IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60236

Summary Calendar

SUSAN MICHELE PARKER; CARL GREGG PARKER,

Plaintiffs - Appellants

v.

WAL-MART STORES, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:05-CV-768

Before KING, BENAVIDES and ELROD, Circuit Judges.

PER CURIAM:

*

Plaintiffs - Appellants, Susan Parker and Carl Parker, sued Defendant -

Appellee, Wal-Mart Stores, after Mrs. Parker injured herself while stepping

onto a curb in Wal-Mart’s parking lot. After the district court granted summary

judgment in favor of Wal-Mart, the Parkers moved for relief from the judgment

under FEDERAL RULE OF CIVIL PROCEDURE 60(b). The district court denied the

Parkers’ motion. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

December 13, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I. Factual and Procedural Background

On September 30, 2003, Susan Michelle Parker went to purchase party

supplies at the Flowood, Mississippi Wal-Mart. Mrs. Parker alleges a crack in

the curb in front of that Wal-Mart caused her to fall and break her ankle.

Mrs. Parker brought an action against Wal-Mart in Mississippi state court

seeking actual and punitive damages under Mississippi premises liability law.

Mr. Parker also asserted a claim against Wal-Mart for loss of consortium.

Shortly thereafter, Wal-Mart removed the action to the United States District

Court for the Southern District of Mississippi on the basis of diversity

jurisdiction.

The Parkers served Wal-Mart with interrogatories and requests for

production regarding Wal-Mart’s safety policies at the time of Mrs. Parker’s

accident. The Parkers claim that, in response to their discovery requests, Wal1

Mart produced “Slip, Trip, and Fall Guidelines” dated September 16, 2004 (“2004

 The relevant interrogatories read:

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INTERROGATORY NO. 1: Please state in detail what Wal-Mart’s policies and

procedures are that their agents, employees or representatives are to follow

when they discover a condition on the premises which could rise to injury.

. . . .

INTERROGATORY NO. 6: Please state whether Wal-Mart had any procedures

for regular inspection of the condition of the premises at the time of the

occurrence in question? If so, please describe.

The relevant request for production of documents read:

REQUEST NO. 5: Please produce copies of any rules, management guidelines,

operating guidelines, or other similar writing or document that purports to

show operating procedures for the management, care, maintenance, repair, and

service of the premises in question.

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Guidelines”), which post-dated Mrs. Parker’s accident. These guidelines require

Wal-Mart employees to “[e]nsure the parking lot is free from . . . cracked

sidewalks and curbs” and to “[a]lert a salaried member of management when

these items are in need of repair.”

On February 28, 2007, the district court granted Wal-Mart’s motion for

summary judgment, reasoning the curb was not an unreasonably unsafe

condition as a matter of law. The Parkers appealed, and this court affirmed.

During the pendency of their appeal, the Parkers obtained a copy of WalMart’s August 2003 “Slip, Trip, and Fall Guidelines” (“2003 Guidelines”), which

contained identical language to the 2004 Guidelines. The Parkers filed a motion

before this court to supplement the record with the 2003 Guidelines. Shortly

after that motion was filed, however, they voluntarily withdrew it after WalMart notified the Parkers that the 2004 Guidelines were in effect at the time of

Mrs. Parker’s injury. In withdrawing the motion, the Parkers directed this court

to treat the 2004 Guidelines as evidence of Wal-Mart’s negligence.

After this court affirmed the district court’s order granting Wal-Mart’s

motion for summary judgment, the Parkers filed a Rule 60(b) motion in the

district court. The Parkers argued their claim would have survived Wal-Mart’s

summary judgment motion had Wal-Mart properly produced the 2003

Guidelines.

The district court denied the Parkers’ Rule 60(b) motion. The court held

the 2003 Guidelines would not have changed the outcome of its ruling on WalMart’s motion for summary judgment. The district court held that the Parkers

were not entitled to relief under Rule 60(b) because they had not proven either

that Wal-Mart improperly withheld the 2003 Guidelines or that this withholding

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had prevented them from fully and fairly presenting their case.

