### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 11201

JOSE LUIS HERNANDEZ , Plaintiff

–

Appellant ,

v ersus RESULTS STAFFING, INCORPORATED , Defendant

– Appellee.

Appeal from the United States District Court for the Northern District of Texas

Before SMITH , CLEMENT , and COSTA , Circuit Judges

. JERRY E. SMITH, Circuit Judge : “If this case is an example, the term ‘civil procedure’ is an oxymoron.” Green v. GTE Cal., Inc. , 34 Cal. Rptr. 2d 517, 518 ( Cal. Ct. App. 1994). It c omes before us for a second time , more than five years after Results Staffing , Incorporated (“RSI”) , fir ed Jose Hernandez for failing to report to work

. Her

nandez appeals the interlocutory order granting R SI’s Federal Rule of Civil Proce dure 60(b) motion for relief from our prior judgment. See Hernandez v. United States Court of Appeals Fifth Circuit 

### FILED October 24, 2018

Lyle W. Cayce Clerk Case: 17-11201 Document: 00514695327 Page: 1 Date Filed: 10/24/2018No. 17

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2 Results Staffing , Inc ., 677 F. App’x 902 (5 th Cir. 2017). W e affirm.

I. RSI, which provides unskilled day laborers to third parties, employed Hernandez, an Army reservist, beginning in early 2013. After attending a week end military training session July 12

– 14, 2013, Hernandez failed to appear for work on Monday, July 15, and instead visited a local emergency room complaining of a headache and lower back pain. R SI fired Hernandez for violating the company’s “no call/no show” policy, which “requires employees to call in four hours before a schedule d start time if they are unable to report to work.” Hernandez sued in 2014 , alleging that R SI had violated his rights under the Uniformed Services Employment and Re employment Rights Act of 1994 (“USERRA” ).
R SI served Hernandez with two requests for produ ction concerning med

i ca l records from his July 15 visit to the emergency room. The first request (“No . 12”) sought “[a]ll documents related to any visits [Hernandez] had with civilian medical personnel in July 2013, including all documents related to [Hernandez’s] visit to the hospital on July 15, 2013, as alleged in [his] [p]eti

tion.” The second request (“No . 19”) sought “[a]ll documents relating to any med ical treatment that [Hernandez] underwent for the injury alleged in [his] [p]etition.”
Hernan dez objected to these requests but nonetheless produced a one

page doctor’s note in which the attending physician wrote that Hernandez was under his care on July 15, 2013 , and would be able to work the next day. Nei

ther Hernandez nor his counsel gave any indication that additional medical records existed. R SI later provided Hernandez with an a uthorization for

r elease of p rotected h ealth i nformation , which Hernandez signed on March 12, 2015. R SI did not make use of the signed authorization to obtain the relevant Case: 17-11201 Document: 00514695327 Page: 2 Date Filed: 10/24/2018No. 17

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3 medical records. Hernandez’s counsel received copies of Hernandez’s medica l records from July 15 on (in his words) “either Friday, May 1 5 th or Monday, May 18th [2015],” shortly before trial. 1 Hernandez’s lawyer claims that he then “at

tempted to fax them to [R SI ’s] counsel, even though [R SI ’s] counsel already had an authori za tion to obtain the records from the hospital.” The fax allegedly failed to transmit. 2 Following a non

- jury trial i n May 2015, the district court denied Hernan

dez any relief. W e reversed, rendering “ judgment in favor of Hernan dez ” and remanding “ the case to the district court to determine [ his ] damages .” Id

. at 908. On remand, R SI discovered that “[Hernandez] and his wife had given false testimony at trial concerning [his] service

- related back condition and his reason for going to the emergency room

. ” Additionally, as the district court explained, RSI also found t hat “[Hernandez] and his counsel had in their possession in advance of the trial hospital recor ds, which should have been, but were not, disclosed to [R SI] before the trial that showed the true reason for [Hernandez’s] trip to the emergency room [on] the morning of July 15, 2013.”
After th at discovery, R SI filed a Rule 60(b) motion for relief from j udgment , attaching Hernandez’s July 15 emergency room records, which

1 As the district court highlighted in its order granting R SI ’s Rule 60(b) motion, “[Her

nandez] generally represented in his response document that ‘documents responsive to this request in the possession, custody and control of the Plaintiff are attached as Exhibits in response to the Defendant’s wr itten discovery requests . . . .’”

