* Circuit Judge of the Third Circuit Court of Appeals, sitting

by designation. 

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-10753

 

PENELOPE Y. LARY, Temporary Administrator of the Estate of

David H. Constantine

Plaintiff-Appellant,

 v.

DALLAS AREA RAPID TRANSIT

Defendant-Appellee.

PENELOPE Y. LARY, Temporary Administrator of the Estate of 

David H. Constantine

Plaintiff-Appellant,

v. 

VICTOR BURKE; ROGER SNOBLE

Defendants-Appellees.

 

Appeal from the United States District Court

for the Northern District of Texas

(3:98-CV-779-R)

 

March 15, 2002

Before ALDISERT*, DAVIS, and PARKER, Circuit Judges.
** 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this opinion should not be published and is not precedent except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. 47.4.

2

PER CURIAM**:

Penelope Y. Lary, temporary administrator of the estate of

David H. Constantine, appeals from a denial of her motion for

relief from judgment under Rule 60, Federal Rules of Civil

Procedure. Her appeal requires us to decide whether the district

court abused its discretion when it denied: (1) her motion under

Rule 60(b)(2), in which she asserted the discovery of new

evidence, and (2) her motion under Rule 60(b)(3), in which she

asserted that Appellee Dallas Area Rapid Transit (“DART”) failed

to fully answer interrogatories. We review these questions under

an abuse of discretion standard. Gov’t Fin. Serv. One, Ltd.

P’ship v. Peyton Place, Inc., 62 F.3d 767, 770 (5th Cir. 1995).

Appellant’s decedent, Constantine, filed an action in Texas

State Court alleging wrongful termination of employment from DART

in violation of an alleged employment agreement, as well as

wrongful discharge in violation of the Texas Whistleblower Act,

Texas Government Code §§ 554 et seq. He later amended his

pleading to add a free speech claim under the First Amendment. 

DART removed the action to federal court. Constantine filed a

second lawsuit asserting federal claims against individual

defendants, who then removed those claims to federal court as
1. This case, on appeal to us at No. 99-10134, was dismissed for

lack of jurisdiction.

3

well. The two actions were later consolidated. Constantine died

and Appellant was substituted for Constantine as plaintiff.

The district court granted the defendants’ summary judgment

motion. On a prior appeal to us, we dismissed this action1. 

Lary then filed a Rule 60(b) motion, which the district court

similarly denied. Thereafter, she filed a motion for

reconsideration which was also denied. This appeal followed.

It is important to emphasize at the outset that this is not

an appeal from the earlier granting of summary judgment, but an

appeal from a denial of a Rule 60(b) motion. We review such

holdings for abuse of discretion. 

I.

Appellant’s motion was based on the existence of “newly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b).” 

FED. R. CIV. P. 60(b)(2). To succeed on a motion brought under

Rule 60(b)(2), “the movant must demonstrate (1) that it exercised

due diligence in obtaining the information and (2) ‘the evidence

is material and controlling and clearly would have produced a

different result if presented before the original judgment.’” 

Gov’t Fin. Serv., 62 F.3d at 771 (citing New Hampshire Ins. Co.

v. Martech USA, Inc., 993 F.2d 1195, 1200-1201 (5th Cir. 1993)). 
4

As in the previous appeal before us, the gravamen of the

complaint revolves around a letter David Constantine wrote to the

DART Board of Directors on April 22, 1996. This letter informed

the DART Board that it was “paying more funds than necessary to

ensure MBE participation which would be an illegal set aside

program.” Appellant’s Brief at 4. Constantine’s letter stated

that “[i]n both awards of contracts to Koch and La Gloria, the

proposed MBE transporter is PNI Distribution, owned by Pettis

Norman, which is the fuel supplier for the ATE contract by which

ATE is allowed to count 100% of the fuel cost as MBE

participation.” Appellant’s Record Excerpts, Tab 4. He charged

“ . . . that [DART’s] highest level staff allows these

irregularities to occur within the Authority.” Id. at 5. DART

Procurement Regulations require competitive bidding for

contracts, the violation of which is a violation of law. Id.

