After losing summary judgment motion, plaintiff files Rule 60 motion and is sanctioned


The plaintiff sued his employer for defamation and tortious interference with an economic expectancy. After the defendant obtained summary judgment on all claims, plaintiff moved to vacate the adverse ruling with a Rule 60 motion. The motion, which appears to have contained highly inflammatory assertions, drew a Rule 11 sanctions motion, which the Magistrate Judge granted. The explanation:

Plaintiff’s motion sought to set aside the judgment for fraud on the court. Out of the many assertions that Plaintiff made in support of his Motion to Set Aside the Judgment, only three of the contentions maintained that someone had taken an action that, if true, would possibly rise to the level of fraud on the court. These assertions are:

(1) Defendant’s counsel submitted documents to the Court that Defendant’s counsel knew to contain perjured statements;

(2) Defendant’s counsel submitted bogus documents to the Court;

(3) Defendant’s counsel made false statements to the Court.Plaintiff also, in a conclusory manner, stated that he had shown an unconscionable plan to improperly influence the Court’s decision on summary judgment. Out of these assertions and conclusory statement, only the first assertion—that Defendant’s counsel knowingly submitted perjured materials to the Court—was supported by substantial argument. Plaintiff did not identify any documents that he purported to be bogus, and the Court, in its summary judgment ruling, already resolved the issue—in Defendant’s favor—of asserted false statements made by Defendant’s counsel.

Though the assertion regarding knowing submission of perjury was supported with argument, the argument was insufficient. In essence, Plaintiff argued that there were statements in deposition testimony and in a declaration that could not be true because the deponent and declarant should have known other information or because the deponent knew little about proprietary information, and proprietary information was deponent’s stated motivation for contacting PSC. Plaintiff’s argument for fraud on the court lacked evidentiary support because there is no evidence that Defendant’s counsel knew the statements to be perjured and because the arguments that the statements must be perjured are logically flawed.

Plaintiff’s counsel signed the Rule 60(d)(3) Motion and presented it to the Court. Had Plaintiff’s counsel made a reasonable investigation of the facts and law necessary to support a motion to set aside judgment for fraud on the court, he would have found that Plaintiff’s Motion was not warranted by existing law. Plaintiff’s counsel made no non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law. Pursuant to Rule 11(c), sanctions are warranted.

Defendant requests that it be awarded its reasonable costs and attorney fees incurred in responding to the Motion to Set Aside the Judgment and in bringing the instant Motion for Sanctions. The Court finds that these sanctions “suffice[ ] to deter repetition of the conduct or comparable conduct by others similarly situated,” Fed. R. Civ P. 11(c)(4), and grants the request. The sanction is imposed on Plaintiff’s counsel, John H. Davis, and not Plaintiff. See id. at 11(c)(5)(A) (“The court must not impose a monetary sanction . . . against a represented party for violating Rule 11(b)(2) . . . .”); see also id. at 11(c)(1) (“[T]he court may impose an appropriate sanction on any attorney . . . that violated the rule.”).

Comment: the lawyer who made those assertions can expect to receive an ethics inquiry from his state bar regulator.

Source: Kennedy v. SCHNEIDER ELECTRIC, Dist. Court, ND Indiana 2017 – Google Scholar

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