2 At the hearing on the Rule 60(b) motion, the district court examined Hernandez’s attorney, Ryan R ay, concerning his claim of a failed fax transmission . The court noted that the failed fax containing the medical records was allegedly sent at 11:24 pm , well outside of normal business hours, and that Ray discovered the failed fax attempt just days before the Rule 60(b) motion he aring (in 2017). Case: 17-11201 Document: 00514695327 Page: 3 Date Filed: 10/24/2018No. 17

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4 demon strated that the primary reason for Hernandez’s visit was a headache ( not a back injury, aggravated by his weekend military service, as he had claimed). 3 In opposition , Hernandez c ontend ed that, inter alia , the district court lacked jurisdiction to consider the motion for relief from judg ment, the records “con firm that [Hernandez] was treated for a back injury,” R SI had failed to exercise diligence in obtaining the records, and co unsel’s “failure to disclose was inadvertent.”
T he district court granted the Rule 60(b) motion, finding that [Hernandez’s] visit to the emergency room [on] the morning of July 15, 2013 , was not for care or treatment of an aggravation of a back condition he suffered while on military duty over the preceding week end but, instead, was for treatment of a severe headache, prob ably a migraine in character , that had its onset after he ar

ri ved home the morning of July 15, 2013, and that the low back pain he mentioned upon his hospital admission as an associated symptom was not the cause of his visit to the hospital but was a
non - disabling chronic back pain that [Hernandez] had been suf

ferin g for years. The court also determined that Hernandez and his wife gave intentionally false testimony “ in order to disadvantage and mislead [R SI ] in its trial preparation and presentation, and that [this testimony] ultimately misled [ the Fifth Cir

cuit ] in [Hernandez’s initial ] appeal.” Furthermore, the district court found that Hernandez’s lawyer failed to “take appropriate steps to supplement an incomplete and misleading response [Hernandez] had made to [R SI ’s] pre vi

ously served discovery request . . . seeking production of all documents related to [Hernandez’s] visit to the emergency room.” The court determined that Hernandez’s purpose in doing so was to “mislead[] [R SI ] and its counsel into believing that [Hernandez’s] July 15, 2013 visit to the em ergency room was for

3 At trial, Hernandez had testified to the following: “I woke up, and I was in severe pain. My left leg was locked at a 90

- degree angle. I had a stabbing sensation in the lower left side of my ba ck. I was crying. I was wincing. At times, it was difficult to breathe.” Case: 17-11201 Document: 00514695327 Page: 4 Date Filed: 10/24/2018No. 17

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5 care and treatment of an aggravation of a back condi tion that he suf fered over the weekend [of July 12

– 14, 2013] while performing military duties.” In granting the Rule 60(b) motion , the district court ultimately con clud ed , inter alia , that Hernandez’s actions placed “[R SI ] at an unfair disad

vantage in def ending itself at the trial” and “put the Fifth Circuit at an unfair dis advantage in evaluati ng
. . . the true facts [of this case]. ” T he court also deter mined , however, that t here was “substantial ground for difference of opin

ion” concerning whether providing a signed a uthorization for r elease of pro tected health i nformation is sufficient to satisfy the signing party’s ongoing discovery obligations under Federal Rules of Civi l P rocedure 34, 26(b), and 26(e). Con sequently, the court certified th at question for interlocutory review under 28 U.S.C. § 1292(b). We granted Hernandez’s unopposed motion for leave to appeal the interlocu tory order.

