nace stated that he believes that “during the time period of the arbitration^] Halliburton was fully aware of the July 9, 1997 letter and the documents that Halliburton now claims it did not know existed.” (Docket Entry No. 350, Ex. B at 4).
The Tremont Parties also submitted the affidavit of Joan Lewis, a legal assistant at NL, stating that she conducted an additional search for the newly submitted documents in response to Halliburton’s Rule 60 motion. (Docket Entry No. 355, Ex. A). Ms. Lewis stated that she searched the boxes listed in a redacted index attached to Halliburton’s Rule 60 motion describing twenty-eight
13
of the approximately 21,100 boxes in NL’s possession (according to the July 1997 letter), with the exception of one box that the document storage company reported was checked out in 1997 by a Debbie Ross and never returned.
14
(See id.,
Ex. A at 2). Ms. Lewis
*639
stated that she did not find the newly submitted documents in these boxes.
(Id.,
Ex. A at 2).
Halliburton asserts that the argument that it knew about, and had access to, the approximately 21,100 boxes that were returned to NL under the July 1997 letter “misses the point” because “Halliburton has never represented that [the newly submitted documents] are contained in the 21,000 boxes that were returned to NL in 1997.” (Docket Entry No. 359 at 2). Halliburton also admits that at least Ms. Sutiles in Halliburton’s legal department knew about the July 1997 letter but argues that the letter’s only relevance was that it “put Halliburton’s counsel on notice of the existence of thousands of boxes of documents potentially relevant to the Tremont Parties’ new claims.”
(Id.).
Halliburton explains:
However, it was not the 1997 letter, but the “Northbelt Index,” that led to the discovery of Exhibits 2-11. The North-belt Index encompassed 38,378 boxes of documents, significantly more documents than referenced in the 1997 letter. Ms. Martinez discovered Exhibits 2-11 (in boxes containing corporate and tax information) as a result of searching the boxes listed in the Northbelt Index in connection with the new claims. Thus, the Tremont Parties overstate the importance and relevance of the 1997 letter. While the 1997 letter does provide further proof that the Tremont Parties had far more documentation in then-possession than they ever produced or made available in the arbitration, it does not establish any basis for Halliburton’s prior knowledge of Exhibits 2-11.
(Id.
at 2-3).
Halliburton also argues that even after the Tremont Parties’ supplemental filing submitting the affidavit of Ms. Lewis, they “still have not stated that they have searched the full records of NL, Tremont, Yalhi or any other affiliate to ascertain (1) if they still have Exhibits 2-11; (2) if they have destroyed them; or (3) if anyone connected with the Tremont Parties knew of the Exhibits during the Arbitration.”
15
(Id.
at 3). Halliburton argues that “[t]his is critical because Exhibits 2-11 establish that these documents were created by, created for, or sent to persons at Valhi, NL and Tremont,” and that “[i]t is only logical that, given these facts, these records would have been kept by at least one, and probably all of these entities.”
(Id.).
Halliburton’s arguments and the record do not approach a showing that the Tremont Parties engaged in fraud or other misconduct. The Tremont Parties did state, during the arbitration and in this proceeding, that they searched for documents responsive to discovery and believed that they had produced all relevant documents. Since Halliburton filed its Rule 60 motion, the Tremont Parties conducted ad
*640
ditional searches to see if the newly submitted documents were in the Tremont Parties’ files as well as in Halliburton’s files. The Tremont Parties did not find the documents. Halliburton argues that the Tremont Parties have never stated that they searched the files of all affiliates to determine if the newly submitted documents were in their possession. But Halliburton has not submitted anything that contradicts the affidavits submitted by the Tremont Parties showing that they conducted extensive searches in good faith during the arbitration proceeding. Halliburton’s assertion that the documents were originally created for or copied to people affiliated with one or more of the Tremont Parties does not show that the Tremont Parties retained the documents over seventeen years later, particularly given that many documents appear to have changed hands between the Tremont Parties and Halliburton, or their predecessors, in the years following the restructurings.
16
In addition, Halliburton’s allegations of discovery misconduct are not plausible. Halliburton argues that the Tremont Parties intentionally withheld certain documents with the knowledge that Halliburton likely had
those same documents
in its possession.
Cf. State Street Bank & Trust Co. v. Inversiones Errazuriz Limitada,
374 F.3d 158, 176 (2d Cir.2004) (“As the district court aptly explained, ‘[i]t is certainly unique to argue that [a] plaintiff concealed a document from [the] defendants that [the] defendants possessed all along in their own files.’ ”) (quoting
State Street Bank & Trust Co. v. Inversiones Errazuriz, Limitada,
No. 01 Civ. 3201(RLC), 2003 WL 1907955 , at *1 (S.D.N.Y. Apr. 18, 2003)). The fact that Halliburton has not presented any evidence of fraud or misconduct, coupled with the fact that Halliburton’s allegations are not plausible, supports the conclusion that Halliburton has not met the first prong for relief under Rule 60(b)(3).