II. Analysis

A. Standard of Review

We review a district court’s denial of a Rule 60(b) motion for relief from a

final judgment or order for abuse of discretion. Seven Elves, Inc. v. Eskenazi, 635

F.2d 396, 402 (5th Cir. Unit A Jan. 1981).

B. Waiver

As a preliminary matter, Wal-Mart argues that the Parkers waived review

of the district court’s denial of their Rule 60(b) motion because they characterize

their appeal as seeking review of the district court’s order granting summary

judgment, which this court has already affirmed. Wal-Mart correctly contends

the issue for review is denial of the Parkers’ Rule 60(b) motion and that our

review will therefore necessarily “be narrower in scope than review of the

underlying order of dismissal.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382,

386 (5th Cir. 1978).

The Parkers’ discussion of the actual merits of their appeal remains

largely unchanged from their properly pleaded Rule 60(b) motion below.

Therefore, this court will address the merits of the Parkers’ appeal.

C. Rule 60(b)(2) Relief

The Parkers argue they are entitled to relief under Rule 60(b)(2) because

they did not obtain a copy of the 2003 Guidelines until after the district court

had granted Wal-Mart’s motion for summary judgment. Rule 60(b)(2) allows for

relief from a final judgment based on “newly discovered evidence that, with

reasonable diligence, could not have been discovered in time to move for a new

trial under Rule 59(b).” The Parkers must therefore demonstrate: “(1) that

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[they] exercised due diligence in obtaining the [2003 Guidelines]; and (2) that the

evidence is material and controlling and clearly would have produced a different

result if present before the original judgment.” Helsing v. CSX Transp., Inc., 396

F.3d 632, 639 (5th Cir. 2005). Because we conclude the Parkers have failed to

prove the 2003 Guidelines were material and controlling, we need not decide

whether the Parkers exercised due diligence in obtaining the 2003 Guidelines.

See id. at 641 (addressing only whether evidence was material to determination

of the case below).

Earlier production of the 2003 Guidelines would not have resulted in

denial of Wal-Mart’s motion for summary judgment. As a business invitee, WalMart owed Mrs. Parker a duty to “keep the premises reasonably safe, and when

not reasonably safe, to warn only where there is hidden danger or peril that is

not in plain and open view.” Massey v. Tingle, 867 So. 2d 235, 239 (Miss. 2004)

(citation and internal quotation marks omitted). As noted above, both this court

and the district court have previously held that Wal-Mart’s curb was not an

unreasonably dangerous condition as a matter of law. Therefore, the Parkers’

argument hinges on whether the 2003 Guidelines establish an independent basis

from which a jury could conclude that Wal-Mart breached the duty of care owed

to invitees by not complying with its own internal policies.

Under Mississippi law, “breach of one’s internal policies may be considered

in determining whether one has exercised the appropriate standard of care.”

Boyd Tunica, Inc. v. Premier Transp. Servs., Inc., 30 So. 3d 1242, 1253 (Miss. Ct.

App. 2010). As the district court correctly noted, however, internal policies are

only one consideration among many in that determination. See Steele v. Inn of

Vicksburg, 697 So. 2d 373, 377 (Miss. 1997) (affirming denial of judgment

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notwithstanding a verdict in defendant’s favor despite “ample evidence” of

defendant’s violation of its internal safety policies).

The production of the 2003 Guidelines would not have changed the

outcome of the Parkers’ opposition to Wal-Mart’s motion for summary judgment.

The Parkers’ supported their failed opposition to Wal-Mart’s motion for

summary judgment with an expert affidavit evaluating Wal-Mart’s fault, which

concluded Wal-Mart had breached its duty of care based, in part, on its failure

to comply with the 2004 Guidelines. Moreover, the expert’s opinion would not

have changed if it had been based on the 2003 Guidelines, rather than the 2004

Guidelines, because the language in both sets of guidelines is identical. Thus,

the district court was fully able to evaluate the import of Wal-Mart’s internal

policies at summary judgment and nevertheless granted summary judgment in

favor of Wal-Mart.