II. Hernandez contends that the dist rict court lacked juris diction t o grant relief per Rule 60(b)(3) because i t effec tively set asi de the judg ment of this
court. Under the facts and circumstances of this case, w e disagree. 4
Federal Rule of Civil Procedure 60(b) provide s grounds by which a “court may relieve a party or its legal representative from a final judgment, order, or proceeding , ” including in cases involving fraud, misconduct, or misrepresen

tation by an adverse party. 5 In Standard Oil Co. of California v. United States ,

4 This court reviews de novo a n interpretation of a federal rule of civil procedure. See Lowry Dev. , L.L.C. v. Groves & Assocs. Ins., Inc. , 690 F.3d 382, 385 (5th Cir. 2012). Acc ord

ingly, th is jurisdictional question is reviewed de novo

. See id .; see also Frazar v. Ladd , 457 F.3d 432, 435 (5th Cir. 2006) (“We review de novo . . . any questions of law underlying the district court’s decision.”).

5 F ED

. R. C IV

. P. 60(b)(3). The rules also contain a “catch

- all” provision that allows for relief from a judgment, order, or proceeding for “any other reason that justifies relief.” F ED

. Case: 17-11201 Document: 00514695327 Page: 5 Date Filed: 10/24/2018No. 17

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6 4 29 U.S. 17, 17 (1976) (per curiam), the Court held that a district court may entertain a Rule 60(b) motion without first obtaining leave of the appellate
court. 6 T he Court found “the arguments in favor of requiring appellate leave

. . . unpersua sive,” no ting that such a requirement “adds to the delay and expense of litiga tion and . . . burdens the increasingly scarce time of the federal appellate courts.” Id. at 18

. Because Standard Oil did not explicitly state whether its ruling was lim

ited to cas es in which the court of appeals affirms , Hernandez asserts that where the appellate court reverses , the district court is not permitted to enter

tain a Rule 60(b) motion unless “the court of appeals recalls its mandate.” Hernandez cites a previous line of precedent in which the Supreme Court appeared to require the moving party to obtain leave of the higher court before a lower court could disturb its judgment. 7
Hernandez’s theory fails for two reasons. First, Standard Oil overruled Hazel

- Atlas

. See Mc Clu r e v. F.D.I.C , No. 93

- 8216, 1994 WL 14096, at *2 n.5 (5th Cir. Jan. 4, 1994). Second, this court has not

— at least since Standard Oil

— required a party to obtain its leave before a district court may entertain a Rule 60(b) motion. In United States v. Wa rden , for example, we declined to hear a Rule 60(b) motion for relief, noting that “[a]pplication for relief under

R. C IV

. P. 60(b)(6).

6 Before Standard Oil , the Supreme Court and numerous courts of appeals had “required appellate leave before the District Court could reopen a case which had been reviewed on appeal.” Standard Oil , 429 U.S. at 18.

7 In Hazel

- Atlas Glass Co. v. Hartford

- Empire Co. , 322 U.S. 238 , 248 (1944) , the Court noted that a judgment that had been reviewed on appeal “ was not subject to impeachment

. . . because a trial court lacks the power to deviate from the mandate of an appellate court. ” S ee also In re Potts , 166 U.S. 263, 267 (1897) (contending t hat a once a higher court has decided a case on appeal, the lower court “has no authority, without express leave of [the higher ] court, to grant a new trial, a rehearing, or a review, or to permit new defenses on the merits to be introduced by amendment of the answer”). Case: 17-11201 Document: 00514695327 Page: 6 Date Filed: 10/24/2018No. 17

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7 such rule is to be made . . . to the district court which rendered the judgment.” 8
A t least one other circuit has squarely addressed th is que st ion . In De

Weerth v. Baldinger , 38 F.3d 1266, 1270− 71 (2d Cir. 1994), the court held that a district court retains jurisdiction to review a Rule 60(b) motion for relief even after a reversal

. 9 The court also found , id. , that its refusal to recall a man date had no bearing on the district court’s jurisdiction over a Rule 60(b) motion. Accordingly, under Standard Oil the district court had jurisdiction to

con sider R SI ’s motion for relief under Rule 60. “ [T] he appellate mandate relates to the record and issues then before the court, and does not purport to