B. Halliburton’s Opportunity to Fully and Fairly Present Its Case
Halliburton has not shown by clear and convincing evidence that any failure on the part of the Tremont Parties to produce the newly submitted documents prevented Halliburton from fully and fairly presenting its case. Although Halliburton contends that the Tremont Parties should have been aware of the newly submitted documents, it also appears that Halliburton should have been aware of the newly submitted documents. Patricia Suttles, the senior legal assistant at HESI that was responsible for collecting documents for this case, had personal knowledge of the restructurings. In her affidavit, Ms. Suttles explains her involvement with the various companies on both sides of the restructurings:
In 1985 I was employed by NL Industries, Inc. working for one of the subsidiary companies, Sperry-Sun Drilling Services, Inc. I was then transferred to
*641
the law department as manager of litigation services in May of 1988. Following the December 1988 reorganization of NL, I remained with Baroid Corporation as manager, litigation services. Following the Baroid Corporation/Dresser Industries, Inc. merger in January of 1994, I was employed by Dresser Industries, Inc. (“Dresser”) as manager, litigation services. Since the Dresser/Halliburton merger in September of 1998, I have been employed by Halliburton Energy Services, Inc. (“HESI”) as a senior legal assistant.
(Docket Entry No. 341, Ex. 25 at 1). Ms. Suttles had extensive personal experience with and knowledge of the corporate history of Halliburton.
In
Rozier ,
the court emphasized, in connection with considering whether Ford had wrongfully withheld a particular document, that the in-house legal staff at Ford learned of the document before trial, and that this supported a finding of misconduct even though Ford’s trial counsel were unaware of the document at issue.
See Rozier,
573 F.2d at 1340-41 , 1341 n. 10. The
Rozier
court found that the party had knowledge of documents even though its outside trial counsel were not aware of those documents.
The case law has repeatedly emphasized that a party is not prevented from fully and fairly presenting its case if it had access to the information at issue. Halliburton points to
Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253 (5th Cir.2007), in which the defendant failed to produce relevant patent applications that were responsive to a discovery request. The Fifth Circuit found that the district court had erred in holding that the later-found patent applications were not relevant and reversed summary judgment and the denial of postjudgment relief. The patent applications appeared to be, at least initially, in the withholding party’s possession and not in the possession of the plaintiff.
See Triple Tee Golf,
485 F.3d at 260 (noting that the defendants had objected to producing “pending,
unpublished
patent applications,” that the patent applications at issue were published by the Patent Office on January 13, 2005 and June 23, 2005, and that the discovery deadline was June 14, 2005) (emphasis added).
In
Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
364 F.3d 274, 306-07 (5th Cir. 2004), the court refused to vacate an arbitration award based on alleged fraud because the information allegedly withheld was not solely within the opposing party’s control. The court cited
Biotronik Mess-Und Therapiegeraete GmbH & Co. v. Medford Medical Instrument Co.,
415 F.Supp. 133, 137-38 (D.N.J.1976), in which “[t]he court stated that while the party opposing enforcement urged fraud, the real complaint was that the party prevailing in the arbitration should have presented evidence favorable to its opponent’s case.”
Karaha Bodas,
364 F.3d at 307 . The
Karaha Bodas
court noted that the
Biotronik
court had rejected the fraud argument, “stating that ‘a party cannot complain about the nonproduction of evidence when it failed to offer such evidence itself.’ ”
Id.
(quoting
Biotronik,
415 F.Supp. at 138 ). The
Karaha Bodas
court also relied on
Catz American Co. v. Pearl Grange Fruit Exchange Inc.,
292 F.Supp. 549, 553 (S.D.N.Y.1968), in which the court rejected a challenge to the arbitration award based on failure to produce certain witnesses, explaining that “the witnesses were not solely within the prevailing party’s control and there was other evidence in the record supporting the other party’s position .... ”
Karaha Bodas,
364 F.3d at 307 (citing
Catz,
292 F.Supp. at 553 ). The
Karaha Bodas
court concluded that because there was no evi
*642
dence in the record of an intent to mislead the arbitration panel, the failure to produce the insurance policy at issue did not violate public policy and, the district court did not err in refusing to deny enforcement of the award or in refusing to grant a new trial under Rule 60(b).
Id.
Similarly, in
Atkinson v. Prudential Property Co.,
43 F.3d 367 (8th Cir.1994), the court refused to grant relief under Rule 60(b)(3) on the basis of a failure to produce a document because the movant had access to that document. The court found that “[w]hile failure to produce evidence requested in discovery may under some circumstances be grounds for vacating judgment, Atkinson has submitted no evidence that the failure to do so in this case was due to misconduct on the part of defendants.”
Id.
at 373 (internal citation omitted). The court also found that the movant was not prevented from fully and fairly litigating his claim:
This is not a case in which defendants withheld information that they alone possessed. A copy of the letter was in Atkinson’s possession the entire time,
having been addressed to him and a copy of it having been lodged in his own files.
He had had a fair opportunity to discover it simply by going through his own files.
As already pointed out, moreover, production of the letter would have made absolutely no difference in the result.
Id.
(emphasis added).
The Eleventh Circuit reached a similar result in
Taylor v. Texgas Corp.,
831 F.2d 255, 260 (11th Cir.1987). In that case, the court pointed out that if the moving party had knowledge of the relevant facts, that party could not argue that it was prevented from fully and fairly presenting its case.
See id.
(“[Gjiven the fact that Texgas itself knew that it had been making pension payments to Taylor, even if its counsel were not aware of that fact, Texgas cannot show that Taylor’s failure to mention the pension payments prevented Texgas ‘from fully and fairly presenting its case.’ ”).
