Halliburton Energy Services, Inc. v. NL Industries (618 F. Supp. 2d 614, 2009)

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

Halliburton — Halliburton Energy Services, Inc. (“HESI”) and DII Industries, LLC (“DII”) — moves under Federal Rule of Civil Procedure 60(b) for relief from this court’s order confirming the awards resulting from the arbitration with the Tremont Parties — TRE Holding Corporation (“TRE Holding”), TRE Management Company (“TRE Management”), NL Industries, Inc. (“NL”), and Tremont LLC (“Tremont”) — and from the final judgment entered on the claims resolved at the arbitration. (Docket Entry No. 341). Halliburton has also moved for discovery relating to its request for relief from judgment. (Docket Entry No. 342). The Tremont Parties oppose both motions. (Docket Entry No. 350). Also pending are Halliburton’s motion for a protective order on postjudgment discovery into Halliburton’s assets, (Docket Entry No. 304), and the Tremont Parties’ cross-motion for an order preventing Halliburton from transferring or dissipating assets, (Docket Entry No. 309).

Based on the motions, the responses, the record, and the applicable law, this court denies Halliburton’s motion for relief under Rule 60(b) and its related motion for discovery. This court also denies the Tremont Parties’ motion for an order preventing Halliburton from transferring or dissipating any assets and grants Halliburton’s motion for a protective order. The reasons are set out in detail below.

1. Background

The factual and procedural background of this case has been described in detail in this court’s previous opinions and orders, including those issued in July 2006, March 2008, July 2008, and August 2008. Only the background relevant to the pending motions resolved by this opinion is summarized here.

On March 31, 2008, this court entered a Memorandum and Opinion confirming the two awards resulting from the arbitration between Halliburton and the Tremont Parties (the “Confirmation Order”). (Docket Entry No. 239). The arbitration awards allocated responsibility between Halliburton and the Tremont Parties for past and future costs of investigating and remediating environmental contamination at a site near Magnet Cove and Malvern, Arkansas (the “Site”). The arbitration panel concluded that Halliburton, rather than the Tremont Parties, was responsible for the costs.

In allocating the costs, the panel considered whether the Site constituted “surplus property” excluded from the transfer of petroleum services business assets and liabilities to Halliburton’s predecessor. In 1988, NL entered into a series of transactions under a restructuring plan (the “1988 Plan”), through which NL spun off its petroleum services business and transferred it to a separate entity known as Baroid Corporation (“Old Baroid”). In 1990, pursuant to another restructuring plan effective August 31, 1990 (the “1990 Plan”), Old Baroid split the titanium and bentonite business from the “Petroleum Services Business,” defined as petroleum services operations that included “Petroleum Services Assets” and “Petroleum Services Obligations.” Old Baroid retained the titanium and bentonite business, spun off the Petroleum Services Business, and transferred it to a company named New Baroid. Under the 1990 Plan, a subsidiary of Old Baroid ultimately retained the titanium and bentonite business and New Baroid received the Petroleum Services Business. New Baroid is a predecessor of Halliburton. Old Baroid is a predecessor of the Tremont Parties.

The terms “surplus real property” and “Mining property, Malvern, Arkansas” were important in interpreting the 1990 Plan. Exhibit A to the 1990 Plan defined “Assets Which Shall Not Constitute ‘Petroleum Services Assets.’ ” Exhibit A listed “surplus real property and related improvements” as assets excluded from the Petroleum Services Assets transferred as part of the Petroleum Services Business to New Baroid. Among those “surplus” real properties was “Mining property, Malvern, Arkansas.” The panel closely examined the 1990 Plan and the surrounding circumstances to determine the parties’ intent in transferring property and liabilities under the 1990 Plan, the ownership of the property transferred, and the indemnification obligations associated with the property. The panel allocated the costs associated with the Site to Halliburton. This court confirmed the arbitration awards in its Confirmation Order.

On July 2, 2008, this court entered final judgment under Federal Rule of Civil Procedure 54(b) on the claims resolved in the arbitration (the “Partial Final Judgment”). (Docket Entry No. 277). Halliburton appealed the Confirmation Order and the Partial Final Judgment. (Docket Entry No. 286). This court entered an order staying the monetary portion of the Partial Final Judgment, conditioned on Halliburton posting a supersedeas bond, and denying Halliburton’s request to stay the nonmonetary portion of the judgment. (Docket Entry No. 291). Halliburton subsequently filed its supersedeas bond. (Docket Entry No. 293). On July 17, 2008, Halliburton filed a motion for new trial or to alter or amend the judgment. (Docket Entry No. 295). This court denied that motion. (Docket Entry No. 303).

On Friday, January 2, 2009, Halliburton filed the instant motion for relief from judgment (the “Rule 60 motion”) and its motion for discovery. (Docket Entry Nos. 341, 342). Oral argument in the Fifth Circuit on Halliburton’s appeal of the Confirmation Order and the Partial Final Judgment was set for Tuesday, January 6, 2009. (Docket Entry No. 341 at 7). On the day before oral argument, Halliburton filed a motion in the Fifth Circuit to stay the appeal, or in the alternative, to stay issuance of an opinion, and for limited remand to allow this court to consider the Rule 60 motion. Halliburton Energy Servs., Inc. v. NL Indus. Inc., 306 Fed. Appx. 843 (5th Cir.2009) (per curiam) (unpublished). The Fifth Circuit denied the motion to stay the appeal and, the day after the argument, affirmed this court’s judgment. See id. The Fifth Circuit “expressed] no view on the merits of the [Rule 60 motion],” ceded jurisdiction, and stated that this court “now has whatever jurisdiction it would have had, absent an appeal, to consider post-judgment motions.” Id. (citations omitted).

In its Rule 60 motion, Halliburton requests relief from judgment under Rule 60(b)(2), (3), (5), and (6). The basis for Halliburton’s motion is its recent discovery of documents in its own files that it claims conclusively establish a key issue determined in the arbitration. (See Docket Entry No. 341 at 6-7). Halliburton claims that it “has discovered numerous business records created by and/or for the Tremont Parties that specifically establish which portions of the Site were considered to be ‘surplus real property’ that were transferred to the Tremont Parties.” (Id. at 7). Halliburton acknowledges that it had these documents in its own files. (See id. at 28-30). But Halliburton asserts that these documents may have also been in the possession of the Tremont Parties, and that they failed to produce these documents during arbitration. (Id. at 7). Halliburton contends that the newly submitted documents “are diametrically opposed to the positions taken by the Tremont Parties in the arbitration” and “conclusive of the Tremont Parties’ ownership of the Malvern property ....” (Id.). In its motion for discovery, Halliburton “seek[s] discovery relating to the knowledge of the Tremont Parties as to the existence of the [newly submitted] documents, the decision to withhold the [newly submitted] documents, ... [and] the knowledge and intent of the Tremont Parties in connection with the production or specifically lack of production of the newly discovered documents.” (Docket Entry No. 342 at 1-2).