8 Nos. 94

- 20438, 94

- 20641, 1995 WL 413034, at *3 (5th Cir. June 22, 1995) (per cur

iam) ; see also Lindy Invs. III v. Shakertown 1992 Inc. , 360 F. App’x 510, 512 (5th Cir. 2010) (per curiam) (remarking that “in light of changed circumstances” the lower court “did not ‘flout[] the mandate by acting on the motion’” (quoting Lindy Invs. III v. Shakertown 1992 Inc. , 631 F. Supp. 2d 815, 81 9 n.6 (E.D. La. 2008))); Logan v. Burgers Ozark Country Cured Hams Inc. , No. 02

- 30325, 2003 WL 1524574, at *3 (5th Cir. Mar. 12, 2003) (per curiam) (high

lighting that “the appellate mandate relates [only] to the record and issues then before the court, and does not purport to deal with possible later events ” (quoting Standar d Oil , 429 U.S. at 18)); LSLJ P ’ ship v. Frito

- Lay, Inc. , 920 F.2d 476, 478 (7th Cir. 1990) (“[A] district court may reopen a case which had been reviewed on appeal without leave from the court of appeals. ”).

9 DeWeerth involved a suit between two parties o ver a painting by French impres sion

ist Claude Monet that was allegedly stolen from a castle in southern Germany during the waning days of the Second World War. See DeWeerth v. Baldinger , 658 F. Supp. 688, 690 (S.D.N.Y. 1987). After a bench trial, the c ourt awarded the painting to DeWeerth based, at least in part, on a finding that the applicable New York statute of limitations had not yet
run. Id. at 693

– 96. The Second Circuit reversed, contending that the applicable New York stat ute of limitations had, in fact, run. See DeWeerth v. Baldinger , 836 F.2d 103, 109

– 10 (2d Cir. 1987). In 1991, the New York Court of Appeals interpret ed the state’s statute of limi ta

tions in a manner consistent with the district court’s original ruling. See Solomon R. G ug
genheim Found. v. Lubell , 569 N.E.2d 426, 430

– 31 (N.Y. 1991). Noting that the state court’s ruling was sufficient to constitute a “material change in circumstances,” the district court granted the plaintiff’s Rule 60 motion. DeWeerth v. Bal dinger , 80 4 F. Supp. 539 , 541 (S.D.N.Y. 1992). In doing so, the district court noted that the Sec ond Circuit had declined to alter its mandate in the wake of Guggen heim , which it sug gested “ may have been because the district court rather than the appellate court is the appropriate initial forum for seeking redress due to post

- decisional changes in law or facts. ” Id . The Second Circuit reversed the ruling on the Rule 60(b) motion but noted that the dis trict court did have jurisdiction to review the motion for r elief. See DeWeerth 38 F.3d at 1270

– 71. Case: 17-11201 Document: 00514695327 Page: 7 Date Filed: 10/24/2018No. 17

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8 deal with possible later events. ” Standard Oil , 429 U.S. at 18. T he dis trict
court determined that Hernandez and his counsel had made numerous mis

representations to both this court and the district court that were dis cov ered after we ruled

. Th o se misrepresentations were “possible later events , ” refer

enced in St andard Oil , sufficient to warrant action by the district court. Id

. T hat the Rule 60(b) motion came on the heels of a reversal , rather than an affirma nce , of the initial ruling is an insufficient basis for stripping a district court of its jurisdiction to hear Rule 60(b) motions with out leave. Such a stan

dard would be inconsi stent with the rationale behind St andard Oil

. See i d.
at 18

– 19.