In
American Telephone & Telegraph Co. v. United Computer Systems, Inc.,
the court noted that in proving entitlement to relief under Rule 60(b)(3), the movant must show that the fraud was not discoverable by due diligence before or during the proceedings, and that the fraud was materially related to the submitted issue. 5 F.3d 534 , 1993 WL 360778 , at *4 (9th Cir. Sept. 15, 1993) (unpublished table decision) (quoting
Pacific & Arctic Ry. & Navigation Co. v. United Transp. Union,
952 F.2d 1144, 1148 (9th Cir.1991)). The court noted:
Most, if not all, of the information used by AT & T to discover the changes in corporate identity was available to AT & T prior to or during the proceedings to confirm the arbitration award. AT & T launched an appropriate investigation only after: (1) a multimillion dollar award was rendered against it; (2) the award was confirmed; and (3) AT & T was confronted with the prospect of a second arbitration proceeding.
Id.
at *5. The court concluded that the district court had abused its discretion in granting the Rule 60(b)(3) relief from its prior judgment confirming the award. Because the confirmation order was not obtained by fraud, the district court erred in vacating the underlying arbitration award.
Id.
at *6.
No matter how much Halliburton protests that it did not have actual notice of the newly submitted documents during the arbitration, the fact remains that Halliburton found the documents in its own files. The cases make clear that this prevents a finding that Halliburton was precluded from fully and fairly presenting its case.
See, e.g., State Street Bank & Trust Co.,
*643
374 F.3d at 176 (“Where a movant admits that a letter that the other party supposedly concealed was already present in the movant’s files, it ‘cannot claim that it was prevented from fully presenting its case.’ ”) (quoting
Progressive Cas. Ins. Co. v. Liberty Mutual Ins. Co.,
1996 WL 524339 , at *2 (S.D.N.Y. Sept. 13, 1996));
Diaz v. Methodist Hosp.,
46 F.3d 492, 497 (5th Cir.1995) (holding that there was no error in denying a Rule 60(b)(3) motion because the plaintiff had independent access to the information at issue, the information was not under the exclusive control of the opposing party, and it was “likely that a more focused effort by Appellant could have uncovered this evidence prior to trial”). Halliburton has not shown entitlement to relief under Rule 60(b)(3).
VII. Rule 60(b)(2)
“To succeed on a motion for relief from judgment based on newly discovered evidence, our law provides that a movant must demonstrate: (1) that it exercised due diligence in obtaining the information; and (2) that the evidence is material and controlling and clearly would have produced a different result if present before the original judgment.”
Hesling v. CSX Transp., Inc.,
396 F.3d 632 , 639 (5th Cir.2005) (quoting
Goldstein v. MCI WorldCom,
340 F.3d 238, 257 (5th Cir. 2003) (citation omitted)). “A judgment will not be reopened if the evidence is merely cumulative or impeaching and would not have changed the result.”
Id.
(citing
Trans Miss. Corp. v. United States,
494 F.2d 770, 773 (5th Cir.1974)).
A. Due Diligence
Halliburton argues that it was duly diligent in its search for documents and produced over 1,100,000 pages during the arbitration. (Docket Entry No. 341 at 26). Halliburton cites no cases supporting a finding of due diligence when the documents not produced were located in the moving party’s own files. Halliburton instead argues that it is entitled to relief even in the absence of due diligence because the documents are “conclusive.”
(Id.
at 27). Halliburton contends that an exception to the diligence requirement exists to prevent a miscarriage of justice.
(Id.
at 26 (citing
Ferrell v. Trailmobile, Inc.,
223 F.2d 697, 698 (5th Cir.1955))).
In
Ferrell ,
the court stated:
If, in fact, practically conclusive evidence shows that the appellant had actually paid all eighteen installments for the purchase of the trailer, it is obvious that the judgment should be set aside to prevent a manifest miscarriage of justice. In such a case, the ends of justice may require granting a new trial even though proper diligence was not used to secure such evidence for use at trial.
223 F.2d at 698 . The motion under Rule 60(b) was made “on the ground that the judgment had been paid.”
Id.
at 699 .
In
Central States, Southeast and Southwest Areas Pension Fund v. Central Cartage Co.,
69 F.3d 1312 (7th Cir.1995), the court explained that
Ferrell
did not create an exception to the requirement of exercising due diligence under Rule 60(b)(2):
Central Cartage asks us to disregard the limitations of Rule 60(b)(2). It tells us that
Ferrell v. Trailmobile, Inc.,
223 F.2d 697 (5th Cir.1955), made an exception to Rule 60(b)(2) for “conclusive” evidence, an understanding of
Ferrell
that also appears in
United States v. McGaughey,
977 F.2d 1067, 1075-76 (7th Cir.1992). But
Ferrell
itself does not say this — at least not explicitly. The question on the table was whether a judgment of foreclosure should be vacated because the underlying debt had been paid; the court explained that
conclusive evidence of the debt’s payment
*644
would defeat foreclosure.
Modification of judgments to take account of developments such as payment is the domain of Rule 60(b)(5), not Rule 60(b)(2).
Ferrell
did not refer to any particular subsection of Rule 60(b). Although it did rely on equitable considerations, that approach is expressly authorized by Rule 60(b)(5). One of its clauses presents the question whether it is “equitable that the judgment should have prospective application”. Cases in the fifth circuit since
Ferrell
have declined to extend its approach to Rule 60(b)(2) and have held that a litigant relying on new evidence as a reason to alter a judgment must demonstrate that the evidence could not have been obtained, in time, by diligent preparation.
