Bennie Kennedy v. Schneider Electric , formerly known as SQUARE D COMPANY

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-1645 & 17-1786
BENNIE KENNEDY,
Plaintiff-Appellant,
and
J OHN H. D AVIS ,
Respondent-Appellant,
v.
SCHNEIDER ELECTRIC ,
formerly known as SQUARE D C OMPANY,
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.
____________________
A RGUED J ANUARY 10, 2018 — D ECIDED J UNE 19, 2018
____________________

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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

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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”

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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-

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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

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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).

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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

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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

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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.

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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.

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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

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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

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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.

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