On April 30, 1996, Constantine was placed on administrative

leave, and on June 7, 1996, he was terminated. Defendants’

Motion for Summary Judgment, P3, R. Vol. 2, p. 15. Constantine

sued DART in state court in 1996 for wrongful termination in

violation of an alleged employment agreement, and wrongful

discharge in violation of the Texas Whistleblower Act, Texas

Government Code § 554 et seq. R. Vol. 4, pp. 7-11. He later

added a First Amendment claim. DART removed the case to federal

court, and it was consolidated with his claims against Victor
5

Burke and Roger Snoble. When Constantine died in October 1998,

Lary was substituted as Plaintiff.

In November 1998, Appellees moved for summary judgment,

which was granted on December 3, 1998. While the first appeal

was pending, counsel for Constantine learned that DART’s internal

auditors investigated a bus fuel contract in 1994 and allegedly

found illegalities. Appellant’s Brief at 3. John Redmon, the

auditor who found the alleged illegalities, was not specifically

identified in any interrogatory. 

During late 1993 or early 1994, Redmon was instructed by his

supervisor, Fred Navarette, to investigate a DART bus fuel

contract. The contract was between DART and a company owned by

Pettis Norman, referred to as the ATE Contract. Redmon collected

information and documents, interviewed Mr. Norman, and created

work papers. He concluded that Norman was a broker, and his role

as a broker violated DART Procurement Regulations and Texas law. 

Affidavit of John Redmon, R. Vol. 3, p. 421. 

The answers by DART, Snoble, and Burke to Constantine’s

interrogatories all failed to specifically identify Redmon,

though they did identify Navarette, Redmon’s supervisor. 

Constantine sought relief under Rule 60(b), asserting that this

new information was material and controlling, and would have

produced a different result had it been revealed previously. 

DART responded that Navarette’s name and address were included in

its reply to interrogatories as a person with knowledge of DART’s
6

interrogatory answers. The court granted the defendant’s motion

for summary judgment, and dismissed each of his claims. 

Appellant’s Record Excerpt, Tab 5. 

Appellant argues that had Redmon been specifically

identified in the interrogatory responses, in addition to

Navarette, this information would have had a bearing on several

elements of a whistleblower claim: good faith, violation of law,

and retaliation. Appellant fails, however, to establish that she

expended due diligence in locating this new evidence, and in a

sense, defeats her argument by conceding that DART specifically

identified Navarette by name and address.

Accordingly, we are satisfied that the district court did

not abuse its discretion in making a determination that had

Appellant exercised due diligence, she would have discovered the

necessary information without the Redmon affidavit. Finally,

such an analysis may be altogether irrelevant. The evidence

presented appears to suggest that Constantine’s dismissal had

less to do with the contents of the letter and more to do with

the fact that he failed to follow the chain of command in writing

the letter in the first place. 

II.

In her Rule 60(b)(3) motion, Appellant also argues that she

has discovered new evidence which DART fraudulently withheld: 

In this case, summary judgments (sic) was unfairly

obtained and Appellees are guilty of the type of

misconduct contemplated by Rule 60(b)(3) because they
7

failed to identify of (sic) John Redmon as a person

with knowledge of relevant facts. As in the Rozier [v.

Ford Motor Co., 573 F. 2d 1332, (5th Cir. 1979)] case,

Redmon’s identification was clearly called for by a

fair reading of the interrogatory asking for the

identities of persons with knowledge of relevant facts. 

The district court here also failed to provide any

basis for its denial of Plaintiff’s Motion for Relief

From Judgment.

Appellant’s Brief at 24.

Allegations of fraud and misconduct must be supported by

clear and convincing evidence. Gov’t Fin. Serv., 62 F.3d at 772. 

For reasons heretofore stated, we are satisfied that Appellant

did not meet this high burden, and accordingly, the district

court acted within the proper exercise of its discretion.

 * * * * *

We have considered all the allegations of the parties and

conclude that no further discussion is necessary.

The judgment is AFFIRMED.