See Johnson Waste Materials v. Marshall,
611 F.2d 593 (5th Cir.1980).
Cent. States,
69 F.3d at 1314 (emphasis added);
see also Lightfoot v. Dist. of Columbia,
555 F.Supp.2d 61, 69 (D.D.C.2008) (“The Fifth Circuit subsequently held that its holding in Ferrell applies to Rule 60(b)(5) and not subsection (b)(2), which expressly requires due diligence.”) (citing
Johnson Waste,
611 F.2d at 599 ). The
Central States
court decided to follow the Fifth Circuit’s holding in Johnson Waste, “in insisting that Rule 60(b)(2) be applied according to its text,”
Cent. States,
69 F.3d at 1314 , and held that “there is no exception to Rule 60(b)(2) for ‘conclusive’ evidence,”
id.
at 1315 .
See also Lans v. Gateway 2000, Inc.,
110 F.Supp.2d 1 , 8 n. 12 (D.D.C.2000) (“ ‘[T]he authority for an exception to the requirements of Rule 60(b)(2) when the newly-discovered evidence is “conclusive” is shaky at best. The most sensible approach is to ignore
Ferrell
to the extent that it implies an exception to the due diligence requirement of Rule 60(b)(2). To the extent that
Ferrell
meant to create such an exception, it is wrongly decided.’ ”) (quoting 12 James W. Moore et al., Moore’s Federal Practice ¶ 60.42[10] (3d ed.1999)).
As the
Central States
case points out, the Fifth Circuit limited the
Ferrell
holding in its subsequent decision in
Johnson Waste Materials v. Marshall,
611 F.2d 593 (5th Cir.1980). In
Johnson Waste,
the district court cautioned the defendants that “ ‘it is not the function of an independent action to relitigate actions finally determined in another action between the same parties, especially so when that initial action has been determined worthy of affirmance by a Court of Appeals ....’” 611 F.2d at 596 n. 6. The district court denied relief, noting that denying the motion for summary judgment “would not only be a violation of the newly discovered evidence rule, but might well encourage litigants to withhold pertinent documents in one trial and when later ruled against, seek to reopen it at a later date by then producing the evidence, thus presenting each alternative defense in a separate action.”
Id.
at 597 . The Fifth Circuit noted that it had previously characterized a motion under Rule 60(b)(2) as “ ‘an extraordinary motion’ and [had] demanded that the requirements of the rule ... be strictly met.”
Id.
The court found that the defendant failed to exercise due diligence to secure the evidence at the time of trial, stating: “Given Fernandez’ testimony that he ‘just couldn’t find’ the cancelled checks at the time of trial because he ‘just had misplaced them at home’ and other statements to that effect, we agree with the lower court that the evidence was not ‘newly discovered’ but merely ‘newly produced.’ ”
Id.
at 598 . The court held that the due diligence requirement of Rule 60(b)(2) had not been met, stating that “the gist of [the defendant’s] testimony was that he knew he had the records but had simply misplaced them. That he ‘didn’t quite look good enough’ because of
*645
‘rumors that some girl had taken some papers’ does not in our view excuse his failure to exercise due diligence.”
Id.
at 599 .
The
Johnson Waste
court found that relief was appropriate under Rule 60(b)(5), however, because that section does not require that the evidence be “newly discovered” or that the movant have exercised due diligence to discover it.
Johnson Waste,
611 F.2d at 599 . The court concluded that it would not read such requirements into Rule 60(b)(5) when the motion was based on prior payment of a judgment debt.
Id.
The court explained:
There is much less reason to require due diligence when a party has conclusive evidence that he has paid a portion of the judgment than when a party presents “newly discovered evidence.” In the former instance, the judgment beneficiary in fact receives everything to which he is entitled; he is simply denied recovery of a windfall. On the other hand, where a court grants a new trial based on “newly discovered evidence” (other than evidence of payment), the judgment beneficiary will almost certainly be deprived of the judgment in his favor.
Id.
In
Johnson Waste,
there was “no doubt that the records produced by defendants ... constitute^] ‘practically conclusive evidence’ of payment of over half of the amount that the trial court determined the employees were owed.”
Id.
The court concluded that “[t]he equitable considerations underlying
Ferrell
would thus seem to be applicable here.”
Id.
at 599-600.
Halliburton’s reliance on
Ferrell
to argue that there is no requirement of showing due diligence to obtain relief under Rule 60(b)(2) fails. Subsequent case law has made it clear that
Ferrell
did not create an exception to the requirement of showing due diligence under Rule 60(b)(2).
17
Even if
Ferrell
could apply, the newly submitted documents are not the same type of “conclusive” evidence present in
Ferrell .
In
Ferrell ,
there was proof of payment of a judgment, and the court found that allowing a judgment to stand that was contrary to such evidence would create a windfall for the opposing party. Here, in contrast, the newly submitted documents are not evidence that Halliburton has satisfied its liability under the earlier judgment. The newly submitted documents are not “conclusive” in the sense used in
Ferrell .
*646
Because there is no exception to the requirement of due diligence under Rule 60(b)(2) for “conclusive” evidence, and because Halliburton has not shown that the newly submitted documents are “conclusive,” Halliburton must show that it exercised due diligence in order to obtain relief under Rule 60(b)(2). The case law indicates that a party cannot show due diligence if the newly discovered evidence was available to that party during the proceeding. In
Farm Credit Bank of Texas v. Guidry,
the court considered a motion for new trial under Rule 59 based on allegedly newly discovered evidence.
