KRAVITCH, Circuit Judge:
C.L. Taylor appeals from the district court's grant of appellee Texgas Corporation's Fed.R.Civ.P. 60(b) motion requesting that the court, on the basis of false testimony and newly discovered evidence, modify its earlier judgment. Because appellee has failed to prove fraud with clear and convincing evidence, and because it has not shown that it could not have produced the "newly discovered evidence" prior to the entry of judgment, we vacate the district court's modification of the earlier judgment.
C.L. Taylor was awarded back pay, unpaid overtime, and damages from Texgas Corporation ("Texgas") following a jury verdict that Texgas had dismissed him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. On appeal, this court determined, citing Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985), that Taylor also should have been awarded prospective relief in the form of reinstatement or front pay in order "to make [him] whole." Taylor v. Texgas Corp., No. 85-3305, slip op. at 3 (11th Cir. April 17, 1986), [790 F.2d 87 (Table)]. This court added, however, that on remand, the district court could consider the disability payments that Taylor had received from Texgas in determining the relief to which Taylor was entitled.
The district court held a hearing on the matter on June 10, 1987, at which Taylor was allowed to testify as to the amount of disability payments he had received. Because the hearing had been noticed as "oral argument," Texgas initially objected to the introduction of evidence, but subsequently withdrew the objection. It declined, however, to cross examine Mr. Taylor. Following Taylor's testimony, the court scheduled another hearing on the relief issue and
The district court, on July 1, ordered Texgas to reinstate Taylor and pay him the full salary he would have earned from the date of judgment to the date of reinstatement, less the $4,042.40 in disability payments that he had received from Texgas following his discharge. Fifteen days later, appellee filed a motion for relief under Rule 60 of the Federal Rules of Civil Procedure. Texgas contended that the district court's order granting reinstatement and damages should be amended on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing,
The district court, after a hearing, found that in addition to the disability benefits, Taylor had received $3,509.82 in pension payments from Texgas's pension plan, and that he had earned $3,507.24 from other unrelated jobs during the period after his discharge from Texgas. Accordingly, the court modified its prior judgment by deducting the total of those payments, $7,017.06, from the back wages that Texgas owed to Taylor. The court, however, never found that Taylor had committed fraud, although it determined that he had been "less than candid;" nor did it find that Texgas could not have discovered this evidence earlier through the exercise of due diligence.
At the time the court entered its July 1 order granting Taylor reinstatement, it retained jurisdiction over the case to award Taylor attorney's fees and costs. The court's subsequent order of August 29, modifying the July 1 order, did not dispose of the attorney's fee issue. Taylor filed a timely notice of appeal from the August 29 order. This court sua sponte raised the question of whether the August 29 order was a final and appealable order as required for our jurisdiction under 28 U.S.C. § 1291,
This circuit follows the rule that "[t]he finality of an order, which determines all the issues except for the award of attorneys' fees `depends on the circumstances of each case.'" C.I.T. Corp. v. Nelson, 743 F.2d 774, 775 (11th Cir.1984) (footnote omitted) (quoting McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984)). The court in McQurter reasoned:
724 F.2d at 882 (quoting Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983)).
An award of attorney's fees under the ADEA is controlled by 29 U.S.C. §§ 216(b), 626(b). See Hedrick v. Hercules, Inc., 658 F.2d 1088, 1096-97 (5th Cir. Unit B 1981).
The Supreme Court's reasoning in White v. New Hampshire, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) supports our interpretation. In White the Court held that a motion for attorney's fees under 42 U.S.C. § 1988 was not properly categorized as a Rule 59(e)
B. Whether relief should have been granted under Rule 60(b)
"[T]he decision whether to grant a motion to amend a judgment rests within the discretion of the trial judge and will not be overturned absent an abuse of discretion." Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 611 (11th Cir.1987). Here, Taylor argues that the district court either employed an improper legal standard or abused its discretion in granting relief under Fed.R.Civ.P. 60(b), as the evidence supports neither a finding that Taylor gave untruthful testimony nor that Taylor's receipt of pension benefits constituted "newly discovered evidence."
Rule 60(b) provides in part:
It is unclear from the district judge's order which provision of Rule 60(b) he relied upon in amending the judgment. Although he found that Taylor had been "less than candid," he made no specific finding under either Rule 60(b)(2) or 60(b)(3). Moreover, after reviewing the record, we conclude
First, there exists no basis for granting relief to Texgas under Rule 60(b)(2). To prove a basis for relief under this rule, a party must demonstrate that (1) the evidence is newly discovered since the judgment was entered; (2) due diligence on the part of the movant to discover the new evidence has been exercised; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that is likely to produce a new outcome if the case were retried, or is such that would require the judgment to be amended. See Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir.1987); Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir.1975), rev'd on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976);
Rather than indicating that Taylor's receipt of pension payments from appellee is "new evidence," the record contains uncontroverted evidence that shows that Texgas knew that it was paying Taylor pension benefits months before the June hearings regarding Taylor's receipt of disability payments. Texgas approved Taylor's pension request on January 3, 1986, and mailed a check to Taylor on March 14, 1986. "Unexcused failure to produce the relevant evidence at the original trial can be sufficient, without more, to warrant denial of a rule 60(b) motion." Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 391 (5th Cir.1977). Moreover, evidence cannot be "newly discovered" under Rule 60 if it is in the possession of the moving party or that party's attorney prior to the entry of judgment. See United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir.) (evidence is not newly discovered where defendant's attorney admitted that he knew of the evidence prior to the granting of summary judgment and could give no plausible explanation as to why the evidence was not produced earlier), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983).
Nor has Texgas alleged a sufficient claim under Rule 60(b)(3). "One who asserts that an adverse party has obtained a verdict through fraud, misrepresentation or other misconduct has the burden of proving the assertion by clear and convincing evidence." Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978). Moreover, the movant must show that the conduct complained of "prevented the moving party from fully and fairly presenting his case." Harre v. A.H. Robins Co., 750 F.2d 1501, 1503 (11th Cir.1985) (quoting Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.1983)). Here, Texgas alleges that Taylor was less than truthful at the June 10 hearing when he failed to tell the court that he had received pension benefits from Texgas. However, the hearing was called specifically to deal with disability benefits, and the only questions asked of Taylor dealt solely with disability benefits. Taylor's attorney asked him, "Since March 5, 1985, you have not received any other disability benefits, have you?" and Taylor responded, "No, sir." Following this direct examination of Taylor, counsel for Texgas declined to cross examine Taylor. Nor did Texgas afford itself of the opportunity it was given
We conclude that the district court abused its discretion. Accordingly, the district court's order of August 29, 1986, modifying its July 1 order awarding reinstatement and damages, is VACATED and the July 1 order is reinstated in full. Appellant's motion for attorney's fees relating to this appeal is GRANTED; we REMAND this case to the district court for determination of an appropriate fee.