IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10304

EFRAIN AREIZAGA, 

 Plaintiff - Appellant

v.

ADW CORPORATION, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:14-CV-2899

Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.

PER CURIAM:*

The plaintiff is a former employee of the defendant. Among his various 

claims was that his employer violated the Fair Labor Standards Act. The 

district court ordered mediation, which seemingly was successful. The parties 

executed a settlement agreement, and the plaintiff dismissed his suit. On 

appeal now is the district court’s denial of the plaintiff’s year-later motion for 

relief from that judgment. We AFFIRM.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2020

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

From 2010 to 2013, Efrain Areizaga worked for ADW Corporation, which 

provides heating and cooling equipment and architectural products in north 

Texas. Areizaga was involved with preparing price estimates for sales of the 

products. It is ADW’s position that Areizaga voluntarily ended his employment 

in June 2013. Areizaga disagrees. He brought suit in Texas state court in July 

2014, claiming ADW through contract breaches, tortious conduct, and 

violations of the Fair Labor Standards Act, caused his resignation. ADW 

timely removed the case to the United States District Court for the Northern 

District of Texas.

The parties settled after participating in court-ordered mediation in 

2016. On Areizaga’s motion, the district court dismissed the case with 

prejudice in August 2016. Less than a year later, Areizaga moved for relief 

from the final judgment under Rule 60 of the Federal Rules of Civil Procedure, 

claiming fraud and intimidation during the mediation. The district court 

denied the motion on February 12, 2018, and Areizaga noticed his appeal on 

March 8.

Areizaga seeks review of three interlocutory orders of the district court

that predate the order of dismissal. He also seeks reversal of the district court’s 

denial of his Rule 60(b)(3) motion. 

DISCUSSION

We do not have jurisdiction over the three orders predating the final 

judgment that followed Areizaga’s motion to dismiss. That is because there 

was no timely appeal of the final judgment. A party dissatisfied with a final 

judgment has 30 days to file a notice of appeal. 28 U.S.C. § 2107(a); FED. R.

APP. P. 4. Failure to appeal within the statutory period is a jurisdictional 

failure. Bowles v. Russell, 551 U.S. 205, 210–11 (2007). Here, more than a 

year passed between the final judgment and the current appeal.

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Jurisdiction does exist, though, over the appeal of the denial of the Rule 

60(b)(3) motion. We review the district court’s denial of that motion for an 

abuse of discretion. Bailey v. Cain, 609 F.3d 763, 767 (5th Cir. 2010). 

Areizaga claims entitlement to relief from the final judgment on the 

basis of “fraud . . . , misrepresentation, or misconduct by an opposing party.” 

FED. R. CIV. P. 60(b)(3). To succeed on such a motion, the movant must show 

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.” Hesling v. CSX Transp., Inc., 396 

F.3d 632, 641 (5th Cir. 2005). 

Areizaga claims that ADW engaged in fraud and misconduct by failing 

to answer fully a discovery request and by allegedly threatening him during

mediation. The threat allegedly is what led to his agreement to settle the case. 

Areizaga feared losing his job because ADW allegedly threatened legal action

against his new employer, Bartos, due to Areizaga’s use of ADW’s proprietary 

information. ADW also allegedly communicated with Bartos about the use of 

proprietary information. Areizaga asserts that he would not have worried 

about his job, and thus would not have been as susceptible to threats, had he 

known that ADW directly communicated with his employer.

The district court concluded that Areizaga failed to prove ADW engaged 

in fraud by its response to a discovery request. A party engages in misconduct 

under Rule 60(b)(3) when it knowingly fails to disclose evidence called for by a 

discovery order. Government Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc., 

62 F.3d 767, 772–73 (5th Cir. 1995). Although discovery orders are different

from discovery requests, we do not endorse the district court’s view that failing 

to give a complete and accurate answer to an interrogatory is not fraud or 

misconduct. We agree with the district court, though, that the allegedly 

incomplete response here could not have had any effect. The interrogatory 

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asked ADW to “identify” those with whom ADW had communicated about the 

lawsuit, but the interrogatory did not ask for the contents of the 

communications. Areizaga alleges that ADW communicated with the 

president of Bartos about the lawsuit, but ADW did not list Bartos in its 

response to the interrogatory. Still, ADW had already disclosed that it planned

to call the president of Bartos as a witness. Areizaga therefore did not prove

that any nondisclosure prevented him from “fully and fairly presenting his 

case.” Gov’t Fin. Servs., 62 F.3d at 773. Accordingly, relief was not warranted 

under Rule 60(b)(3). 

The district court also rejected the argument that the alleged threats 

warranted relief from judgment. The court held that there was no admissible 

evidence of threats because confidentiality protections for mediation applied to 

any threatening statements. Texas law protects statements made during 

mediation, with limited, enumerated, and inapplicable exceptions. TEX. CIV.

PRAC. & REM. CODE ANN. § 154.073. Areizaga does not identify any statutory 

exception. Instead, he argues that confidentiality for mediation should not 

apply because of the crime-fraud exception, and because ADW waived 

confidentiality by communicating with Areizaga’s employer about the 

mediation. He also suggests that the district court erred by implying that 

threats made during mediation are “substantive” to the mediation process and, 

thus, confidential. Areizaga’s only evidence was his own account of the 

statements.

Section 154.073 contains no clear exception for either crime-fraud or 

waiver. See PRAC. & REM. § 154.073. The crime-fraud exception applies to 

attorney-client privilege and work-product privilege. In re Grand Jury 

Subpoena, 419 F.3d 329, 335 (5th Cir. 2005). It is inapplicable here. In 

addition, even if there were a waiver exception under Section 154.073, it would 

not apply because nothing in the record indicates that ADW ever waived 

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confidentiality by telling Bartos about the alleged threats or the content of 

discussions in mediation.

The remaining question, then, is whether the alleged threats were 

covered by the confidentiality protections of Texas mediation law. Section 

154.073 is confined to “matters occurring during the ‘settlement process’” — in 

Areizaga’s words, what is “substantive.” In re Daley, 29 S.W.3d 915, 918 (Tex. 

App.—Beaumont 2000, orig. proceeding). One Texas court of appeals held that 

“[c]ommunications made during an alternative dispute resolution procedure 

are confidential, and may not be used as evidence.” Rabe v. Dillard’s, Inc., 214 

S.W.3d 767, 769 (Tex. App.—Dallas 2007, no pet.). Another court held that 

whether a party had physically left the mediation discussion “prior to its 

conclusion [and] without the permission of the mediator” was “not a matter 

related to the settlement process itself,” and thus that fact was not 

confidential. Daley, 29 S.W.3d at 918. Although there is no binding authority 

on the exact question before us, we are persuaded that the alleged threats here 

are more like the protected communications in Rabe than the non-protected 

physical act in Daley. The alleged threats are protected as confidential because 

they occurred within the confines of the structured mediation discussion. 

PRAC. & REM. § 154.073; Rabe, 214 S.W.3d at 769. 

Because Areizaga provided no competent evidence of threats to carry his 

burden, the district court did not err in finding the alleged threats to be 

confidential and inadmissible.

AFFIRMED.

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