Guidry,
110 F.3d 1147, 1154-55 (5th Cir.1997),
overruled on other grounds by In re Orso,
283 F.3d 686, 696-97 (5th Cir.2002). The court held that “facts known to a party before trial, even though they were not disclosed to his attorney until after trial, need not be regarded as ‘newly discovered’ facts for purposes of Rule 59,”
id.
at 1154, and noted that a court is not required “to order a new trial on the ground of newly discovered evidence in order to enable appellant to set forth facts within his own knowledge at the time of the trial, even though their existence may not have been known to his attorney then, and their significance was not known to himself,”
id.
at 1154 n. 28 (quoting
Roach v. Stastny,
104 F.2d 559, 562 (7th Cir.1939)). The court held: “[W]e conclude that any loss by Guidry resulting from the professional deficiency in her attorney’s failure to question her adequately when preparing her case for trial is a matter to be remedied between the two of them, not by putting FCBT and the district court through another trial.”
Id.
at 1155.
Similarly, in
Atkinson v. Prudential Property Co.,
43 F.3d 367 (8th Cir.1994), the court denied relief under Rule 60(b)(2) because there was no reason to think that the new evidence would have made a difference in result, but noted with respect to the requirement that the evidence be “newly discovered,” that:
[I]t is highly unlikely that Atkinson has shown that the evidence is “newly discovered” within the meaning of FED. R. CIV. P. 60(b)(2).
Atkinson was in possession of the letter the entire time. Where a party had possession of the evidence the entire time, the party’s later “discovery” of the evidence is generally not sufficient to support a motion under Rule 60(b)(2). See, e.g., Kansas City Area Transp. Auth. v. Missouri,
640 F.2d 173, 175 (8th Cir.1981);
Taylor v. Texgas Corp.,
831 F.2d 255, 259 (11th Cir.1987) (holding that “evidence cannot be ‘newly discovered’ under Rule 60 if it is in the possession of the moving party or that party’s attorney prior to the entry of judgment”). Atkinson had the letter, bore the burden of proof, failed to produce the letter at trial, and should not be excused for his own careless filing system. Moreover, Atkinson has not shown that he could not have discovered the letter through the exercise of due diligence.
Id.
at 371 n. 3 (emphasis added);
see also Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc.,
62 F.3d 767, 772 (5th Cir. 1995) (“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.”);
18
Jordan v. Am.
*647
Suzuki Motor Corp.,
No. 2:07cv66-KS-MTP, 2007 WL 3231651 , at *4 n. 1 (S.D.Miss. Oct. 30, 2007) (“Certainly the bare minimum of diligence necessary under Rule 60(b)(2) requires a party to be familiar with documents that are in its own possession.”);
id.
at *4 (“A careful reading of their own documents would have revealed the existence of the document that the Jordans’ counsel now claims is indispensable.”);
Smith v. Hall-Houston Oil Co.,
No. Civ. A. 98-3433, 2000 WL 1182438 , at *5 (E.D.La. Aug. 18, 2000) (“For the evidence to be considered ‘newly discovered,’ ‘the evidence must have been in existence at the time of the trial, but if it was in the possession of the party before the judgment was rendered[,] it is not newly discovered and does not entitle the party to relief.’ ”) (quoting 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2859 (2d ed.1995));
accord State Street Bank & Trust Co. v. Inversiones Errazuriz Limitada,
374 F.3d 158, 178 (2d Cir. 2004) (affirming denial of a motion characterized under Rule 60(b)(2) because the defendants offered no explanation for their failure to discover the new document in their own files);
Alred (Gray) v. Fed. Express Corp.,
112 Fed.Appx. 420, 422 (6th Cir.2004) (unpublished) (affirming denial of a Rule 60(b)(2) motion because the movant “both presumes that defendant was in possession of the documents and ignores her own possession of these documents”).
Halliburton must show that it exercised due diligence in searching for documents but failed to find the newly submitted documents that were in its own files during the arbitration. The case law makes it clear that Halliburton cannot make this showing.
19
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B. The Materiality of the Newly Submitted Documents
Even if Halliburton could show that it exercised due diligence in searching for documents but nonetheless failed to locate the newly submitted documents, it is not entitled to relief under Rule 60(b)(2) because it has not shown that these documents would have changed the arbitration or confirmation proceedings.
20
Halliburton has failed to show that the newly submitted documents are material, not cumulative or impeaching, and would have caused a different result at the arbitration. In the Contract Award, the panel noted that the arbitration had “presented more inconsistencies and contradictions than any other matter in the collective experience of the panel members.” (Docket Entry No. 341, Ex. 1 at 1). The panel explained:
As detailed in exhibits and hearing testimony, both the Claimants (“Tremont Parties”) and the Respondents (“Halliburton Parties”) presented voluminous evidence which indicated that
both parties made specific representations to governmental agencies indicating ovmership of portions of the mining property in Malvern, Arkansas.
Surprisingly, many of these inconsistencies continued for many years in the form of SEC filings (e.g., Tremont Corporation), and transfers of property as recently as 2003 (e.g., Halliburton).
(Id.,
Ex. 1 at 1 (emphasis added)). The panel noted that “[t]here was unquestionably uncertainty as to the meaning of the term ‘Mining Property, Malvern, Arkansas,’ as reflected by the testimony of the principal architects of the [1990] Plan,”
(id.,
Ex. 1 at 4), and that there was conflicting testimony regarding the meaning of the term “surplus,”
(id.,
Ex. 1 at 6). The panel attached an appendix to the Contract Award listing the exhibits, admissions, and actions that were inconsistent with the positions taken by the Tremont Parties,
(see id.,
Ex. 1 app. A), as well as an appendix listing the exhibits, admissions, and actions that were inconsistent with the positions taken by Halliburton,
(see id.,
Ex. 1 app. B). While the newly submitted documents are relevant in the sense that they were created at or around the time of the 1990 Plan, the period to which the panel looked to determine the intent of the parties with respect to the meaning of “Mining property, Malvern, Arkansas,” and “surplus real property,” Halliburton has not shown that these documents would have done anything more than add to the list of conflicting evidence the panel examined. To the extent that the newly submitted documents show any of the Tremont Parties taking responsibility for property in Malvern, the panel had other evidence show
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ing the same thing. The panel also had numerous conflicting documents in which Halliburton indicated that it owned or had responsibility for the property.