In response, the Tremont Parties assert that Halliburton is not entitled to relief under Rule 60(b)(2), (3), (5), or (6); that Halliburton’s motions are untimely under both the Federal Arbitration Act (FAA) and Rule 60(c); and that Halliburton has not shown that the result would have been affected even if the newly submitted documents had been presented during the arbitration or confirmation proceedings. (See generally Docket Entry No. 350). The Tremont Parties also argue that Halliburton’s motion for discovery should be denied, emphasizing that Halliburton had the newly submitted documents throughout the relevant time. (Id. at 47).

II. The Rule 60(b) Standard

Rule 60(b) of the Federal Rules of Civil Procedure provides in relevant part as follows:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(2) newly discovered evidence that, with reasonable diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct by an opposing party;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or otherwise vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Crv. P. 60(b). The scope of review under Rule 60(b) is narrower than on a direct appeal. Aucoin v. K-Mart Apparel Fashion Corp., 943 F.2d 6, 8 (5th Cir. 1991). Rule 60(b) allows the trial court to “correct obvious errors or injustices.” Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir.1977). A party moving under Rule 60(b) must show “unusual or unique circumstances.” Pryor v. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir.1985). Relief under Rule 60(b) is an extraordinary remedy; “ ‘the desire for a judicial process that is predictable mandates caution in reopening judgments.’ ” In re Pettle, 410 F.3d 189, 191 (5th Cir.2005) (quoting Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998)).

III. The Newly Submitted Documents

The newly submitted documents are Exhibits 2-11 to Halliburton’s Rule 60 motion. Halliburton describes the documents as follows:

Exhibit 2 — “Baroid Corporation Surplus Property Analysis dated September 30, 1989, listing Malvern property as ‘surplus property.’ ” (Docket Entry No. 341 at 13).

Exhibit 3 — “Baroid Corporation Memorandum dated October 2, 1990, from Bill Evon to, among others, Janet Smith, Associate General Counsel of NL[,] and Jay Young, Principal Environmental Engineer of NL, with a copy to Robert Hortvet at Valhi [ (a ‘publicly held company that had direct or indirect control over both Tremont and New Baroid until the Baroid/Dresser merger in 1993-94’) ], listing the Malvern property as ‘surplus’ property owned by Baroid Corporation and noting that Baroid was negotiating a sale of that property to the State.” (Id. & n. 4 (footnote omitted)).

Exhibit 4 — “Asset listing dated November 8, 1990, for ‘TRE Management Company (formerly Baroid Management Company)’ listing the Malvern property as having a value of $629,699.53. This document also shows a facsimile transmission from Valhi in August 2002, establishing that the Tremont Parties had possession of this document following the implementation of the 1990 Plan.” (Id. at 13-14 (footnote omitted)).

Exhibit 5 — “Baroid Corporation Memorandum dated December 6, 1990, from Bill Evon to, among others, NL’s Janet Smith and Jay Young, with a copy to Valhi’s Robert Hortvet, listing the Malvern property as ‘surplus’ property owned by ‘TRE,’ and noting that ‘all surplus properties have been transferred to TRE Management Co.’ ” (Id. at 14).

Exhibit 6 — “Baroid Corporation Surplus Property valuation dated December 31, 1990, showing the Malvern property on a list of ‘Tremont Book NOL’ as having a value of $629,700.” (Id.).

Exhibit 7- — “Baroid Corporation ‘Analysis of Surplus Property’ showing the Malvern property as being ‘surplus property’ transferred to ‘Tremont’ as of December 31,1990.” (Id.).

Exhibit 8 — “Tremont Corporation ‘Historical Analysis of Surplus Property’ dated January 14, 1991, listing the Malvern property.” (Docket Entry No. 341 at 14).

Exhibit 9 — -“Baroid Corporation Memorandum dated March 4, 1991, from Bill Evon to, among others, NL’s Janet Smith, with a copy to Valhi’s Robert Hortvet, attaching a ‘Surplus Owned Real Property Analysis’ listing the Malvern property as ‘surplus’ property owned by ‘TRE,’ and noting that Baroid was negotiating a sale of that property to the State.” (Id.).

Exhibit 10 — “Baroid Corporation Memorandum dated June 5, 1991, from Bill Evon to NL’s Janet Smith and Jay Young and Tremont’s General Counsel, David Garten, attaching a list ‘of properties owned by Tremont Corporation’ including 193.68 acres of ‘old mine site, raw land’ in Hot Spring[s] County, Arkansas.” (Id.).

Exhibit 11 — “Baroid Corporation Memorandum dated August 14, 1991, from Bill Evon to, among others, NL’s Janet Smith and Jay Young, Tremont’s David Garten, and TRE Management Company Vice President Susan Alderton, with a copy to Valhi’s Robert Hortvet, attaching ‘TRE Management Co. Surplus Owned Property — Status Report’ listing vacant land in Hot Spring County, Arkansas owned by ‘TRE,’ and noting that Baroid was negotiating a sale of that property to the State.” (Id. at 14-15).

The parties dispute the significance of the newly submitted documents; whether the Tremont Parties had the documents in their possession during the arbitration; and whether the Tremont Parties intentionally withheld the documents or engaged in other discovery misconduct in the arbitration proceeding. Halliburton primarily argues that the documents provide contemporaneous evidence that the Tremont Parties accepted responsibility for the Site shortly after the 1990 Plan, and that the Malvern property was transferred to the predecessors of the Tremont Parties through the restructurings. Halliburton argues that the documents contradict testimony and other documentary evidence on which the panel relied. Halliburton argues that there is reason to believe that the Tremont Parties had these documents in their possession during the arbitration, noting that key representatives of Tremont/NL had received many of the documents when they were written seventeen years earlier. In response, the Tremont Parties state that they diligently searched for all relevant documents in the arbitration, that they have no reason to believe that they possessed the newly submitted documents at the time of the arbitration and did not withhold them, that the newly submitted documents would not have made any difference in either the arbitration or this court’s confirmation proceedings, and that these documents are cumulative or could only have been used for impeachment.