III. Hernandez asserts that a party who signs an authorization for release of protected health information is completely discharged from the obligation of producing records controlled by healthcare providers. Again, we disagree.
T he production of documents, including medical records, is governed by Federal Rule of Civil Procedure 34 (a): “ A party may serve on an y other party a request within the scope of Rule 26(b)

. . . to produce and permit the request

ing party or its representative to inspec t, copy, test, or sample [any designated documents] in the responding party’s possession, custody, or control.” A request within the scope of Rule 26(b) includes “any nonprivileged matter that is relevant to any party’s claim or defense and proportional t o the needs of the case.” F ED

. R. C IV

. P. 26(b). In addition, a party making a disclosure under , inter alia , a request for production , “must supplement or correct its disclosure
or response
. . . in a timely manner if the party learns that in some way th e disclosure or response is incomplete or incorrect, and if the additional or cor

rective information has not otherwise been made known to the other parties during the discovery process or in writing.” F ED

. R. C IV

. P. 26(e). Case: 17-11201 Document: 00514695327 Page: 8 Date Filed: 10/24/2018No. 17

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9 Hernandez maintains that , once signed, the records authorization re lieved him from any further discovery obligation with respect to the medical records. H e cites Jackson v. United Artists Theatre Circuit, Inc. , 278 F.R.D. 586, 593 (D. Nev. 2011), holding that the plaintiff did no t violate the discovery rules by voluntarily providing a signed medical authorization for a defendant to “obtain the plaintiff’s medical records . . . directly from the providers.” 10 Her

nandez cites additional caselaw, including Clark v. Vega Wholesale , I nc. 11 and Neal v. Boulder , 12 for the proposition that a party’s medical records are not in his possession, custody , or control. 13 Under Hernandez’s theory, he had no further obligation to pro duce or permit inspection of his medical records because they were in the hands of a third party. RSI responds that “providing a medical records authorization does not relieve Hernandez of the duty to produce documents in his actual possession, particularly where . . . such documents contradicted key elements of his prior testimony.” RSI relies on Frieman v. USAir Group , Inc. , for the proposition that a defendant’s “ability to obtain the documents from alternate sources does not excuse the plaintiffs from their obligation to produce the documents.” 14

10 The Jackson court further asserted that “Rule 34 does not require the responding party to provide copies of documents” but only permits “inspection and copying by the request ing party.” 278 F.R.D. at 593

. 11 181 F.R.D. 470, 472 (D. Nev. 1998).

12 142 F.R.D. 325, 327 (D. Colo. 1992).

13 Clark and Neal were cases in which the requesting party was seeking a court order to compel a responding party to provide a signed medical release form. See 181 F.R.D. at 471; 142 F. R.D. at 326. Here, the requested medical authorization form was provided vol un tarily. Additionally, it is undisputed that Hernandez’s counsel had Hernandez’s rele vant medical records in his physical possession on or about May 15, 2015, more than a week and a half before trial began.

14 Civ. A. No. 93

- 3142, 1994 WL 675221, at *4 (E.D. Pa. Nov. 23, 1994); see also Doe v. District of Columbia , 231 F.R.D. 27, 3 5 (D.D.C. 2005) (finding that medical records are in a plaintiff’s control and requiring either an authorization for their release or production of the records “if [the plaintiff] has a copy”); Orleman v. Jumpking , Inc. , No. CIV. A. 99

- 2522

- CM, Case: 17-11201 Document: 00514695327 Page: 9 Date Filed: 10/24/2018No. 17

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10 W e do not need to reach the more difficult question whether the signing of an a uthorization for r elease of p rotected health i nformation is sufficiently responsive to a Rule 34 request for production , because once Hernandez’s coun

sel obtained physical possession of the rec ords, he had a continuing oblig a tion under Rule 26(e) to disclose them to R SI

. By declining to do that, Hernan dez failed to meet his obligations under the federal rules, which include a duty to supplement prior disclosures “in a timely manner” if the y a re incomplete and “if the additional . . . information has not otherwise been made known to the other parties during the discovery process or in writing.” F ED

. R. C IV

. P. 26(e).
Hernandez’s disclosure of the initial one

- page letter was an incomplete response to at least two of R SI ’s requests for production of the July 15 records. Neither Hernandez nor his counsel gave any further indication that additional medical records from that day existed. Additionally, Hernandez failed to
pr ovide R SI with an a uthorization for r elease of protected health i nformation as part of his discovery response. R SI got that authorization only when it approache d Hernandez to sign a release. As the district court highlighted, Her nandez’s “discovery resp onse, in effect, told defense counsel that the doc

tor’s letter constituted the only emergency record [ Hernandez] had the ability to obtain from the hospital.” “Our system of discovery was designed to increase the like lihood that justice will be served in each case, not to promote principles of gamesmanship and deception in which the person who hides the ball most effectively wins the case.” Abrahamsen v. Trans