The panel had, and considered, other evidence that was at least as harmful to the Tremont Parties’ position in the arbitration as the newly submitted documents. This other evidence included maps contained in submissions to the Arkansas Department of Environmental Quality (“ADEQ”), which TRE Management signed off on as late as 2003, that allegedly showed that TRE Management owned the mine pit on the Site.
(See
Docket Entry No. 350, Ex. C (Halliburton Arbitration Exhibit R137)). In view of the enormous amount of conflicting evidence the panel considered in determining ownership, it is far from clear that the newly submitted documents would have caused the panel to reach a different result with respect to ownership of the Site.
Even if the newly submitted documents could have affected the result in the Contract Award with respect to ownership, the Allocation Award makes clear that the arbitration panel allocated responsibility for the response costs by looking at the indemnity obligations under the relevant agreements. The panel’s allocation with respect to one of the disputed parcels of land, the “100 Acres,” demonstrates the importance of the indemnity obligations. In the Contract Phase, the panel had determined that “the 100 Acres was ‘surplus real property’ included within the ‘mining property, Malvern, Arkansas,’ on Exhibit A to the [1990] Plan, and thus excluded from the transfer to New Baroid [ (Halliburton) ].” (Docket Entry No. 350, Ex. K at 28). The panel unequivocally stated: “Concerning ownership of the 100 Acres, however, the evidence was clear that title is vested in HESI.”
(Id.,
Ex. K at 28). In the Allocation Award, the panel indicated the because it had concluded in the Contract Phase that the 100 Acres constituted “surplus real property,” which the parties intended to pass to the Tremont Parties under the 1990 Plan, the panel had concluded that the liabilities associated with the 100 Acres were subject to Old Baroid’s (the Tremont Parties’) indemnification obligations under the 1990 Plan.
(Id.,
Ex. K at 28). The panel noted that “as the successor to Old Baroid, Tremont is obligated to indemnify New Baroid (HESI) for all ‘Obligations, ... arising out of, or which are otherwise attributable to ... [Old Baroid’s] past, present or future operations, other than those Obligations Which Constitute Petroleum Services Obligations,....”
(Id.,
Ex. K. at 28). The panel explained that the 1990 Plan “contemplated the separation of NL’s Petroleum Services Business, on the one hand, and NL’s Titanium and Bentonite Business, on the other, into two publicly-traded companies,” and that “[t]he obvious import of the respective indemnity obligations of both Old Baroid and New Baroid under the 1990 Plan was to allocate all liabilities and obligations associated with the respective businesses to the parties acquiring that business.”
(Id.,
Ex. K at 28). The panel concluded that “Old Baroid was obligated to indemnify New Baroid with regard to all such liabilities and obligations related to the Titanium and Bentonite Businesses, and likewise New Baroid was obligated to indemnify Old Baroid with respect to all liabilities and obligations attributable to the Petroleum Services Business.”
(Id.,
Ex. K. at 28). Despite its holding that the 100 Acres was clearly owned by HESI, the panel concluded that “all environmental liability associated with the 100 Acres results from past mining and milling operations of NL, which unquestionably constituted petroleum services operations transferred from New Baroid and ultimately assumed by
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HESI.” (Docket Entry No. 350, Ex. K at 29). The panel stated that it was
satisfied that the 100 Acres constitutes one of the “sites or facilities or ... operations attributable to the Petroleum Services Business,” and that liability at issue in this arbitration with respect to the Site derives from “claims arising out of or relating to the deposit, placement or disposal of any material of any character whatsoever generated at such sites or by such operations,” thereby subject to the indemnification obligations owed by HESI to the Tremont Parties under paragraph 12.(i). of the Plan.
(Id.,
Ex. K at 29-30).
As the panel’s allocation determination with respect to the 100 Acres shows, allocation of responsibility for response costs was not based only on ownership of the property in question. To the extent the newly submitted documents show that the Tremont Parties claimed ownership of the property around the time of the 1990 Plan, and even if the newly submitted documents might have influenced the arbitrators with respect to determining ownership of the Site, the arbitrators’ allocation determination was based on the parties’ indemnification obligations and on whether the obligations associated with the Site constituted part of the Petroleum Services Business, not on ownership.
In sum, Halliburton has not met its burden under Rule 60(b)(2). Halliburton’s proposed exception to the requirement of showing of due diligence does not comport with the case law and in any event would not apply under the facts here. Halliburton has not shown that it exercised due diligence, given that the newly submitted documents existed in its own files. Halliburton also has not shown that the newly submitted documents are material, not merely cumulative or impeaching, or would have changed the result in the arbitration or confirmation proceedings.
VIII. Rule 60(b)(5)
Rule 60(b)(5) permits the court to relieve a party from a judgment if it “has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). The first two grounds for relief in Rule 60(b)(5) do not apply here. Halliburton appears to request relief under the last ground. The requirements for relief under that provision of Rule 60(b)(5) are that “(1) the judgment has prospective application and (2) it is no longer equitable that it should so operate.”