There is no dispute that Halliburton found the documents at issue in its own files. There is no dispute that Halliburton had these documents in its files while it was preparing for the arbitration, responding to and promulgating discovery for the arbitration, during the arbitration, and during the post-award litigation. The Tremont Parties point out that the newly submitted documents were created by employees of the business that Halliburton now controls and “were at all times in the possession and control of Halliburton.” (Docket Entry No. 350 at 2). The Tremont Parties also argue that Halliburton has not shown that these documents were in the possession and control of the Tremont Parties during any relevant time. (Id. at 3). The Tremont Parties assert that the fact that some of the documents were copied to employees of one of the Tremont Parties or their affiliates more than seventeen years ago does not show that the Tremont Parties had the documents during the arbitration. (Id.).

The Tremont Parties emphasize a July 1997 letter from Dresser Industries, Inc. (“Dresser”) to NL describing the transfer of certain documents from Dresser to NL (the “July 1997 letter”). The Tremont Parties argue that this letter shows that Halliburton entities had the documents at issue and had them for years before, and during, the arbitration:

Halliburton’s argument that the Tremont Parties must now have Exhibits 2-11 is directly contradicted by the very document that Halliburton relies on— the July 9, 1997 letter agreement by which Dresser Industries, Inc. (“Dresser”) returned certain documents to NL. The footnote to this July 9, 1997 letter agreement states that Halliburton was returning to NL certain pre-1988 spinoff documents, and that the posW988 spin-off documents (along with certain pre-1988 spin-off documents) were being retained by the Halliburton side. All of the documents contained within Exhibits 2-11 are posM.988 spin-off documents.

(Id. (footnote omitted)).

The Tremont Parties also argue that “NL retained no documents or employees in connection with the former petroleum services business.” (Id. at 10). The Tremont Parties state that “under the 1990 Restructuring of NL’s former petroleum services business, New Baroid [now Halliburton] was subsequently provided with all of the former NL petroleum services assets and all of the records that related to the former petroleum services business of NL,” and that “Tremont retained no documents or employees in connection with the former petroleum services business.” (Id. at 11). The Tremont Parties point out that New Baroid subsequently merged into Dresser and then into Halliburton, and that “Exhibits 2-11, along with all other petroleum service business documents, subsequently became the property of Halliburton.” (Docket Entry No. 350 at 11). Finally, the Tremont Parties argue that the July 1997 letter establishes that Dresser was retaining posN1988 spin-off records, and that “[t]here is not a scintilla of evidence that any posN1988 spin-off records were delivered back to NL, or any of the other Tremont Parties for that matter.” (Id.).

The Tremont Parties contend that Halliburton has presented no adequate excuse for failing to find the newly submitted documents earlier, and point out that Halliburton’s stated reason for not finding the July 1997 letter indicating the existence of additional documents is that “ ‘it was kept in a separate file in the desk of a former records employee.’ ” (Id. at 14). The Tremont Parties also state that Patricia Suttles, a legal assistant in Halliburton’s legal department, was aware of the July 1997 letter and the documents. (Id.). The Tremont Parties submit the affidavit of Paige Savage, a legal assistant for Andrew Nace (Associate General Counsel of NL responsible for the Site), stating that Ms. Suttles emailed a copy of the July 1997 letter to Ms. Savage on January 12, 2007, before the arbitration hearings began. (Id.; id., Ex. I). The Tremont Parties conclude that “Ms. Suttles was well aware of the July 9, 1997 records agreement, and the fact that Halliburton had retained more than 581 boxes of NL petroleum services documents.” (Docket Entry No. 350 at 15). The Tremont Parties also submit the affidavit of Mr. Nace, stating that he spoke with Halliburton representatives well before the arbitration, and that the representatives made clear to him that they were aware of the July 1997 letter and of the fact that Halliburton had retained the petroleum services documents. (Id.). The Tremont Parties conclude: “For Halliburton to now contend that it first learned of the July 9, 1997 letter agreement by opening the drawer of a terminated employee, completely disregards the undisputed January 12, 2007 email of Patricia Suttles consciously forwarding the July 9, 1997 letter agreement to the Tremont Parties.” (Id.).

IV. The Timeliness of Rule 60 Motion

The Tremont Parties contend that Halliburton’s Rule 60 motion is untimely under the FAA and Rule 60(c). The Tremont Parties argue that the Rule 60 motion is really a new motion to vacate the arbitration award under section 10(a) of the FAA. (Docket Entry No. 350 at 42). According to the Tremont Parties, the FAA provides the sole means for challenging misconduct in the administration of the arbitration award. Section 12 of the FAA requires notice of a motion to vacate to be made “ ‘within three months after the award is filed or delivered.’ ” (Id. (quoting 9 U.S.C. § 12)). The final arbitration award was issued on September 10, 2007. “The plain language of § 12 does not provide for any exceptions to the three-month window and says nothing about tolling.” Olson v. Wexford Clearing Servs. Corp., 397 F.3d 488, 490 (7th Cir.2005). Halliburton’s motion to vacate was timely filed under the FAA but did not raise any of the issues raised in the Rule 60(b) motion, which was only filed after the motion to vacate was unsuccessful and the awards were confirmed. (Docket Entry No. 350 at 42).

The Tremont Parties also argue that Halliburton’s motion is untimely under Rule 60(e). A Rule 60(b) motion be made within a reasonable time. Motions under Rule 60(1), (2), and (3) must be made no more than a year after the entry of the judgment, order, or date of the proceeding. {Id. at 43). The final arbitration award was entered more than a year before Halliburton’s Rule 60 motion. Although Halliburton moved within one year of the judgment, the Tremont Parties argue that the motion was not filed within a reasonable time because Halliburton had all the newly submitted documents in its possession since 1990 and its outside counsel was aware of them since at least September 2008, but did not move for relief from judgment until 6:30 p.m. on the Friday before a Tuesday oral argument in the Fifth Circuit. {Id. at 43).