Additionally, we are not aware of any cases in which a party’s violation of

its own internal safety policies established a dangerous condition per se.

Accordingly, the district court did not abuse its discretion in denying the

Parkers’ Rule 60(b)(2) motion.

D. Rule 60(b)(3) Relief

The Parkers next argue that they are entitled to relief under Rule 60(b)(3)

because Wal-Mart engaged in misconduct by failing to produce the 2003

Guidelines in response to a discovery request. Rule 60(b)(3) allows for relief

from a final judgment in the event of “fraud . . . misrepresentation, or other

misconduct of an adverse party.” A party is entitled to relief under Rule 60(b)(3)

if: “(1) the adverse party engaged in fraud or misconduct, and (2) . . . this

misconduct prevented the moving party from fully and fairly presenting his

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case.” Helsing, 396 F.3d at 641. The movant must prove misconduct by clear

and convincing evidence. Id.

1. Misconduct

The Parkers have failed to establish by clear and convincing evidence that

Wal-Mart improperly withheld the 2003 Guidelines. This court has previously

held that the failure to produce documents that are responsive to interrogatories

and discovery requests, when coupled with awareness of those documents,

establishes misconduct. See Rozier v. Ford Motor Co., 573 F.2d 1332, 1341–42

(5th Cir. 1978).

The Parkers’ have not proven that Wal-Mart withheld the relevant

guidelines. After the Parkers moved to supplement the record with the 2003

Guidelines, Wal-Mart notified the Parkers that the 2004 Guidelines were,

consistent with the Parkers’ discovery request, the guidelines in force at the time

of Mrs. Parker’s injury. At no stage of litigation did Wal-Mart argue that the

guidelines from which the Parkers’ expert concluded Wal-Mart had violated its

standard of care were not applicable at the time of the accident. Wal-Mart ought

not be penalized for the Parkers’ supposition, without further investigation, that

the produced guidelines did not comply with the discovery request.

The fact that Wal-Mart also sought to rectify any faulty production to the

Parkers also militates against finding misconduct on its part. See id., 573 F.2d

at 1342 (finding misconduct, in part, because counsel did not make efforts to

rectify incorrect interrogatory answers upon discovery of requested documents).

2. Full and Fair Presentation

As a final matter, the Parkers have not proven that Wal-Mart’s failure to

produce the 2003 Guidelines prevented them from fully and fairly presenting

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their case. The Parkers argue that they were prejudiced by Wal-Mart’s failure

to produce the 2003 Guidelines because they were unable to argue that WalMart had violated its internal safety policies at the time of Mrs. Parker’s injury.

See Rozier, 573 F.2d at 1342 (“Inevitably, information developed in the discovery

stages of the case influenced the decision as to which theories would be

emphasized at trial.”). We disagree.

The 2003 and 2004 Guidelines contain identical language regarding curb

maintenance. Based on that language, derived from the 2004 Guidelines, the

Parkers developed expert testimony on Wal-Mart’s standard of care and breach

of that standard of care. The Parkers supported their opposition to Wal-Mart’s

motion for summary judgment with an expert affidavit concluding Wal-Mart

breached its standard of care based on those same guidelines, which the Parkers

now contend were not applicable at the time of the accident. Finally, the

Parkers directed this court, after withdrawing their motion to supplement the

record when appealing the district court’s grant of summary judgment, to treat

the 2004 Guidelines as evidence of Wal-Mart’s negligence. Wal-Mart’s

production of the 2004 Guidelines clearly did not make “a difference in the way

[the Parkers’] counsel approached the case or prepared for trial.” Id. (citation

and internal quotation marks omitted). The district court did not abuse its

discretion in denying the Parker’s Rule 60(b)(3) motion.

III. Conclusion

For the above reasons, we AFFIRM.

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