Kirksey v. City of Jackson,
714 F.2d 42, 43 (5th Cir.1983) (citing 11 Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice
&
Procedure § 2863 (1973)). “Injunctions, orders of disbarment, and declaratory judgments have all been held to have prospective effect. The impact of such judgments is obviously continuing.”
Id.
(internal citation omitted). “Rule 60(b)(5) on its face does not require that the evidence supporting the motion be ‘newly discovered’ or that the movant have exercised ‘due diligence’ to secure it.”
Johnson Waste,
611 F.2d at 599 . “In reviewing a request for relief under Rule 60(b)(5), ‘We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree.’ ”
Western Water Mgmt., Inc. v. Brown,
40 F.3d 105, 108 (5th Cir.1994) (quoting
United States v. Swift & Co.,
286 U.S. 106 , 52 S.Ct. 460 , 76 L.Ed. 999 (1932)).
As an initial matter, this court notes that it is anomalous to apply Rule 60(b)(5) to allow relief from judgment based on newly discovered evidence when
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the moving party has not met the requirements for relief under Rule 60(b)(2), the section that directly addresses newly discovered evidence.
Cf. Wilson-Simmons v. Lake County Sheriff’s Dept.,
42 Fed.Appx. 754, 757 (6th Cir.2002) (unpublished) (“This attempt to skirt the time limit of Rule 60(b)(2) was in error as Rule 60(b)(5) deals with changed circumstances, not newly discovered evidence.”) (citation omitted). In any event, Halliburton has not shown entitlement to relief under Rule 60(b)(5), even considering the newly submitted documents.
The request for relief under Rule 60(b)(5) could only be granted for that part of the arbitration award that could be construed as “prospective relief’ if that relief is no longer equitable. Halliburton has not shown changed facts or law that make application of the prospective relief in the Allocation Award inequitable. The “new” fact is that Halliburton has discovered documents in its own files that it believes would have been relevant to the arbitration. Halliburton has not cited, and this court has not found, cases permitting relief under Rule 60(b)(5) under such circumstances. The
Johnson Waste
court permitted relief under Rule 60(b)(5) on the basis of documents in the moving party’s possession, but in that case, the documents were conclusive evidence of payment, and reformation of the judgment was necessary to avoid a windfall to the opposing party.
See Johnson Waste,
611 F.2d at 600-01 (“Reducing the judgment here by the amount that defendants have already paid will not deprive the employees of the wages that they properly earned. When defendants pay the remainder of the judgment, the employees will have received the full amount to which the trial court determined they were entitled. They will only be denied a windfall recovery.”) (footnote omitted).
In the context of a consent decree, the Supreme Court has explained that the standard for modification on equitable grounds is not a lenient one:
“Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is
whether the changes are so important that dangers, once substantial, have become attenuated to a shadow.
No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression.
Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions
should lead us to change what was decreed after years of litigation with the consent of all concerned.”
11 Charles A. Wright, Arthur R. Miller
&
Mary Kay Kane, Federal Practice & Procedure § 2863 (2d ed.1995) (quoting
United States v. Swift,
286 U.S. 106, 119 , 52 S.Ct. 460 , 76 L.Ed. 999 (1932)) (emphasis added). “Because the standard is an exacting one, many applications for relief on this ground [Rule 60(b)(5) ] are denied.”
Id.
(footnote omitted). The examples of when courts have found relief appropriate under Rule 60(b)(5) are limited: “subsequent legislation, a change in the decisional law, or a change in the operative facts.”
Id.
(footnotes omitted).
Halliburton had the newly submitted documents in its own possession during the arbitration and confirmation proceedings. Halliburton has not shown the kind of changed circumstance warranting relief under Rule 60(b)(5). And, as discussed in the Rule 60(b)(2) analysis, it is far from clear that the newly submitted documents would have affected the arbitration or the confirmation proceedings. The fact that the arbitration panel did not consider the
*652
newly submitted documents does not make prospective application of the arbitration awards unjust.
A court considering relief under Rule 60(b) weighs the fairness of enforcing the judgment against the interest in finality of judgments,
see Hesling,
396 F.3d at 638. Given that Halliburton had these documents in its own files and that the documents do not conclusively resolve the issues considered in the arbitration or confirmation proceedings, the equities favor maintaining the finality of the arbitration awards and the order and judgment confirming those awards.
IX. Rule 60(b)(6)
Halliburton also requests relief under Rule 60(b)(6), which allows overturning a judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). As the Fifth Circuit explained in
Hesling v. CSX Trannsp., Inc.,
396 F.3d 632 (5th Cir. 2005):
“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.’ ‘The broad language of clause (6) gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice.’ ”
Harrell v. DCS Equip. Leasing Corp.,
951 F.2d 1453 , 1458 (5th Cir.1992) (citations omitted). However, “[rjelief under this section is granted ‘only if extraordinary circumstances are present.’ ”
American Totalisator Co., Inc. v. Fair Grounds Corp.,
3 F.3d 810, 815 (5th Cir.1993) (citation omitted).
Id.
at 642 (footnote omitted). The Fifth Circuit has “consistently held that relief under 60(b)(6) is mutually exclusive from relief under sections (l)-(5),” and that “[t]he reason for relief set forth under 60(b)(6) cannot be the reason for relief sought under another subsection of 60(b).”