In Merit Insurance Co. v. Leatherby Insurance Co., 714 F.2d 673 (7th Cir.1983), the court emphasized the importance of the short deadlines for challenging arbitration awards. In that case, the arbitration panel entered its award in December 1980, the award was confirmed in Novemberl981, and the first Rule 60(b) motion was rejected a month later. Id. at 676-77. The losing party appealed both the confirmation order and the denial of the Rule 60(b) motion. While the appeal was pending, the losing party filed a second Rule 60(b) motion in May 1982, based on an alleged discovery the previous month that one of the arbitrators had worked under the plaintiffs president and principal stockholder at another insurance company. Id. at 677. The appeal was dismissed and the district court granted the second Rule 60(b) motion in November 1982. The Seventh Circuit reversed the district court’s decision to set aside the judgment confirming the arbitration award. The appellate court found it “significant that the issue of disqualification was raised here by a Rule 60(b) motion to set aside the award, filed some 18 months after the award had been issued by the arbitration panel (though only six months after it was confirmed by the district court).” Id. at 682. The court explained that “[t]he framers of Rule 60(b) set a higher value on the social interest in the finality of litigation,” and that “[a] motion under Rule 60(b) seeks an extraordinary remedy, especially where as in this case the motion is based on the catch-all provision of Rule 60(b), Rule 60(b) (6).” Id. (internal citation omitted). In a later opinion in the same case, considering an appeal from the denial of the party’s third Rule 60(b) motion, which renewed the arguments of its first motion, the Seventh Circuit stated:

For Leatherby to take two bites at the apple, by waiting to see how it fared in defending the district court’s grant of its second Rule 60(b) motion before deciding whether to attack the district court’s denial of its first motion, and then, after losing in this court, making that denial the subject of another appeal, is an abuse of orderly appellate procedure. See, e.g., Raxton Corp. v. Anania Associates, Inc., 668 F.2d 622, 624 (1st Cir. 1982). We shall tolerate no further delay in winding up this protracted litigation, which has made a mockery of the promise of arbitration to give those who choose it a swift and effective alternative to judicial dispute resolution.

Merit Ins. Co. v. Leatherby Ins. Co., 737 F.2d 580, 582 (7th Cir.1984). The decision in Merit Insurance Co. supports finding Halliburton’s Rule 60 motion untimely.

In American Telephone & Telegraph Co. v. United Computer Systems, Inc., Nos. 91-56444, 92-55220, 92-56034, 92-55666, 5 F.3d 534, 1993 WL 360778 (9th Cir. Sept. 15, 1993) (unpublished table decision) (“AT & T”), the court considered whether a Rule 60(b)(3) motion could be used to circumvent the FAA’s time limits on a motion to vacate. The AT & T court discussed LaFarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334 (9th Cir.1986). In LaFarge, the petition to vacate the award was timely filed and denied. The losing party moved under Rule 60(b)(3) within a year but not within the three-month period set under the FAA. The court in LaFarge held that the moving party could “ ‘not now collaterally attack the award under the guise of a motion to set aside the judgment confirming the award.’ ” AT & T, 1993 WL 360778, at *3 (quoting LaFarge, 791 F.2d at 1339) (emphasis added). The AT & T court distinguished LaFarge, noting that the movant in that case had “failed to identify any fraud, misrepresentation or misconduct in the district court proceedings, but rather alleged only fraud in the underlying arbitration. It is for that reason that we barred the movant from attacking the arbitration award ‘under the guise’ of a Rule 60 motion.” Id. (citing LaFarge, 791 F.2d at 1338-39) (emphasis added). By contrast, “[a]lthough AT & T alleged fraud in the arbitration, it also alleged fraud in the district court proceedings to confirm or vacate the award.” Id. “Where, as here, the party seeking relief from judgment alleged fraud in the proceedings to confirm or vacate an arbitration award, LaFarge is no obstacle.” Id. The court rejected the argument that after the three-month statutory period under the FAA, an arbitration award is unassailable. Id. The court summarized:

AT & T filed its original motion to vacate the arbitration award within the time period specified in section 12 and within the analogous time period required under California law. AT & T timely appealed the denial of its motion. When AT & T discovered the alleged fraud, it sought and obtained an order remanding the case to the district court. On remand, the district court considered AT & T’s Rule 60 motion. Thus, the proceedings on the Rule 60 motion for relief from judgment were a continuation of the proceedings initiated by AT & T within the statutory period. If the district court did not abuse its discretion in vacating the confirmation order, it properly considered AT & T’s motion to vacate the arbitration award.

Id. at *4.

The AT & T case cuts both ways in analyzing whether Halliburton’s Rule 60 motion is timely. On the one hand, Halliburton appears to be challenging the Tremont Parties’ discovery conduct during the arbitration, not the district court proceedings. Under AT & T, this weighs in favor of finding the motion untimely because it was filed long after the final arbitration award issued. On the other hand, if the Rule 60 motion could be characterized as a continuation of the original vacatur proceeding because — unlike the movant in AT & T — Halliburton did appeal the denial of its original motion to vacate, that could support finding the motion timely.

The Tremont Parties cite Mungin v. Florida East Coast Railway Co., 318 F.Supp. 720, 735 (M.D.Fla.1970), aff'd, 441 F.2d 728 (5th Cir.1971), for the proposition that “ ‘[w]here a party, through his silence or inaction, and with knowledge of the facts, or with such knowledge available to him and not used, allows intervening events to occur pursuant to the judgment which radically alter the position of the parties, and no convincing explanation of his delay in raising his objections is forthcoming, the motion under Rule 60(b) is not timely and I so find that this motion comes too late.’ ” (Docket Entry No. 350 at 45). The Tremont Parties argue that Halliburton’s reason for delay — that it recently discovered the July 1997 letter in the drawer of a former employee which led to the search that found the newly submitted documents — “is uprooted by the undisputed email from Patricia Suttles to the exact contrary.” (Id.). The Tremont Parties also argue that Halliburton has failed to explain why it allowed the appeal to go forward and waited to file its Rule 60(b) motion until just before oral argument, when it admits it knew about the July 1997 letter in September 2008. (Id.).

“In considering whether a Rule 60(b)(6) motion is timely, a court should scrutinize the particular circumstances of the case and balance the interest in finality with the moving party’s reasons for delay.” Horphag Research Ltd. v. Henkel Corp., No. 00 Civ. 0438(MBM), 2004 WL 117601, at *3 (S.D.N.Y. Jan. 26, 2004). In Horphag, the petitioner filed its Rule 60(b) motion nine months after an order finding that res judicata barred the petitioner’s claim to an offset from an arbitration award, six months after denial of the petitioner’s motion for reconsideration and three months after the arbitrators declined the petitioner’s invitation to issue a statement about whether they had adjudicated the issue. Id. The court held that “[b]e-cause Horphag has spent most of the last nine months attempting to obtain relief from the October 23 Order’s res judicata ruling, ... Horphag’s Rule 60(b) motion [was] timely.” Id.