- State Express, Inc. , 92 F.3d

2000 WL 1114849, at *5 (D. Kan. July 11, 2000) (“[W] here responsive information is in [the defen dant’s] possession, [the defendant] is obligated to produce the information, whether or not [the] plaintiff has obtained the infor mation from an alternate source. T he rules of di s covery do not permit parties to withhold material because the opponent

. . . could discover it on their own. ”); Bowman v. Consol. Rail Corp. , 110 F.R.D. 525, 527 (N.D. Ind. 1986) (deter

min ing that a party with a legal right to obtain information relate d to his unemployment benefits was required to provide th at information on a Rule 34(a) discovery request). Case: 17-11201 Document: 00514695327 Page: 10 Date Filed: 10/24/2018No. 17

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11 425, 428−29 ( 6th C ir. 1996).

IV. Hernandez posits that RSI was not pr evented from fully and fairly pre

senting its case, as contemplated by Rule 60. Additionally, in his reply brief, he contends that “review of discretionary decisions,” such as the district court’s decision to grant R SI relief from this court’s judgment, “ is unavailable on an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).” 15

A. Section 1292(b) provides , in relevant part , as follows : When a district judge, in making in a civil action an order not oth

erwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an imme

di ate appeal from the order may materially advance the ultimate termination of the litigation, he shall s o state in writing in such order. Although “the Court of Appeals’ jurisdiction is not confined to the precise ques

tion certified by the lower court ( because the stat ute brings the ‘ order, ’ [and] not the question, before the court),” our juris diction is nonetheless “confined to the particular order appealed from.” United States v. Stanley , 483 U.S. 669, 677 (1987). “ [W] hile we may not reach beyond the [district court’s] order to address other orders in the case, we are free to address ‘questions that a re mate rial to the lower court’s certified order’” as part of an interlocutory

15 Hernandez cites Simon v. G.D. Searle & Co. , 816 F.2d 397 (8th Cir. 1987) , which addressed the appropriate standard of review for the interlocutory appeal and found that although “ the questions of law certified by the district court ” are reviewed de novo , the court s of appeals “remain free to consider ‘such questions as are basic to and underli e’ the ques tions certified by the district court.” Id . at 400 ( quot ing Helene Curtis Indus ., Inc

. v
. Church & Dwight Co ., 560 F.2d 1325, 1335 (7th Cir. 1977)). Case: 17-11201 Document: 00514695327 Page: 11 Date Filed: 10/24/2018No. 17

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12 appeal. 16 Accordingly , we have discretion to reach the third issue briefed by the parties if it is material to the certified order

. 17 We review for abuse of discre

tion the district c ourt’s decision to grant Rule 60(b) relief

. 18
T he district court based its decision on a finding that R SI was prevented from fully and fairly litigating its case . Th at finding was material to the cer ti

fied order because the order itself per tai ned exclusively to the motion for relief from judgment

. The district co urt prem ised its grant of the motion on a belief that Hernandez had violated the federal discovery rules by failing to turn over relevant medical records and that that failure constit uted misconduct as con

templated by Rule 60(b ). 19 Accord ingly, we next review , for abuse of discre tion , the grant of the Rule 60(b) motion

. B. Rule 60(b) (3) permits a court to grant relief from a final judgment or

16 Spong v. Fid. Nat’l Prop. & Cas. Ins. Co. , 787 F.3d 296, 304 (5th Cir. 2015) (quoting Castel lanos

- Contreras v. Decatur Hotels , LLC , 622 F.3d 393, 398 (5th Cir. 2010)).

17 See , e
. g ., Moorman v. UnumProvident Corp. , 464 F.3d 1260, 1264 (11th Cir. 2006) (reviewing for abuse of discretion , as part of an interlocutory appeal, the denial of a discovery order ). “ [R] eview by appellate courts of noncertified questions is also discretionary , ” so long as the noncertified question is materially related to the order. Id. at 1272.

18 See , e.g. , United States v. Sealed Juvenile 1 , 151 F. App’x 336, 336 (5th Cir. 2005) (per curi a m) (“ Before the court is an interlocutory appeal of an order

. . . transferring appel

lant

. . . for prosecution as an adult

. Appellant argues that the district court abused its dis

cre tion in granting the Government’ s motion to transfe r proceedings

. . . to an adult criminal prosecution. We have reviewed the record

. . . and find no abuse of dis cretion. ”); see also United States v. NCR Corp. , 688 F.3d 833, 837 (7th Cir. 2012) ( stat ing that a pre liminary injunction is reviewed using a n abuse

- of

- discretion standard); Mercantile Tr

. Co. Nat’l Ass’n v. Inland Marine Prods. Corp. , 542 F.2d 1010 , 1012 (8th Cir. 1976) (finding, on an inter loc u tory appeal, that “[ t ] he proper test in reviewing an order denying leave to amend under [Fed

eral Rule of Civil Procedure] 15(a) is whether the District Court has abused its discretion .”).

19 J udicial efficiency weighs in favor of deciding all three issues presented here as part of this interlocutory appeal instead of waiting for a n appeal of the third issue after judgment

. Cf. Moorman , 464 F.3d at 1272. Case: 17-11201 Document: 00514695327 Page: 12 Date Filed: 10/24/2018No. 17

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13 order for “fraud

. . . , misrepresentation, or misconduct by an oppos ing party.” T o prevail on a Rule 60(b)(3) motion, a party must establish , by clear and con

vincing evidence , see Rozier v. Ford Motor Co. , 573 F.2d 1332, 1339 (5th Cir. 1978), “(1) that the adverse party engage d in fraud or other mis conduct, and (2) that this misconduct prevented the moving party from fully and fairly pre

senting his case.” 20

1. The district court made extensive findings that “[Hernandez], often through his attorney, engaged in fraud, misreprese ntation, and misconduct in [his] presentations, verbally and in writing, to the court in pretrial matters, during the trial, and in his presentations to the Fifth Circuit in support of his appeal from [the district] court’s dismissal of his claims , ” sufficient to satisfy Rozier ’s first requirement

. Following a n exhaustive review of the record, the dis trict court concluded that Hernandez’s written submissions “were designed to lead the reader to think that [Hernandez’s] sole reason for going to the

e mergency room on the morning of July 15, 2013 , was to obtain care and treat

ment for a back injury he aggravated while serving a military tour of duty the preceding week end.” The written representations were supported by Her

nandez’s and his wife’s in

- co urt testimony , and at no point did Hernandez “dis

close that his reason for going to the emergency room [on] the morning of July 15, 2013, was for treatment of a headache he developed that morning while at home.”
In addition to the falsifications made to the district court, Hernandez

20 Hesling v. CSX Transp. , Inc. , 396 F.3d 632, 641 (5th Cir. 2005) (citing Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place , 62 F.3d 767, 772 (5th Cir. 1995)). Ultimately, “[t] he purpose of [Rule 60 (b)(3)] is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect.” Diaz v. Methodist Hosp. , 46 F.3d 492, 496 (5th Cir. 1995)

. Case: 17-11201 Document: 00514695327 Page: 13 Date Filed: 10/24/2018No. 17

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14 made similar misrepresentations to this court and failed to tender, as part of R SI ’s request for production, all medical records related to his visit to the emer

gency room. T he district court found that the “ record was false in that it failed to disclose [Hernandez’s] true reasons for his visit to the hospital emer gency room,” which affected both the trial and appellate proceeding s
.
2. The district court also found, by clear and convincing evidence, that the misconduct prevented R SI from having a full and fair opportunity to present its case. The court posited that had “the truth concerning [Hernandez’s] reason for admission to the hospital . . . been disclosed during or before the trial, [R SI ] would have been in a posi tion to effectively argue ,” inter alia , “ that [Her nan dez’s] failure to be at work [on] the morning of July 15, 2013, was not the result of any military

