*

This order and judgment is not binding precedent except under the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.

FILED

United States Court of Appeals

Tenth Circuit

March 22, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AUBREY JONES,

Plaintiff - Appellant, No. 09-6228

v. (W.D. Oklahoma)

FERGUSON PONTIAC BUICK GMC,

INC.; BOBBY HARE, Individually,

Defendants - Appellees.

(D.C. No. 5:07-CV-00834-HE)

ORDER AND JUDGMENT*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

After examining the briefs and appellate record, this court 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). The case is

therefore ordered submitted without oral argument.

Appellate Case: 09-6228 Document: 01018388256 Date Filed: 03/22/2010 Page: 1 
1

Jones’s assertion on appeal that he is entitled to relief under Rule 60(b)(3)

is utterly frivolous. 

Rule 60(b)(3) allows a court to relieve a party from a final judgment

based on “fraud . . . , misrepresentation, or other misconduct of an

adverse party.” Regardless of the specific form of the allegation, the

party relying on Rule 60(b)(3) must, by adequate proof, clearly

substantiate the claim of fraud, misconduct or misrepresentation. In

other words, they must show clear and convincing proof of fraud,

misrepresentation, or misconduct. Moreover, the challenged

behavior must substantially have interfered with the aggrieved

party’s ability fully and fairly to prepare for and proceed at trial.

Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1290 (10th Cir. 2005). The

filings attached to Jones’s motion to reopen do not come anywhere close to

satisfying this heavy burden.

-2-

Aubrey Jones, appearing pro se, appeals the district court’s denial of his

Federal Rule of Civil Procedure 60(b) request for relief from judgment. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

After Jones reached a settlement in his employment discrimination case, the

district court dismissed the matter with prejudice on November 27, 2008. 

Approximately eleven months later, on September 21, 2009, Jones moved to

reopen the case so he could pursue a claim pursuant to the Lilly Ledbetter Fair

Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009). Noting that the only

provision of Federal Rule of Civil Procedure 60(b) potentially applicable was

Rule 60(b)(6),1

 the district court denied relief on the basis that a simple change in

the law was not grounds for relief in this particular case. See Collins v. City of

Wichita, 254 F.2d 837, 839 (10th Cir. 1958) (holding that in the usual case “[a]

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-3-

change in the law . . . is not such an extraordinary circumstance which justifies”

relief under Rule 60(b)).

This court reviews the district court’s denial of a Rule 60(b) motion for

abuse of discretion, keeping in mind that Rule 60(b) is extraordinary relief that

may only be granted in exceptional circumstances. Beugler v. Burlington N. &

Santa Fe Ry. Co., 490 F.3d 1224, 1229 (10th Cir. 2007). “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). “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) (citation and quotations omitted).

With the appropriate standard in mind, this court has reviewed the parties’

appellate filings, the district court’s order denying relief from judgment, and the

entire record on appeal. For those reasons discussed by the district court, the

interests of justice do not favor granting Jones relief from judgment. 

Appellate Case: 09-6228 Document: 01018388256 Date Filed: 03/22/2010 Page: 3 
-4-

Accordingly, the order of the district court denying Jones’s request for relief from

judgment is hereby AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

Appellate Case: 09-6228 Document: 01018388256 Date Filed: 03/22/2010 Page: 4