Id.
at 643 (citations omitted). Halliburton argues that relief is available under Rule 60(b)(2), (3), or (5), but seeks relief under Rule 60(b)(6) in the alternative. (Docket Entry No. 341 at 13). This court has determined that relief is not available under subsections (2), (3), or (5). Halliburton’s motion does not identify a separate ground for relief under Rule 60(b)(6). Instead, Halliburton states that “in the event that this Court finds these sections [60(b)(3), 60(b)(2), and 60(b)(5) ] inapplicable, Halliburton is entitled to relief under Rule 60(b)(6) based upon the extraordinary circumstances set out in this Motion.” (Docket Entry No. 341 at 34). Because Halliburton has not stated a ground for relief that is separate from the grounds relied on in seeking relief under the other subsections of Rule 60(b), it cannot obtain relief under Rule 60(b)(6).
See Cent. States, Southeast & Southwest Areas Pension Fund v. Cent. Cartage Co.,
69 F.3d 1312, 1315 (7th Cir.1995) (“Rule 60(b)(6) cannot be used to abrogate the limitations in Rule 60(b)(1) and (3).”);
Horphag Research Ltd. v. Henkel Corp.,
No. 00 Civ. 0438(MBM), 2004 WL 117601 , at *3 (S.D.N.Y. Jan. 26, 2004) (citing
United States v. Int’l Bhd. of Teamsters,
247 F.3d 370, 391-92 (2d Cir.2001), for the proposition that “a Rule 60(b)(6) claim is properly rejected if the reasons given for relief from judgment under that clause can be considered in one of the more specific clauses of Rule 60(b)”).
In addition, the fact that Halliburton relies on documents that it had in its own files during the arbitration is also likely to preclude relief under Rule 60(b)(6). In
Peyton Place,
the Fifth Circuit explained:
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
*653
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 Cir.1988) (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 .... Therefore, the district court did not abuse its discretion in refusing to grant Peyton Place’s Rule 60(b)(6) motion.
62 F.3d at 774 (citation omitted) (emphasis added).
Halliburton has not shown extraordinary circumstances that justify the relief it seeks. In
Atkinson v. Prudential Property Co.,
43 F.3d 367 (8th Cir.1994), the court held:
“Exceptional circumstances” are not present every time a party is subject to potentially unfavorable consequences as a result of an adverse judgment properly arrived at. Rather, exceptional circumstances are relevant only where they bar adequate redress. As noted above, Atkinson had a full and fair opportunity to litigate his claim. The district court properly found that he had failed to comply with Minn.Stat. § 82.33, and the “newly-discovered” letter does not disturb that finding. Accordingly, Atkinson is not entitled to relief under Fed. R. Crv. P. 60(b)(6).
Id.
at 373-74 (footnote omitted).
Even if this court could grant relief on a ground that Halliburton used as a basis for requesting relief under one of the other subsections of Rule 60(b), the fact that Halliburton is relying on documents in its own files that it was not prevented from accessing during the arbitration does not warrant exercising this court’s equitable powers to relieve Halliburton of the arbitration awards or the judgment confirming those awards. The equities weigh against reopening the judgment. The parties chose arbitration. They engaged in a thorough arbitration process in which the panel considered “millions of pages of documents in the form of over 600 exhibits,” heard ten live witnesses, read many affidavits, and viewed at least seven videotaped witnesses. After arbitration, the parties thoroughly litigated the confirmation and vacatur issues in this court. They argued the appeal in the Fifth Circuit, which promptly affirmed the judgment confirming the arbitration awards. The Tremont Parties would clearly be prejudiced by reopening the judgment. Halliburton has not shown any basis to do so.
X. Halliburton’s Motion for Discovery
Halliburton seeks discovery “relating to the knowledge of the Tremont Parties as to the existence of the [newly submitted] documents, the decision to withhold the documents, [and] the knowledge of the Tremont Parties in connection with the documents produced .... ” (Docket Entry No. 342 at 1-2). Since it filed its original motion for discovery, Halliburton has filed a supplemental brief identifying the topics on which it seeks discovery. (Docket Entry No. 357 at 10-11). Halliburton “requests all documents that show the subject property was transferred to TRE Manage
*654
ment Company and/or Tremont LLC.”
(Id.
at 10). Halliburton requests depositions of corporate representatives of NL, Tremont, TRE Holding, TRE Management, and Val-hi, Inc. who can provide testimony on enumerated topics, which generally relate to the process the Tremont Parties used to search for and produce documents in the arbitration.
(See id.
at 10-11). Halliburton also wants to depose David Garten, Tremont’s General Counsel.
(Id.
at 10).
In response, the Tremont Parties point out that Halliburton’s motion for discovery fails to point to a particular section of the Rules of Civil Procedure. (Docket Entry No. 350 at 47). The Tremont Parties argue that there is no authority for permitting discovery into alleged fraud during discovery in the arbitration after Halliburton’s appeal from the judgment confirming the arbitration award has been dismissed.
(Id.).
The Tremont Parties contend that no amount of discovery now will change the fact that Halliburton had the newly discovered documents throughout.
(Id.).
Postjudgment discovery into alleged fraud is not appropriate unless there has been at least some showing of fraud. In
Duhaime v. John Hancock Mutual Life Insurance Co.,
183 F.3d 1 (1st Cir.1999), the court stated:
But after final judgment has entered, our strong interest in the finality of judgments leads courts to intervene in a search for evidence of fraud
only if there has been

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2525155. Public record. Not legal advice.