### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-10562 Summary Calendar

CHRISTOPHER MICHAEL WANKEN, Plaintiff-Appellant
v. JOHN DWIGHT WANKEN; RAYMOND JAMES FINANCIAL SERVICES INC, Defendants-Appellees

Appeals from the United States District Court for the Northern District of Texas USDC 3:10-CV-556

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Pro se Plaintiff-Appellant C h ri s t o p h e r W a n k en appeals the district court’s order denying his motion for relief under Federal Rule of Civil Procedure 60(b)(6). Wanken’s Rule 60(b)(6) motion seeks relief from a judgme n t c onfirming

a n a d v erse arbitration award. Wanken claims that the district court ignored

new evidence that demonstrates Defendants-Appellees John Wanken a n d U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 11 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-10562 Document: 00512140997 Page: 1 Date Filed: 02/11/2013No. 12-10562

Raymon d J ames Financial Services, Inc. gave perjured testimony and fraudulently procured an award in the underlying arbitration proceeding. For the following reasons, the district court’s order is AFFIRMED.

I. FACTUAL AND PROCEDURAL BACKGROUND The factual background of this case has been extensively documented both in this court and the district c o u r t

. Se e Wanken v. Wanken , 451 F. App’x 319, 320-21 (5th Cir. 2011). F o r p urposes of Wanken’s Rule 60(b)(6) motion, it is sufficient to observe that this case arises out of an adverse arbitration a w a r d and Wanken’s subsequent motion to vacate and modify the award pursuant to 9 U.S.C. § 10(a). In response to Wanken’s motion, John Wanken and Raymond James Financial Services Inc. (collectively “Appellees”) filed motions to dismiss. On February 7, 2011, the d i s t r i ct court accepted a magistrate judge’s findings and recommendations that Appellees’ motions to dismiss be converted to crossmotions to confirm the arbitration award and that those motions be granted. Wanken appealed. On September 29, 2 0 1 1 , t his court issued an opinion affirming the district court’s judgment. Thereafter, the Supreme Court denied Wanken’s petition for certiorari. Wanken th e n f

i led a motion for relief under Rule 60(b)(6). The district court did not request a response from Appellees and denied Wanken’s motion on April 30, 2012. Wanken timely filed a notice of appeal on May 25, 2012, and an amended notice of appeal on May 29, 2012. II. STANDARD OF REVIEW We review a district court’s denial of a Rule 60(b) motion for an abuse of discretion. See Warfield v. Byron , 436 F.3d 551, 555 (5th Cir. 2006). Pursuant to Rule 60(b)(6), a court may set aside a judgment for any reason justifying relief that is not otherwise provided for under Rule 60. Lowry Dev., L.L.C. v. Groves & Assocs. Ins., Inc. , 690 F.3d 382, 386 n. 1 2 ( 5 t h C i r
. 2012). Relief under Rule 60(b)(6) “will be granted only if extraordinary circumstances are present.” Batts

2 Case: 12-10562 Document: 00512140997 Page: 2 Date Filed: 02/11/2013No. 12-10562

v. Tow-Motor Forklift Co. , 66 F.3d 743, 747 (5th Cir. 1995) (citation and internal quotation marks omitted). III. DISCUSSION Wanken’s Rule 60(b ) ( 6 ) m o tion primarily argues that the district court abused its discretion in not considering new evidence contained in a final report (“Report”) issued by the Texas Workforce Comm i ssion (“TWC”). According to 1 Wanken, he first saw the Report on March 1 6, 2012. The Report allegedly demonstrates that Appellees offered perjured testimony and procured an award in the underlying arbitration proceeding by fraud. We conclude that the district court did not abuse its discretion in denying Wanken’s Rule 60(b)(6) motion. 2 First, although repeatedly as s erting that the Report “clearly demonstrate[s] that [Appellees] contradicted all of [their]

. . . ar b i t ration testimony

. . . on every material issue that was decided at arbitration,” Wanken

In wh at this cour t cons tru es as a mis tak en att em pt to rais e the st ak es of this app eal, 1 Wank en for the fir st tim e allege s that Jo h n W a n k e n w a s res pons ible for the dea th of John Wank en’s wi fe and Wank en ’s mo ther , Vick i Wank en. Wank en fur ther ass ert s that John Wank en im per so nate d Wank en and acc es se d his em ail rec ord s and bank acc ount s. Asid e fr om being conc lus ory and inap pr opr iate in wh at is, for a l l inte nts and pur pos es , a sui t agains t enf orc em ent of an arbit rat ion a w a r d , suc h char ges als o we re not rais ed bef ore the dis tri ct cour t, and this courtdecl ines now to cons ide r them

. See Va rna do v. Lynaugh , 920 F.2d320, 321 (5t h Cir

. 1991) ( perc uriam ).
The dis tri ct cour t’s deni al of Wank en’s mo tio n is als o aff irm ed to the exten t he se ek s 2

rec ons ide rat ion of

argume nts previo usl y reject ed by both the dis tri ct co urtand this court on app eal. For exam ple , Wank e n’s brie f st ates that App elle es cont rad ict ed thei r arbit rat ion tes tim ony dur ing inves tigat ions by the TWC. This cont enti on is ide ntic al to the one Wank en pr evious ly rais ed. Wan ken , 451 F. App ’x at 321- 22 (“ Sp ecif ical ly, [Wa nk en] argues that John Wank en gave fr audul ent t e s t i m ony dur ing the arbit rat ion pr oce edi ngs and conc ealed doc ume nts to deny him the opp ort unity to pr es ent his clai ms full y to the pane l.” ). We rejec ted that argum ent as unsu pp ort ed by the rec ord