Taking these authorities together, Halliburton’s motion appears untimely, but the issue is not completely clear. A threshold question is whether the three-month period in section 12 of the FAA applies to the Rule 60(b) motion, or whether the time limits in Rule 60(c) apply. A related question is whether the period begins to run on the date the final arbitration award was issued (September 10, 2007); the date the Confirmation Order was issued (March 31, 2008); or the date the Partial Final Judgment was issued (July 2, 2008). If the three-month period in the FAA applies because the motion is considered to be only an attack on the arbitration awards and not an attack on the district court proceedings, then the motion is untimely whether the triggering event is the date of the Allocation Award, the date of the Confirmation Order, or the date of the Partial Final Judgment. Even if Halliburton’s motion is characterized as an attack on the district court proceedings, it was not brought within a reasonable time under Rule 60. To the extent Halliburton is moving under Rule 60(b)(2) or (3), the one-year time period has expired if that period runs from the date of the arbitration award.

However, it can be argued that the period should run from the date of the Confirmation Order or the date of the Partial Final Judgment if the motion is characterized as an attack on the district court proceedings. Under either of those scenarios, the motion was made within one year of the judgment. Even then, Halliburton’s motion is likely untimely because the delay was unreasonable. Halliburton’s legal department knew about the July 1997 letter, which showed that Halliburton had additional boxes of potentially relevant documents in its possession, at least two years earlier, even if Halliburton’s outside counsel was unaware of these documents until recently.

The purpose behind the time limits also support finding Halliburton’s filing untimely. “ ‘The purpose of the short periods described in the federal and state arbitration statutes for moving courts to vacate an award is to accord the arbitration award finality in a timely fashion.’ This purpose would be severely undermined if the limitations period prescribed in the FAA. § 12 were tolled every time a losing party filed the functional equivalent of a motion for reconsideration.” Olson, 397 F.3d at 492 (internal citation omitted). But because the answer is unclear, and to provide a complete analysis now in order to avoid the risk of having to do so later, this court examines Halliburton’s motion on the merits. The result of that examination makes it clear that Halliburton cannot prevail on this Rule 60(b) motion. There is no basis for the relief Halliburton seeks.

V. Review of an Arbitration Award Through a Rule 60(b) Motion

The FAA provides four statutory grounds for vacating an award:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; [and]

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a).

When this court confirmed the arbitration award, the Fifth Circuit used manifest disregard of clearly applicable law as a ground for vacating an arbitration award. See, e.g., Am. Laser Vision, P.A. v. Laser Vision Inst., L.L.C., 487 F.3d 255, 259 (5th Cir.2007) (“Vacatur based on an arbitrator’s manifest disregard of the law is a judicially created ground of relief.”) (citing Prestige Ford v. Ford Dealer Computer Servs., Inc., 324 F.3d 391, 395-96 (5th Cir. 2003)). In the Confirmation Order, this court pointed out that in Hall Street Associates, L.L.C. v. Mattel, Inc., — U.S. —, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), the Supreme Court reemphasized the narrowness of the grounds for vacatur. (Docket Entry No. 239 at 27). This court explained:

In Hall Street Assocs., L.L.C. v. Mattel, Inc., — U.S. —, 128 S.Ct. 1396, 1399-1400, 170 L.Ed.2d 254 (2008), the court stated that the statutory bases for vacatur under the Federal Arbitration Act are exclusive. The Court rejected an argument that a statement from Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), that “the interpretations of the law by the arbitrators in contrast to manifest disregard [of the law] are not subject, in the federal courts, to judicial review for error in interpretation,” expanded both judicial grounds for vacatur and contracting parties’ ability to add grounds for vacatur beyond those provided in the FAA. See Hall Street Assocs., 128 S.Ct. at 1403-04. The Court held that the use of the phrase “manifest disregard” in the Wilko case was vague. Id. The Court stated that it was unclear in Wilko whether the “term ‘manifest disregard’ was meant to name a new ground for review,” or whether “it merely referred to the § 10 grounds collectively, rather than adding to them.” Id. (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 656, 105 5.Ct. 3346, 87 L.Ed.2d 444 (1985) (Stevens, J., dissenting)). The Court continued: “Or, as some courts have thought, ‘manifest disregard’ may have been shorthand for § 10(a)(3) or § 10(a)(4), the subsections authorizing vacatur when the arbitrators were ‘guilty of misconduct’ or ‘exceeded their powers.’ ” Id. (citing Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th Cir.2003)). The Court noted that in the past, it had “merely taken the Wilko language ... without embellishment, see First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) and now that its meaning is implicated, we see no reason to accord it the significance that Hall Street urges.” Hall Street Assocs., 128 S.Ct. at 1403-04. The Hall Street Associates Court emphasized the limited review afforded to arbitration decisions. “Instead of fighting the text [of the FAA], it makes more sense to see the three provisions, §§ 9— 11, as substantiating a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway. Any other reading opens the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,’ Kyocera, 341 F.3d at 998; cf. Ethyl Corp. v. United Steelworkers of Am., 768 F.2d 180, 184 (7th Cir.1985), and bring arbitration theory to grief in post-arbitration disputes.” Id. at 1405-06.

(Id. at 27-28).

In the Confirmation Order, this court stated that the “decision in Hall Street Associates calls into question whether the manifest disregard standard is a ground for vacatur separate from the statutory grounds for vacatur under the FAA, as the Fifth Circuit has previously stated, or a way of summarizing two or more of those statutory grounds.” (Id. at 28). However, this court noted that Hall Street was decided in a limited context:

In the context of considering whether private parties may contract for greater review of an arbitration decision by a district court than is provided for in the FAA, the Court stated that the statutory bases are exclusive grounds for vacatur. The Court declined to extend the “manifest disregard” standard to permit parties to contract for greater judicial revietv of arbitration awards than the FAA recognizes.

(Id. at 28-29 (internal citation omitted) (emphasis added)). Because it was unclear whether Hall Street eliminated manifest disregard as a separate ground for vacatur in all circumstances, this court analyzed the arguments for confirmation and vacatur under both the statutory grounds and the previously recognized common-law ground of manifest disregard:

Because the Supreme Court did not expressly decide whether the “manifest disregard” standard remains a separate basis for federal court review of arbitration decisions in at least some circumstances; because the Fifth Circuit has often approved of reviewing arbitration awards for “manifest disregard,” see, e.g., Am. Laser Vision, 487 F.3d at 259 (5th Cir.2007); and because Halliburton sought vacatur on the basis of the Fifth Circuit’s “manifest disregard” standard, out of an abundance of caution this court analyzes the parties’ arguments using “manifest disregard” as both a summary of some of the statutory grounds and as an additional ground for vacatur.

(Id. at 30).

Since the Confirmation Order issued, a Fifth Circuit panel has specifically considered whether Hall Street eliminated manifest disregard as a separate ground for vacatur in the context of judicial review of an arbitration award. See Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349, 350-51 (5th Cir.2009) (“On appeal, we consider whether manifest disregard of the law remains a valid ground for vacatur of an arbitration award in light of the Supreme Court’s decision in Hall Street .... ”). The Citigroup Global Markets court held:

We conclude that Hall Street restricts the grounds for vacatur to those set forth in § 10 of the Federal Arbitration Act (FAA or Act), 9 U.S.C. § 1 et seq., and consequently, manifest disregard of the law is no longer an independent ground for vacating arbitration awards under the FAA. Hall Street effectively overrules our previous authority to the contrary ....

Id. The Fifth Circuit concluded that Hall Street required it to overrule prior circuit authority holding that manifest disregard was a separate, nonstatutory ground for vacatur. Id. at 1407-09. (“To the extent that our previous precedent holds that nonstatutory grounds may support the vacatur of an arbitration award, it is hereby overruled.”). In so ruling, the Fifth Circuit disagreed with a panel in the Sixth Circuit. See id. at 1404-06 (rejecting Coffee Beanery, Ltd. v. WW, L.L.C., 300 Fed. Appx 415, 419 (6th Cir.2008), which construed Hall Street to apply only to contractual expansion of the grounds for review). The Fifth Circuit also noted the Second and Ninth Circuit cases finding that manifest disregard survived Hall Street—Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 93-95 (2d Cir.2008), and Comedy Club Inc. v. Improv West Assocs., 553 F.3d 1277, 1289 (9th Cir.2009) — did so only by finding that manifest disregard was shorthand for the statutory grounds for vacatur. See Citigroup Global Markets, 2009 WL 542780, at *6-8.

The Tremont Parties argue that Citigroup Global Markets requires this court to deny Halliburton’s Rule 60 motion. (See Docket Entry No. 360 at 1-2). “Halliburton is asking for this Court to look outside the exclusive regimes set forth by the FAA and to incorporate the dictates of Rule 60 of the Federal Rules of Civil Procedure to override the FAA. Citigroup Global Markets implicitly states that Halliburton is not entitled to such review.” (Id. at 2). Halliburton responds that it is not asking this court “to blend the standards applicable to Rule 60(b) relief with those for granting vacatur of an arbitration award.” (Docket Entry No. 361 at 2). Instead, Halliburton argues that it is asking this court first to act under Rule 60(b) to set aside the Confirmation Order and Partial Final Judgment, and then to grant Halliburton leave to amend its earlier unsuccessful motion to vacate the arbitration awards to add the statutory ground that “the awards were ‘procured by corruption, fraud, or undue means ....’” (Id.). Halliburton contends that because it would then be seeking vacatur under one of the statutory grounds, the manifest disregard standard is not implicated. (Id.).

Halliburton proposes a two-step process. First, Halliburton proposes that “because this Court entered the [Confirmation Order] and the Partial Final Judgment based upon the Confirmation Order, it is beyond question that this Court has discretion to exercise its post-judgment jurisdiction under Fed.R.Civ.P. 60(b) to vacate both the Confirmation Order and the Partial Final Judgment.” (Docket Entry No. 357 at 2-3). Halliburton asserts that “[b]y properly exercising its discretion to set aside the Confirmation Order and the Partial Final Judgment, this Court will return this case to a position in which there are pending arbitration awards that have been neither confirmed nor vacated by the Court.” (Id. at 3-4). Halliburton asserts that “[a]s the second step in granting Halliburton’s requested relief, this Court should also grant leave for Halliburton to file an amended motion to vacate the arbitration awards to add the statutory basis for vacatur that the arbitration awards were wrongfully obtained by fraud or undue means.” (Id. at 4). Next, Halliburton asserts that this court should, “based upon the appropriate deferential review standard, and based upon the evidence already presented, together with evidence to be gathered during Halliburton’s limited requested discovery, grant the amended motion for vacatur.” (Id.). Halliburton contends that “[b]y engaging in this two-step process, this Court will act within its discretion, and, at the same time, apply the proper standard for assessing whether vacatur of the arbitration awards is proper.” (Id.).

As authority for the first step in this proposed procedure, Halliburton cites to Baltia Air Lines, Inc. v. Transaction Mgmt., Inc., 98 F.3d 640, 642 (D.C.Cir. 1996), for the proposition that “Rule 60(b) is an appropriate vehicle by which to challenge a judgment confirming an arbitration award.” (Id. at 3). In Baltia Air Lines, the party that lost in arbitration and in the confirmation proceeding moved under Rule 60(b) for relief from the judgment confirming the arbitration awards. 98 F.3d at 641-42. The party alleged that newly discovered evidence showed that the original contract had been fraudulently obtained, that the opposing party’s representatives had perjured themselves during the arbitration, and that the opposing party’s lawyer had made misrepresentations to the district court during the confirmation proceedings. Id. at 642. The district court dismissed the Rule 60(b) motion and the appellate court affirmed, stating that “[a]lthough Rule 60(b) is an appropriate vehicle by which to challenge a judgment confirming an arbitration award,” the motion was untimely under Rules 60(b)(2) and (b)(3); Rule 60(b)(6) could not be used to circumvent the requirements of Rules 60(b)(2) and (b)(3); and while fraud on the court remained a potential avenue for relief, the moving party had not shown fraud. Id.

As the Tremont Parties point out, under Rule 81(a)(6), the Federal Rules of Civil Procedure apply except to the extent Title 9 of the United States Code provides otherwise. See Fed. R. Civ. P. 81(a)(6)(B) (“These rules, to the extent applicable, govern proceedings under the following laws, except as these laws provide other procedures: ... (B) 9 U.S.C., relating to arbitration ....”). The FAA provides “other procedures” for confirming and vacating an award. See 9 U.S.C. § 9 (“[T]he court must grant such an order [confirming the award] unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.”) (emphasis added); 9 U.S.C. § 10 (providing grounds for vacatur); 9 U.S.C. § 11 (providing grounds for modifying or correcting an award). Rule 60(b) cannot be used to circumvent the specific “other procedures” in the FAA. Although Baltia Air Lines conclusorily stated that a Rule 60(b) motion may be used to challenge a judgment confirming an arbitration award, the motion in that case was time-barred. The Baltia Air Lines court did not face or examine the limits on the use of Rule 60(b) to challenge conduct in an arbitration proceeding rather than in the district court. The offhand comment in Baltia Air Lines does not expand or circumvent the specific procedures set out in the FAA to challenge an arbitration award or support Halliburton’s proposed procedure for doing so.

Halliburton also relies on Haskins v. Brown, No. 86-4013, 836 F.2d 1347, 1988 WL 238 (6th Cir. Jan. 4, 1988) (unpublished table decision) (per curiam). Halliburton states that in that case, the appellate court acknowledged a district court’s power under Rule 60(b) to vacate a prior judgment confirming an arbitration award. (Docket Entry No. 357 at 3). As the Tremont Parties point out, the appellate court dismissed the appeal for lack of jurisdiction. (See Docket Entry No. 358 at 4). In Haskins, after the arbitration award was confirmed, one party sought relief from the judgment under Rule 60(b) because “of an alleged lack of intent to comply with the award on the part of appellant.” 1988 WL 238, at *1. The district court, without a hearing, “set aside its order enforcing the award, the arbitrators’ decision, and the parties’ stipulation as to the finality of the arbitrators’ decision.” Id. The Sixth Circuit stated that “[i]t is well settled that the grant of a new trial is not a final appealable order,” but acknowledged that the Second Circuit had recognized an exception to that rule if the district court lacked jurisdiction to grant a new trial. Id. (citation omitted). The Sixth Circuit considered whether, if the Second Circuit’s exception were to apply, the district court had jurisdiction to grant relief under Rule 60(b). Id. The court stated: “Rule 60(b) provides a list of those instances where relief may be had from a final judgment by the grant of a new trial. If there is a showing of mistake, inadvertence, surprise or manifest injustice, then the district court may exercise its jurisdiction to vacate a final award.” Id. at *2. The court concluded that because the district court had jurisdiction to vacate the arbitration award and grant a new trial under Rule 60(b) for “manifest injustice,” the appellate court lacked jurisdiction. Id. This short, unpublished opinion dismissing the appeal for lack of jurisdiction did not substantively analyze whether Rule 60(b) could be used to circumvent the statutory grounds for vacatur. It merely stated that the district court had jurisdiction to grant a new trial under Rule 60(b). Halliburton’s argument that this opinion shows that Rule 60(b) can be used to overcome a judgment and order confirming a final arbitration award is not persuasive.

In discussing the second step of its proposed procedure, Halliburton acknowledges that it “has been unable to find any case that addresses facts directly in line with those presented in this case.” (Docket Entry No. 357 at 4). Halliburton relies on Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378 (11th Cir.1988), to argue that a party may “file an amended motion to vacate based upon its discovery of previously undiscovered fraud relating to an arbitration award.” (Id.). In Bonar, the Eleventh Circuit considered an appeal from the district court’s denial of a motion to vacate an arbitration award based on allegations that the opposing party’s expert had falsified his credentials in the arbitration. 835 F.2d at 1381. The loser had already filed a motion to vacate the award under the FAA based on other grounds when it discovered the alleged perjury and moved to amend its motion to vacate or modify the arbitration award to add the ground that the award was procured through fraud. Id. The opposing party moved to confirm the arbitration awards and to strike as untimely the amended motion to vacate. Id. The district court granted the motion to confirm the award, denied the motion to vacate or modify, and entered final judgment. Id. The Eleventh Circuit considered “whether an amended motion to vacate an arbitration award, filed outside of the three month period and raising additional grounds for vacation, is deemed timely if the original motion to vacate was timely.” Bonar, 835 F.2d at 1381-82. In finding that the amended motion was timely, the court viewed the original motion to vacate as analogous to the start of a new cause of action. See id. at 1382. The court stated: “[Although technically called a ‘motion,’ the papers filed by a party seeking to confirm or vacate an arbitration award function as the initial pleadings in post-arbitration proceedings in the district court. Consequently, Rule 15, which governs amended and supplemental pleadings in a civil action should also apply to amended motions to vacate arbitration awards.” Id. The court found that the opposing party “filed no motion, memorandum, or other paper in the district court that could be construed as a responsive pleading until after ... [the] amended motion to vacate the arbitration award.” Id. As a result, the moving party was entitled to amend without leave of court. Id. The court also explained that the focus of the original motion to vacate was the conduct and result of the arbitration proceedings, and that the issue raised in the amended motion arose out of the same transaction or occurrence as the original motion to vacate. See id. The court concluded that the “amended motion to vacate relates back to the date of its original motion to vacate, and is itself a timely motion.” Bonar, 835 F.2d at 1382 (footnote omitted).

Halliburton argues that, as in Bonar, it timely moved to vacate the arbitration awards and should be allowed to use this Rule 60 motion to amend its earlier motion to vacate under Rule 15. (See Docket Entry No. 357 at 6). Halliburton acknowledges that unlike the responding party in Bonar, the Tremont Parties did file a response to Halliburton’s original motion to vacate. (See id.). Halliburton argues that this only means that it needs leave of court to file the amended motion to vacate and leave should be freely granted “ ‘when justice so requires.’ ” (See id. (quoting Fed. R. Civ. P. 15(a)(2))).

The differences between this case and Bonar are much more extensive than Halliburton asserts. In Bonar, the amended motion to vacate was filed before any action had been taken on the original motion, either by the opposing party or the court. Here, in sharp contrast, Halliburton’s hypothetical amended motion to vacate would follow the Tremont Parties’ extensive responsive pleadings, this court’s detailed Confirmation Order and Partial Final Judgment, this court’s denial of Halliburton’s motion for new trial, and the Fifth Circuit’s decision affirming the Confirmation Order and Partial Final Judgment. Halliburton’s hypothetical amended motion to vacate can hardly be characterized as simply a motion to file amended pleading, for which leave should be freely granted.

In addition, Bonar's analysis shows the futility of allowing Halliburton to file an amended motion to vacate, even if this court could somehow characterize its Rule 60 motion in that fashion and find the amended motion to vacate timely. In Bonar, after finding that the amended motion to vacate was timely, the court emphasized that the alleged fraud on which it was based “must not have been discoverable upon the exercise of due diligence prior to or during the arbitration.” Bonar, 835 F.2d at 1383 (citations omitted). The moving party in that case showed that “it could not have discovered the perjury before or during the arbitration hearing.” Id. at 1384. In sharp contrast, Halliburton cannot argue that it could not have discovered the documents at issue or the alleged fraud — the Tremont Parties’ failure to produce those documents — before or during the arbitration hearing. The newly submitted documents were in Halliburton’s own files during the relevant period. Even if the Tremont Parties also had the newly submitted documents in their files and even if the Tremont Parties intentionally withheld them in the arbitration — neither of which Halliburton shows — Halliburton could have discovered the documents (and the Tremont Parties’ failure to produce them) during the arbitration simply by looking in its own files.

The courts have not read Bonar as Halliburton does. The Eleventh Circuit, in considering a motion to modify or correct an arbitration award under section 11 of the FAA, has cited Bonar for the proposition that arbitration awards cannot be modified based on fraud that could have been discovered earlier. In AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., the court cited Bonar in noting that “judicial review of arbitration decisions is ‘among the narrowest known to the law,’ ” and that “[t]hat narrow review is why a court cannot vacate an arbitration award for fraud based on information available before or during the arbitration that the parties, through lack of diligence, failed to discover.” 508 F.3d 995, 1001 (11th Cir.2007) (citing Bonar, 835 F.2d at 1383) (additional citation omitted). The AIG Baker Sterling Heights court held that the district court had erred in modifying the award, lamenting that while “[t]he parties elected to settle their dispute by arbitration rather than litigation,” the appeal was pending “after more than three years of litigation.” Id.

As further support for its argument that this court should exercise its discretion to grant Halliburton’s Rule 60 motion and then grant it leave to file an amended motion to vacate using the newly submitted documents, Halliburton also cites Bonar for the proposition that the fraud standards in Rule 60(b) and the fraud standards for vacatur under the FAA are the same. (Docket Entry No. 357 at 8). In Bonar, the court noted:

The standard for determining whether a party should be relieved of a final judgment under 60(b)(3) is nearly identical to the standard for determining whether an award should be vacated for fraud under § 10(a). This is not surprising considering that both statutes serve the same function of permitting the reopening of an otherwise final judgment upon a demonstration of fraud in the proceedings, and both counteract the strong policy favoring the finality of awards and judgments. Thus, cases arising under Rule 60(b)(3) are persuasive authority in deciding cases under § 10(a).

835 F.2d at 1383 n. 8 (internal citations omitted). This language does not give Halliburton the support it seeks. The language may support an inference that just as cases decided under Rule 60(b)(3) may provide guidance for deciding cases under section 10(a) of the FAA, cases decided under section 10(a) of the FAA may provide guidance for deciding whether to grant a request to overturn a judgment under Rule 60(b)(3) based on alleged fraud. But this language does not provide authority to use a Rule 60(b) motion to circumvent or expand the FAA’s limits on judicial review of an arbitration award.

Halliburton also cites Bonar to argue that it should not be penalized for the Tremont Parties’ alleged failure to produce the newly submitted documents. Halliburton relies on the Bonar court’s statement, “ ‘[w]e refuse to penalize [the movant] for exercising the thoroughness and caution that appellees themselves did not exercise.’ ” (Docket Entry No. 357 at 7 (quoting Bonar, 835 F.2d at 1382 n. 6)). Halliburton contends that it “should not be penalized for ultimately discovering documents that the Tremont Parties should have known existed, and should have disclosed, during the arbitration process.” (Id. (footnote omitted)). The statement in Bonar about refusing to penalize the alleged victim of fraud for exercising thoroughness and caution that the other party had failed to exercise does not apply here. Halliburton has not shown that the documents were in the Tremont Parties’ possession at the time of the arbitration or that the Tremont Parties committed misconduct in failing to produce the documents. And Halliburton could have discovered the fraud it alleges by looking in its own files. The Bonar court pointed out that although the moving party exercised due diligence, it could not have discovered the fraud during the arbitration. Bonar, 835 F.2d at 1383. Halliburton’s discovery of the documents at issue in its own files over a year after the final arbitration award was entered cannot be characterized as the “thoroughness and caution” that the Bonar court found the victim of the fraud exercised in that case. In short, Halliburton’s reliance on Bonar is unpersuasive on both the facts and the law.

Halliburton asks this court to use Rule 60(b) to overturn its judgment confirming the arbitration awards over a year after the final award was entered, on grounds that were not asserted in the motion to vacate the awards. Halliburton interprets Rule 60(b) as providing authority for a court to overturn arbitration awards not only after they were confirmed and judgment was entered, but after the judgment was affirmed on appeal. Halliburton does not explain why it should be in a better position to overturn the awards after confirmation, judgment, and unsuccessful appeal, than it was in during the confirmation proceeding. And to the extent Halliburton seeks to overturn the Confirmation Order and Partial Final Judgment based on grounds in Rule 60(b) that are not provided for vacatur under the FAA, Halliburton has not shown any justification for using Rule 60(b) to overturn an order and judgment confirming an arbitration award on grounds that could not have been used to vacate the award in the first place.

Halliburton has not attacked the district court proceedings. Halliburton’s focus is on alleged misconduct at the arbitration proceedings. Yet Halliburton asks this court to view the Confirmation Order and Partial Final Judgment as subject to a separate review process from the arbitration awards themselves, compounding the anomalous nature of the approach it proposes. The authority Halliburton relies on to support its proposed procedure is neither on point nor persuasive. Halliburton does not take into account authority that a court cannot use Rule 60(b) to expand the FAA’s grounds for vacatur. Cf. e.spire Commc’ns, Inc. v. CNS Commc’ns, 39 Fed.Appx. 905, 912 (4th Cir.2002) (“Because the FAA contains exclusive procedures for vacating arbitration awards, Rule 60(b)(1) is inapplicable.”) (footnote omitted) (unpublished) (per curiam); LaFarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1339 (9th Cir. 1986) (holding that “Kaiser may not now collaterally attack the award under the guise of a motion to set aside the judgment confirming the award,” and noti