FILED

United States Court of Appeals

Tenth Circuit

January 23, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TRANS-EXCHANGE CORPORATION;

M & M INVESTORS,

Plaintiffs–Appellants, No. 11-1154

v. (D.C. No. 1:86-CV-00064-CMA)

THE WORLD’S LARGEST PEARL

COMPANY, INC.; VICTOR BARBISH,

(D. Colorado)

Defendants–Appellees.

------------------------------

JOSEPH BONICELLI; PETER D.

HOFFMAN; THOMAS PHILLIPS;

JERRY HAAG; MRS. DELL GRAVES,

 Intervenors.

ORDER AND JUDGMENT*

Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.

After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
This is an appeal from the district court’s denial of Plaintiffs’ Federal Rules of

Civil Procedure Rule 60(b) motion for relief from an order partially granting a motion to

revive an earlier judgment. At stake is an interest in the sale proceeds of the largest pearl

in the world—the Pearl of Allah. We affirm the district court’s denial of the Rule 60(b)

motion.

Litigation surrounding this pearl has been ongoing for over twenty-five years. In

1985, the Central District of California entered a judgment in favor of Plaintiffs that

precluded Defendants from removing the pearl from the California court’s jurisdiction. 

In 1986, after finding that the pearl was apparently in Colorado, the California district

court ordered the United States Marshals to seize the pearl and deposit it into the registry

of the United States Court for the District of Colorado. Thereafter, the California district

court certified the California judgment for registration in the district of Colorado, and the

Colorado district court incorporated the California judgment and retained jurisdiction of

the pending enforcement of the California judgment.

After various third parties intervened in the Colorado case, the district court

presided over additional litigation regarding ownership interests in the pearl and

encouraged all parties involved to resolve the matter. In 1989, the Colorado district court

issued a final order that adopted the parties’ submitted stipulation regarding the pearl and

various ownership and priority rights in it, including Plaintiffs’ revised interest. Almost

twenty years later, since the pearl had still not been sold and therefore the judgments not

been enforced, Plaintiffs submitted a motion to revive the earlier judgment pursuant to

-2-
Colorado Rules of Civil Procedure Rule 54(h). The district court granted Appellant’s

motion as to the Colorado intervenors only. The district court held that because this final

judgment had been entered in 1985, the California parties were precluded from reviving

the California judgment because revival motions are subject to a twenty-year limitation

under Rule 54(h). 

Plaintiffs did not file an appeal of the district court’s revival motion. Almost one

year later, Plaintiffs filed a motion for relief from that same order pursuant to Federal

Rules of Civil Procedure Rule 60(b)(3) and (b)(6), arguing that Defendants had

misrepresented to the district court that the Colorado judgment was simply a registration

action. Plaintiffs essentially argued, as they argue here, that the California judgment was

incorporated into the Colorado judgment, and that the rights and obligations of the

California parties were relitigated and modified in the 1989 Colorado judgment. 

Plaintiffs therefore argued that any revival of the Colorado judgment should include a

revival of their claims. The district court denied their motion, holding that it had not

relied on Defendants’ alleged misrepresentation in its order partially granting the motion

to revive. 

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

abuse of discretion; we only grant such relief in exceptional circumstances. ClearOne

Commc’ns v. Bowers, 643 F.3d 735, 754 (10th Cir. 2011). “Parties seeking relief under

Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for

an appeal.” Cummings v. Gen. Motors Corp., 365 F.3d 944, 955 (10th Cir. 2004). 

-3-
Rule 60(b)(3) offers relief from a judgment based on fraud, misrepresentation, or

other misconduct by the adverse parties. A party requesting such relief must establish the

“alleged misconduct by clear and convincing evidence,” which is done by showing that

the opposing party “acted with an intent to deceive or defraud the court, by means of a

deliberately planned and carefully executed scheme.” Yapp v. Excel Corp., 186 F.3d

1222, 1231 (10th Cir. 1999) (internal quotations omitted). 

Rule 60(b)(6) offers relief for “any other reason that justifies relief.” “Rule

60(b)(6) relief is . . . difficult to attain and is appropriate only when it offends justice to

deny such relief. The denial of a 60(b)(6) motion will be reversed only if we find a

complete absence of a reasonable basis and are certain that the decision is wrong.” 

Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1293 (10th Cir. 2005) (internal

quotations, citations, and ellipses omitted). Additionally, a party “cannot simply throw in

subsection (6) without any new arguments and expect to obtain a new trial.” Id. 

While Plaintiffs may make a plausible argument that any revival of the Colorado

judgment should also have revived their interests and claims, because their interests in the

pearl were relitigated and indeed modified in the Colorado judgment, Plaintiffs’ brief

contains no argument relating to Rule 60(b) and the standards for relief under that rule. 

Plaintiffs simply argue the merits of the underlying judgment, ignoring the fact that an

appeal from the denial of Rule 60(b) relief “does not bring up the underlying judgment

for review.” Morris v. Adams-Millis Corp., 758 F.2d 1352, 1357 (10th Cir. 1985)

(quoting Browder v. Director, Dep’t of Corr. of Ill., 434 U.S. 257, 263 n.7 (1978)). 

-4-
Furthermore, “issues designated for review are lost if they are not actually argued in the

party’s brief.” Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992). 

In this appeal, Plaintiffs are “simply attempting to use Rule 60(b) as a substitute

for a timely appeal on the merits[,] and that is not permitted.” United States v. 31.63

Acres of Land, 840 F.2d 760, 762 (10th Cir. 1988). Any arguments they might have

made regarding their entitlement to relief under Rule 60(b) have been waived by their

failure to raise them on appeal. Since they appeal from the denial of their Rule 60(b)

motion and have waived any arguments regarding that issue, we AFFIRM the district

court’s ruling. 

ENTERED FOR THE COURT

Monroe G. McKay

Circuit Judge

-5-