. Id. at 322. We obs erved that the allege dly per jured tes tim ony rela ted to wh ethe r Wank en wa s an em plo yee or an inde pend ent cont rac tor of John Wank en. Id. This tes tim ony w a s i r r elevant , how ever, beca use the iss ue in the arbit rat ion pr oce edi ng wa s wh ethe r Wank en wa s a par tner at Beaco n Financ ial, a fir m ow ned by John Wank en and ope rat ed as an inde pend ent branc h off ice of Raymo nd Jam es Financ ial Ser vices , Inc. Id. at 320, 322. “Whe ther Wank en wa s an em plo yee or inde pend ent cont rac tor is not rele vant to wh ethe r he wa s a par tner—and John Wank en has cons ist entl y mai ntain ed thatWa nk en wa s not a p art ner at Beaco n Fin ancia l.” Id. at 322

. 3 Case: 12-10562 Document: 00512140997 Page: 3 Date Filed: 02/11/2013No. 12-10562

nowhere elaborates on either the substance of the t e stimony or the material issues at stake. Wanken’s brief is f i lled with similar conclusory statements. Wholly unaddressed i s o u r prior observation that the issue during arbitration “was whether Wanken was a partner at Beacon Financial.” Wank e n , 4 5 1 F

. App’x at 322. Equally unexplained is how the Report would show that Appellees colluded and conspired to procure the arbitration award by fraud. Wanken does not compare Appellees’ testimony during the ar b i t ration and in the Report. Such omissions prevent Wanken from demonstrating the kind of “extraordinary circumstances” necessary for granting re l i e f under Rule 60(b)(6). We thus agree 3 with the district court’s conclusion that the Report is “simply ano t h er attempt at the same argument—that Defendant John Wanken took allegedly inconsistent positions with the arbitration panel and the TWC.” This argument

was already rejected on appeal, and Wanken has failed to offer anything new to contradict that result. Second, aside from his own conclusory statements describing the contents of the Repor t , W a n k e n has not offered the Report in support of his motion. W a nken explains his decision not to submit the Report as compelled by Tex a s law. According to W a n k e n , the TWC will not disclose the Report without a formal court order. This statement is confusing given that Wanken appears to be in possession of the Report. Moreover, Wanken does not cite to any statute prohibiting such a disclosure. Wanken cites TWC Rule 13, but that rule does not contain such a prohibition. See 40 Tex. Admin. Code § 815.113. Wanken

Altho ugh Wank en’s mo tio n is brou ght unde r Rule 60(b )( 6), his r e l i a nce on the 3 pr evious ly unavailab le Repo rt res em bles a mo tio n brou ght unde r Rule 60(b )( 2). Rule 60(b )( 2) pr ovi d e s f

o r r e l ief bas ed on “new ly dis cover ed evide nce. ” Go lds tein v. MCI Wor ldCom , 340 F.3d 238, 257 (5t h Cir. 2003)

. We have “co nsi st entl y held that reli ef unde r 60(b )( 6) is mut ually exclus ive fr om reli ef under se cti ons (1)- (5) .” He sl ing v. CSX Tra nsp ., Inc. , 396 F.3d 632, 643 (5t h Cir. 2005)

. In any event , Wank en doe s not rely on Rule 60(b )( 2) and reli ef ther eund er wo uld be pr eclu ded by Wank en’s fai lure to sho w how t h e e v i d e n c e “w ould have pr oduc ed a dif fer ent res ult if pr es ent bef ore t he origi nal judgm ent. ” G old stei n , 340 F.3dat 257

.

4 Case: 12-10562 Document: 00512140997 Page: 4 Date Filed: 02/11/2013No. 12-10562

generally points t o section 815 of the Texas Administrative Code as governing disclosure of the Report, but again does not point to any specific provision. The absence of a statut o ry basis for Wanken’s decision not to disclose the Report exacerbates the omissions already discussed. Third, we reject Wank e n ’ s c haracterization of the district court as willfully closing its eyes to evidence critical to Wanken’s motion. Wanken described the district court as stating that “it could not care less about the evidence—and that the evidence was n o t g oing to change its mind, no matter what the evidence showed.” That is incorrect. The district court did not state that it would remain unmoved regardless of what the evidence might show. Rather, Wanken failed to describe anything i n t h e Report that would alter the outcome of the district court’s original decision to confirm the arbitration award. The district court also relied on our prior holding that even if evidence like the Report showed inconsistencies between Appellees’ testim onies, such contradictions would be irrelevant in light of the statement’s failure to relate the evidence to Wanken’s purported s t a t u s as a partner at Beacon Financial. As we previously held,

“ [ e ]ven assuming, however, that John Wanken did take inconsistent positi o n s

. . . this particular issue had no beari n g o n t h e arbitration proceedings.” Wanken , 451 F. App’x at 322. We conclude that Wanken’s Rule 60(b) ( 6 ) motion is for all intents and
purposes an attempt to relitigate issues addressed in our prior opinion affirming the district court’s confirmation of the underlying arbitration award. Wanken’s allegations are conclusory and his d escription of the Report nonexistent. Mindful that our review of the district court’s judgment is for abuse of discretion, we find that Wanken’s motion fails to satisfy Rule 60(b)(6)’s high burden. IV. CONCLUSION The district court’s order denying Wanken’s Rule 60(b)(6) mo t i o n i s AFFIRMED.

5 Case: 12-10562 Document: 00512140997 Page: 5 Date Filed: 02/11/2013