Bennie Kennedy v. Schneider Electric

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 17-1645 & 17-1786

BENNIE KENNEDY,

Plaintiff-Appellant,

and

JOHN H. DAVIS,

Respondent-Appellant,

v.

SCHNEIDER ELECTRIC,

formerly known as SQUARE D COMPANY,

Defendant-Appellee.

____________________

Appeals from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 12-CV-122 — Paul R. Cherry, Magistrate Judge.

____________________

ARGUED JANUARY 10, 2018 — DECIDED JUNE 19, 2018

____________________

2 Nos. 17-1645 & 17-1786

Before WOOD, Chief Judge, and HAMILTON, Circuit Judge,

and BUCKLO, District Judge. *

HAMILTON, Circuit Judge. In 2012, Bennie Kennedy filed a

lawsuit against his longtime employer, Schneider Electric. In

2014, the district court granted summary judgment for

Schneider Electric. More than a year later, and without offer-

ing any new evidence, Kennedy’s lawyer filed a motion to set

aside the judgment for fraud on the court, accusing Schneider

Electric’s lawyers of suborning perjury. The district court de-

nied that motion and exercised its discretion to impose sanc-

tions on Kennedy’s lawyer under Rule 11. Kennedy appeals

the denial of his motion, and his lawyer appeals the sanction

order. We affirm both decisions.

I. Factual Background and Procedural History

A. The Initial Lawsuit

Plaintiff Bennie Kennedy has decades of experience in the

safe operation and maintenance of electric-power distribution

equipment. From 2004 to 2010, he taught classes in electrical

and industrial safety at an Illinois community college, Prairie

State College. Kennedy did this teaching in addition to his

day job with defendant Schneider Electric, whose proprietary

power-distribution equipment he knows very well from years

of first-hand experience. To protect its proprietary infor-

mation, Schneider Electric requires its employees to obtain

advance approval before they teach classes or submit articles

for publication.

*Hon. Elaine E. Bucklo of the Northern District of Illinois, sitting by

designation

Nos. 17-1645 & 17-1786 3

Without obtaining Schneider Electric’s permission, in 2010

Kennedy published two articles about power-distribution

equipment in trade publications. Kennedy identified himself

in these articles as a Prairie State instructor. When Schneider

Electric’s marketing staff caught wind of these articles in July

2010, a human resources manager contacted Prairie State to

ask about the contents of Kennedy’s course materials, which

she worried might have contained proprietary information.

That fall, while reviewing the credentials of instructors ex-

pected to teach at the college the following spring, Prairie

State officials realized that Kennedy did not possess the qual-

ifications required to teach at the college. As Kennedy later

admitted, he did not meet any of the three possible combina-

tions of education and experience that would have qualified

him to teach electrical safety classes at Prairie State. The fol-

lowing spring, after asking Kennedy for information about

his credentials and reviewing his response, Prairie State de-

cided not to rehire Kennedy as an adjunct instructor. Prairie

State left open the possibility, though, that Kennedy could be

reinstated in the future if he could prove that he had the re-

quired qualifications.

Almost a year later, Kennedy filed this lawsuit against

Schneider Electric alleging defamation and malicious interfer-

ence with an advantageous relationship. His complaint al-

leged that Schneider Electric’s human resources staff had de-

famed him by calling Prairie State and expressing concern

about his course materials. Kennedy further alleged that this

telephone call resulted in the loss of his teaching position.

Kennedy filed the case in state court, but after his lawyer told

Schneider Electric’s lawyer that he would “venture to guess”

4 Nos. 17-1645 & 17-1786

that damages would be over $75,000, Schneider Electric re-

moved the case to the Northern District of Indiana based on

diversity jurisdiction under 28 U.S.C. § 1332.

Kennedy’s lawsuit survived a Rule 12 motion to dismiss

on the pleadings, but in 2014 the district court granted Schnei-

der Electric’s motion for summary judgment. Magistrate

Judge Cherry, presiding with the consent of the parties under

28 U.S.C. § 636(c), found that the evidence showed beyond

reasonable dispute that Prairie State “decided to revoke Plain-

tiff’s teaching approval solely because he did not meet [Prairie

State’s] credentialing requirements” and not because of

Schneider Electric’s telephone call. Dkt. 49 at 15. The court en-

tered final judgment in favor of Schneider Electric the same

day. Kennedy did not appeal.

B. The Rule 60 Motion and Sanctions

More than a year after judgment was entered, Kennedy

filed a motion to set aside the judgment for fraud on the court.

The motion invoked Federal Rule of Civil Procedure 60(d)(3),

which does not actually authorize relief but provides that the

rest of Rule 60 does not limit a court’s inherent power to set

aside a judgment for fraud on the court. See Fed. R. Civ. P.

60(d)(3); see also Fed. R. Civ. P. 60(b) & (c)(1). A motion invok-

ing this inherent power is not subject to the one-year limit for

motions under Rule 60(b)(3). See In re Golf 255, Inc., 652 F.3d

806, 809 (7th Cir. 2011); Oxxford Clothes XX, Inc. v. Expeditors

Int’l of Washington, Inc., 127 F.3d 574, 578 (7th Cir. 1997).

Kennedy’s motion argued that summary judgment had

been granted based on perjured deposition testimony and a

perjured affidavit. He further asserted that Schneider Elec-

Nos. 17-1645 & 17-1786 5

tric’s lawyers knowingly submitted this allegedly perjured ev-

idence to the district court. To support these serious accusa-

tions, Kennedy’s lawyer pointed only to discrepancies in the

evidence that had been submitted to the district court for and

against the original motion for summary judgment. Because

Schneider Electric’s human resources manager could not sup-

ply a definition of “proprietary information” at her deposi-

tion, Kennedy argued that her telephone call to Prairie State

could not actually have been for the purpose of protecting

that information. From this shaky foundation, he proposed

the conclusion that her testimony about her purpose must

have been perjured. Kennedy also accused the human re-

sources manager of lying about when she learned of his teach-

ing activities.

In addition, Kennedy attacked an affidavit from a Prairie

State official as “clearly false” because it did not address the

fact that a full accrediting review of Prairie State had occurred

in the 2008–2009 academic year while Kennedy was teaching

there. Kennedy also thought the declaration was perjured be-

cause it said Prairie State’s decision to revoke his teaching cre-

dentials had “no connection” to the call from Schneider Elec-

tric, yet in an email the same official had written: “I have con-

cerns with regards to the liability of Mr. Kennedy and the col-

lege based on the conversations with [Schneider Electric].” By

submitting these documents in support of their summary

judgment motion, Kennedy argued, Schneider Electric’s law-

yers had committed fraud on the court.1

1 Kennedy’s lawyer made various other claims regarding counterfeit

evidence, statements by the district court, and conflicts of interest in the

Rule 60 motion, but failed to present specific and coherent legal arguments

6 Nos. 17-1645 & 17-1786

The district court denied Kennedy’s Rule 60 motion. Mag-

istrate Judge Cherry explained that Kennedy had “failed to

show how this rises to the level of fraud on the court” since

the motion relied only on evidentiary discrepancies that were

known at the time summary judgment was granted. Dkt. 72

at 7. These arguments were available at that time and “should

have been made in a motion to reconsider or on appeal,” not

in a later fraud-on-the-court motion invoking Rule 60(d)(3),

id., citing In re Golf 255, 652 F.3d at 809, which requires clear

and convincing evidence of fraud to overturn a judgment,

Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010). Since

Kennedy advanced no new evidence to support his accusa-

tion that Schneider Electric’s lawyers knowingly committed

fraud on the court, the district court also granted a motion for

Rule 11 sanctions against Kennedy’s lawyer, John H. Davis,

for the costs of having to defend against the Rule 60 motion.

Dkt. 72 at 14–15; Dkt. 77 at 2 (finding defendant’s proposed

hourly rate and number of hours reasonable and awarding

$10,627.16). Plaintiff Kennedy and lawyer Davis appealed the

district court’s decisions regarding the Rule 60 motion and the

Rule 11 sanctions, respectively.

on those issues to the district court. Kennedy’s briefs on appeal are no dif-

ferent. Consequently, those arguments are forfeited. See Fed. R. App.

P. 28(a)(6)–(8); Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 527 (7th

Cir. 2003) (under Rule 28 “an appellant’s argument must provide both his

contentions and the reasons for them,” including supporting authorities)

(internal quotation marks omitted).

Nos. 17-1645 & 17-1786 7

II. Analysis

A. Rule 60 Motion to Set Aside the Judgment

We review the denial of a Rule 60 motion deferentially, for

an abuse of discretion. McCormick v. City of Chicago, 230 F.3d

319, 326–27 (7th Cir. 2000). As we have said often, Rule 60 re-

lief is limited to “extraordinary” situations where a judgment

is the inadvertent product of “special circumstances and not

merely [the] erroneous application[] of law.” Russell v. Delco

Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995).

We use such language most often in affirming the denial of

relief under Rule 60. At the same time, Rule 60 gives district

courts the power and discretion to modify their judgments

when truly new facts come to light or when the judge recog-

nizes an error and believes it should be corrected. Still, even

judges exercising that flexibility must be careful not to under-

mine too lightly the finality of their judgments. See Mendez v.

Republic Bank, 725 F.3d 651, 657, 660 (7th Cir. 2013) (noting

need to “balance the availability of post-judgment relief with

finality interests,” which is not a problem “in the rare case

where a district judge recognizes a clear legal or factual error”

soon after entering judgment).

Rule 60 recognizes two types of fraud in the adversarial

process that, if demonstrated within the proper timeframe,

may merit relief from a final judgment. The first type is

“fraud[,] … misrepresentation, or misconduct by an opposing

party,” Fed. R. Civ. P. 60(b)(3), which prevented the party

seeking relief “from ‘fully and fairly presenting’” his merito-

rious case at trial. Wickens, 620 F.3d at 759 (finding that dis-

covery violation did not amount to fraud), quoting Lonsdorf v.

Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). Parties asserting this

8 Nos. 17-1645 & 17-1786

type of fraud must move for relief within one year of “the en-

try of the judgment or order or the date of the proceeding.”

Fed. R. Civ. P. 60(c)(1).

The second type is “fraud on the court,” see Fed. R. Civ. P.

60(d)(3), which we have described as fraud “directed to the

judicial machinery itself” and involving “circumstances

where the impartial functions of the court have been directly

corrupted.” In re Whitney-Forbes, Inc., 770 F.2d 692, 698 (7th

Cir. 1985) (citations omitted). Motions seeking relief in light of

fraud on the court can be brought at any time after judgment

because the “conduct … might be thought to corrupt the judi-

cial process itself.” Oxxford Clothes, 127 F.3d at 578. Examples

include situations where “a party bribes a judge or inserts bo-

gus documents into the record.” Id.2 But because a “motion

to set aside a judgment on the ground of fraud on the court

has no deadline” and can be brought at any time under Rule

60(d)(3) to challenge final judgments, the definition of

“fraud” contemplated by the rule must be “defined narrowly

lest it become an open sesame to collateral attacks.” In re Golf

255, 652 F.3d at 809 (internal quotations and citation omitted).3

2 In contrast, we have rejected allegations of fraud on the court where

the record indicates “a technical violation of the rules” governing ex parte

contacts with bankruptcy judges and “a serious infraction of those rules

in an unrelated case.” E.g., In re Met-L-Wood Corp., 861 F.2d 1012, 1019 (7th

Cir. 1988).

3 Rule 60 was amended in 2007 to move parts of old subsection (b) into

new subsections (b), (c), (d) and (e). Cases from before 2007 refer more

generally to Rule 60(b) when discussing both general fraud and miscon-

duct of an opposing party (now styled as a Rule 60(b)(3) matter) and fraud

on the court (now addressed under Rule 60(d)(3)). Whether the moving

Nos. 17-1645 & 17-1786 9

We have therefore set a high bar for what constitutes fraud

on the court under Rule 60(d)(3). Critically for this case, the

alleged fraud must go beyond mere discrepancies in the rec-

ord evidence available at the time judgment was entered. The

fraud must have been the kind of fraud that ordinarily could

not be discovered, despite diligent inquiry, within one year or

even many years. Id. We explained in Oxxford Clothes: “A lie

uttered in court is not a fraud on the liar’s opponent if the op-

ponent knows it’s a lie yet fails to point this out to the court.

If the court through irremediable obtuseness refuses to disre-

gard the lie, the party has … a remedy by way of appeal.” 127

F.3d at 578.

This case presents a situation similar to Cash v. Illinois Di-

vision of Mental Health, 209 F.3d 695 (7th Cir. 2000), where the

plaintiff lost in a Title VII bench trial. The plaintiff missed the

deadline to file a Rule 59 motion for a new trial but later

sought relief by filing a motion that this court labeled a Rule

60 motion to set aside the judgment. Id. at 697. Cash argued

that the district court mishandled and misinterpreted the ev-

idence at the bench trial. He sought a new trial where the dis-

trict court would consider the same record all over again, with

immaterial alterations. We affirmed the district court’s denial

of the Rule 60 motion. We explained that arguments:

that the court wrongly excluded evidence, mis-

interpreted the evidence that was presented,

and did not understand [the plaintiff’s] theory

of the case … cannot be shoe-horned into

grounds for Rule 60(b) relief. The rule is not an

party presents the grounds for relief as fraud or as fraud on the court, the

same deference extends to district court rulings on such motions.

10 Nos. 17-1645 & 17-1786

alternate route for correcting simple legal er-

rors. Rather, it exists to allow courts to overturn

decisions where “special circumstances” justify

an “extraordinary remedy.” See Russell, 51 F.3d

at 749. Cash’s appeal presents no such case. He

simply tripped over the time clock and wants to

be able to appeal as if he did not. Were we to

allow appellants to follow this route, the rules

governing the timeliness of appeal would

quickly lose their bite, and one of the law’s pri-

mary purposes—to settle disputes finally—

would be undermined. Since Cash’s arguments

fall outside the class of mistakes Rule 60(b) ex-

ists to correct, they fail.

Id. at 698. This rationale applies with considerable force to a

motion invoking Rule 60(d)(3) and alleging fraud on the

court, a request for relief that can be brought at any time. See

In re Golf 255, 652 F.3d at 809.

Nothing new came to light here. As the district court

stressed, Kennedy had the opportunity to challenge this same

evidence on summary judgment. If the court made a mistake

back in 2014, Kennedy could have asked for reconsideration

and/or appealed. He did neither. Instead, after more than a

year he alleged fraud on the court based on only the evidence

that had been presented on the original motion for summary

judgment. If a disappointed party could win relief through

Rule 60(d) by recycling discrepancies in the evidentiary rec-

ord, few judgments in fact-intensive civil cases would be safe.

We affirm the denial of Kennedy’s Rule 60 motion.

Nos. 17-1645 & 17-1786 11

B. Rule 11 Sanctions

We also review a district court’s grant of Rule 11 sanctions

for an abuse of discretion. Northern Illinois Telecom, Inc. v. PNC

Bank, N.A., 850 F.3d 880, 883 (7th Cir. 2017). To succeed, parties

challenging sanctions need to show that “the district court

based its decision on an erroneous view of the law or a clearly

erroneous evaluation of evidence.” Id., citing Gastineau v.

Wright, 592 F.3d 747, 748 (7th Cir. 2010); see also Fed. R. Civ.

P. 11(c).

On appeal, attorney Davis summarizes his factual argu-

ment against the sanctions ruling this way: “It is redundant to

continue discussing appeals, summary judgments, Rule 60(b)

filings. The fact is that Appellant’s attorney did not rush to file

a document that goes after the integrity of a fellow attorney.”

As for law, he cites a 1993 district court case from Iowa that

chastised the lawyer there for engaging in “bickering, ha-

ranguing, … general interference” and other examples of

“Rambo Litigation.” See Van Pilsum v. Iowa State Univ. of Sci.

& Tech., 152 F.R.D. 179, 180–81 (S.D. Iowa 1993) (adopting cre-

ative response under Rule 37 to discourage such discovery

tactics). Neither of these points addresses whether or how the

district court in this case abused its discretion in deciding to

award sanctions against Davis personally.

We appreciate Mr. Davis’s initial hesitation before leveling

fraud accusations at another lawyer. But he then went ahead

and did just that, and without presenting any new evidence

of fraud. He offered only inferences and innuendo drawn

from the original summary judgment record. Rule 11 “re-

quires counsel to read and consider before litigating,” which

Davis claims to have done, but it also “establishes an objective

test,” U.S. Bank Nat’l Ass’n, N.D. v. Sullivan-Moore, 406 F.3d

12 Nos. 17-1645 & 17-1786

465, 470 (7th Cir. 2005) (citation omitted), that asks whether

the attorney engaged in “an inquiry reasonable under the cir-

cumstances” before filing a motion. Fed. R. Civ. P. 11(b). Davis

makes no effort to explain how his investigations of the facts

and law underlying the Rule 60 motion he filed were reason-

able. The district court awarded sanctions for having to re-

spond to this motion, and Davis has not advanced a coherent

argument that shows how this grant was an abuse of discre-

tion. We affirm the decision of the district court imposing

sanctions.

C. Appellate Sanctions

Finally, appellee Schneider Electric has asked for an addi-

tional sanctions award under Federal Rule of Appellate Pro-

cedure 38 against Kennedy and/or Davis for filing frivolous

appeals. We deny this request because the request itself was

procedurally improper. Rule 38 expressly requires that a

party’s demand for sanctions come in “a separately filed mo-

tion.” Like many appellees before it, Schneider Electric

merely included a “request” at the end of its merits brief. As

we have observed before, “to be entitled to such fees [an ap-

pellee] would have had to ask for them in a separate motion

… which [it] failed to do.” Hoyt v. Benham, 813 F.3d 349, 356

(7th Cir. 2016), citing Heinen v. Northrop Grumman Corp., 671

F.3d 669, 671 (7th Cir. 2012). And we cannot help but note the

irony inherent in a party’s procedurally improper request that

the court sanction an opposing party for failing to comply

with other procedural rules. See, e.g., Northern Illinois Telecom,

850 F.3d at 888–89 (reversing award of Rule 11 sanctions im-

posed after moving party failed to comply with required

warning-shot/safe-harbor procedure under Rule 11(c)(2));

Heinen, 671 F.3d at 671 (“this court is not inclined to award

Nos. 17-1645 & 17-1786 13

sanctions in favor of a party that cannot be bothered to follow

the rules itself”). While Rule 38 authorizes the court to impose

sanctions on its own initiative (after giving the potential target

an opportunity to respond), the better course here is to signal

as clearly as we can that this case should be over and done

with.

Conclusion

The district court did not abuse its discretion in denying

relief under Rule 60 or in imposing sanctions under Rule 11.

The rulings of the district court are AFFIRMED.