* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 16 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JAMES DALE KNIGHT,

Plaintiff-Appellant,

v. NINA R. KNIGHT; JANIECE I. KNIGHT; WILLIAM J. KNIGHT; MARGRET KNIGHT,

Defendants-Appellees. No. 04-8000 (D.C. No. 02-CV-1050-ABJ)

(D. Wyo.)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 This was the second case plaintiff filed in the Wyo ming federal district

court against these defendants seeking title to the real property in question. The prior action, case No. 02-CV-1017-J, was also dismissed. See R. doc. 18, at 3 n.1. -2- Plaintiff James Dale Knight, proceeding pro se, app eals the order denying his motion for post-judgment relief in this case se eking adjudication of ownership of real property in Wyoming and Alaska. We affirm.
Motion to Dismiss As a preliminary matter, we deny defendants’ motion to dismiss the appeal on the ground that this court did not grant permiss ion for the appeal. The district court entered a final judgment. Consequently, plai ntiff was not required to obtain permission to appeal, and this court has jurisdicti on. 28 U.S.C. § 1291.
Merits The district court granted defendants’ motion to di smiss the complaint because plaintiff’s claims to the real property in question were based on oral agreements that were not to be performed within one year. The court held that the Wyoming statute of frauds, Wyo. Stat. Ann. § 1-23-1 05, rendered the alleged agreements void and unenforceable. Accordingly, th e court dismissed plaintiff’s case for failure to state a claim upon which relief can be granted. 1 Almost a year later, plaintiff filed his motion to reconsider under Fed. R. Civ. P. 60(b)(2) & (3), on the grounds of newly dis covered evidence and-3-

misrepresentation or other misconduct of an adverse party. “We review a district court’s denial of a Rule 60(b) motion for an abuse of discretion.” Cummings v. Gen. Motors Corp. , 365 F.3d 944, 954 (10th Cir. 2004). The district court’s ruling will be upheld unless it represents “a defin ite, clear or unmistakable error.” Id. at 955. Relief will be granted under Rule 60(b) o nly in exceptional circumstances. Id. at 954. The newly discovered evidence plaintiff claims enti tles him to relief is “escrow laws and events presented” in a quiet-title action in an Alaska state court. Reply Br. at 5. It is clear that this evidence exi sted prior to the dismissal. Even if plaintiff asserts he was unaware of it before hi s case was dismissed, he has not made the requisite showing that he had made a dilig ent attempt to discover it before dismissal. See Webber v. Mefford , 43 F.3d 1340, 1345 (10th Cir. 1994) (stating evidence available to plaintiffs before ju dgment would not support reconsideration where there was no showing that cou nsel made diligent yet unsuccessful attempt to discover it). Moreover, pl aintiff has not demonstrated how this evidence warrants relief from dismissal. See Computerized Thermal Imaging, Inc. v. Bloomberg, L.P. , 312 F.3d 1292, 1300 (10th Cir. 2002). Consequently, we find no abuse of discretion in den ying the motion to reconsider on this ground.-4-

Plaintiff’s second ground to set aside the judgmentis misrepresentation or misconduct by an adverse party. He apparently reas serts his claim that defendants fraudulently deprived him of his interest in the su bject real property. He also complains that the district court did not address h is fraud claim in its order of dismissal. These arguments challenge the dismissal order and should have been brought in a direct appeal. “A Rule 60(b) motion i s not intended to be a substitute for a direct appeal.” Servants of Paraclete v. Does , 204 F.3d 1005, 1009 (10th Cir. 2000). In addition, plaintiff has failed to allege that “the challenged behavior . . . substantially . . . inter fered with [his] ability fully and fairly to prepare for and proceed at trial.” Cummings , 365 F.3d at 955. Therefore, we hold that the district court did not abuse its discretion in denying reconsideration on this ground. The judgment of the district court is AFFIRMED. De fendants’ motion to dismiss the appeal is DENIED. The mandate shall is sue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge