# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted October 23, 2020 *

Decided October 26, 2020

Before

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 20-1338

KEVIN E. CARTER, Plaintiff-Appellant

,

v

.

CVS PHARMACY, INC., Defendant-Appellee

. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 18 C 1482

Virginia M. Kendall, J udge

.

O R D E R

Kevin Carter moved for relief from a judgment dismissing his lawsuit against his former employer, CVS, for workplace se xual harassment and discrimination. The district court, which had granted the employer’s motion to compel arbitration of the claims, denied the motion. Because the dist rict court did not abuse its discretion in

* We have agreed to decide the case with out oral argument be cause the briefs and record adequately present the facts and lega l arguments, and oral argument would not significantly aid the court. F ED

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. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 20-1338 Page 2

rejecting Carter’s allegations of a conspiracy to prevent him from pursuing arbitration, we affirm.

Carter first pursued his claims by filing a charge with the Illinois Department of Human Rights in 2017. After wi thdrawing from mediation, an d receiving a right-to-sue notice, he filed a federal complaint cl aiming a hostile work environment, discrimination, and retaliation based on hi s sex and sexual orientation, as well as underpayment of wages. The district court recruited counsel for Carter. CVS then moved to dismiss the complaint based on a mandatory arbitration agreement that Carter had agreed to when he was hired. The district court ruled that a binding and enforceable arbitratio n agreement existed; it dismis sed the suit and entered final judgment on January 16, 2019. Seven months later, Carter appealed. We found his appeal untimely under F ED

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. P. 4(a)(1)(A) and dismissed it for lack of jurisdiction. Carter v. CVS Pharmacy , No. 19-2511 (7th Cir. Sept. 17, 2019).

In the meantime, Carter had turned to arbitration, but he waited two months after his lawsuit was dismissed to file a demand, though he had just eight days left on the clock. Carter blamed his lawyer and CV S for missing the arbitration deadline, and, in January 2020, he moved to present “new evid ence” in his federal suit. He alleged that they had conspired to prevent him from pursuing arbitration by wit hholding a copy of the arbitration agreement until it was too la te to file a demand . The district court construed this as a motion for relief from th e judgment based on ne w evidence or fraud,
F ED

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. P. 60(b)(2)–(3), and determined that Ca rter’s own exhibits showed that his lawyer had received the agreement in Au gust 2018, six months before he filed his untimely arbitration demand in March 2019. The agreement was also appended to CVS’s October 2018 reply brief in support of it s motion to compel ar bitration. The court ruled that Carter presented no evidence that his lawyer had collude d with CVS to keep the agreement from him, or that lacking a copy of the agreement prevented him from filing his demand. Deeming Carter’s allegations of a conspiracy “wild” and “outlandish,” the court denied Cart er’s motion on February 3, 2020.

Carter now appeals both the dismissal of his case and the denial of his post-judgment motion. The appeal is timely solely with respect to the latter ruling, however. We dismissed his first appeal be cause the August 5, 2019, notice of appeal came far too late to challenge the judgment of January 16, 2019. It follows that the notice of appeal of February 25, 2020, is also untimely to appeal that same judgment; the ruling on the Rule 60(b) motion, filed a year after the dismissal, did not restart the clock as to the underlying judgment. Bell v. McAdory , 820 F.3d 880, 883 (7th Cir. 2016) (“[A]nNo. 20-1338 Page 3

appeal from the denial of a motion under Ru le 60(b) does not allo w the court of appeals to address the propriety of the original ju dgment, for that woul d be equivalent to accepting a jurisdictionally untimely appeal.”).

We therefore consider only whether the district court abused its discretion in denying Carter’s post-judgment motion. Banks v. Chicago Bd. of Educ. , 750 F.3d 663, 667 (7th Cir. 2014). Under this deferential standa rd, Carter must show that “no reasonable person could agree with the decision to deny relief.” Eskridge v. Cook Cty. , 577 F.3d 806, 808–809 (7th Cir. 2009) (internal quotation marks omitted).

Rule 60(b) allows relief from a ju dgment where the movant can show “compelling and extraordinary circumstances,” including newly discovered evidence or fraud. Dolin v. GlaxoSmithKline LLC , 951 F.3d 882, 891 (7th Cir. 2020); see also F ED

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. P. 60(b)(2)–(3). Here, the district cour t reasonably concluded that Carter had demonstrated neither.

First, Carter’s motion provided no new facts that would justify revisiting the judgment. Rule 60(b)(2) requires “evidence that, with reasonable diligence, could not have been discovered in time” for a moti on under Rule 59. As Carter’s evidence consisted entirely of corresp ondence between his lawyer an d CVS that occurred before CVS moved to dismiss in September 2018, it added nothing to the record. Gleason v. Jansen , 888 F.3d 847, 853 (7th Cir. 2018) (“[E]vidence that was available at all times...is not ‘newly discovered’” under Rule 60(b)(2).).

Second, as the district cour t concluded, Carter’s allegations of fraud on the court were based on an implausible, unsupporte d account of a conspiracy to prevent him from enforcing his rights. A party alleging fraud on the court “must demonstrate that the fraud prevented it from fully and fa irly presenting a meritorious claim.” Philos Techs., Inc. v. Philos & D, Inc ., 802 F.3d 905, 917 (7th Cir. 2015) . Carter did not show that anyone “corrupt[ed] the judi cial process” in his case. Kennedy v. Schneider Elec ., 893 F.3d 414, 419 (7th Cir. 2018) (citation omitted) (int ernal quotation marks omitted). On appeal, he reiterates the same allegations he made in his Rule 60(b) motion with no more substantiation. In any case, his suggestion of in terference with his ability to file a timely arbitration demand does not call into question the decision that federal court is not the proper forum for his claims , so it would not be grounds for vacating the order compelling arbitration.

AFFIRMED