- related injury, or aggravation of an injury, and that during the day of July 15, 2013, [Hernandez] was not convalescing from such an injury or aggravation.” The court also found that the misrepresentations to it , as well as the failure to disclose Hernandez’s medical records , affected R SI ’s initial appeal to th is court . Specifically, the district court hi ghlighted an exchange at this court’s oral argument between one of the judges and counsel for R SI in which the judge asked counsel whether there was any evidence that rebutted Hernan

dez’s assertion that an aggravation of a preexisting back injury was the basis for his visit to the emergency room. Ultimately, the district court’s findings in its order are sufficient to satisfy Rozier ’s second requirement that the alleged misconduct must have prevented R SI from fully and fairly litigating its case.

3. In Ande rson v. Cryovac, Inc. , 862 F.2d 910, 925 (1 st Cir. 1988) , the court Case: 17-11201 Document: 00514695327 Page: 14 Date Filed: 10/24/2018No. 17

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15 maintained that “where discovery material is deliberately suppressed, its absence can be presumed to have inhibited the unearthing of further admissi

ble evidence adverse to the withholder, that is, to have substantially interfered with the aggrieved party’s trial preparation.” Although Anderson is not bind

ing on this court, its holding is instructive. Here, the misrepresentations by Hernandez, his wife, and his counsel, as wel l as the failure to disclose medical records responsive to R SI ’s discovery requests, presumably “inhibited the unearthing ” of evidence adverse to Hernandez and “substantially interfered” with defense counsel’s prep aration. In this sense, the grant of R SI ’s motion for relief from our prior judgment was not an abuse of discretion because it was not based on a “clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx , 496 U.S. 384, 405 (1990)

. The district court correctly applied our two

- pron ged test for Rule 60(b)(3) motions , finding, by clear and convincing evidence, that Hernandez engaged in fraud or other misconduct t hat prevented R SI from fully and fairly litigating its case.
Hernandez contends that Diaz bars relief. There, we affirmed t he denial of a plaintiff’s Rule 60(b)(3) motion for relief that was based on a post

- trial allegation of perjury. Diaz , 46 F.3d at 496

– 97. Finding that the plaintiff failed to show by clear and convincing evidence that perjury had occurred and “that any perjured testimony prevented her from fully and fairly presenting her case,” we declined to reverse. Id . at 497.
Diaz is distinguishable on its facts. “If unequivocal evidence establishes that a party willfully perjured himself, and thereby prevented the opposition from fully and fairly presenting its case, use of Rule 60(b)(3) to grant the inno

cent party a new trial would be a proper response.” Id . (emphasis added). The Diaz plaintiff’s failure to establish by clear and convi ncing evidence that the Case: 17-11201 Document: 00514695327 Page: 15 Date Filed: 10/24/2018No. 17

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16 d efendant’s actions prevented her from fully and fairly litigating her case did not change our Rozier standard with respect to Rule 60(b)(3) motions. In sum, t he district court found that R SI establish ed , by clear and con

vinc ing evidence, that Hernandez’s misconduct prevented it from a full and fair hear ing of its case. Thus, the court did not abuse its discretion when it granted relief from judgment. 21
The order granting relief under Rule 60(b)(3) is AFFIRMED.

21 In the alternative, the district court assert ed that R SI “would be en titled to the relief it seeks pursuant to the authority of Rule 60(b)(6)” if not Rule 60(b)(3). Rule 60(b)(6) per mits a court to grant relief from a judgment or order for “any other reason that justifies relief.” Because R SI was entitled to relief under Rule 60(b)(3) and because the district court did not abuse its discretion in granting such relief, we do not reach the question whether Rule 60(b)(6) provides alternative grounds. Case: 17-11201 Document: 00514695327 Page: 16 Date Filed: 10/24/2018