[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 10037 Non

- Argument Calendar

________________________ D.C. Docket No. 0:15

- cv - 61446

- BB

CIRCUITRONIX, LLC , Plaintiff

– Appellant,

versus SUNNY KAPOOR, ET AL. , Defendant

– Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (August 21, 2019) Case: 19-10037 Date Filed: 08/21/2019 Page: 1 of 72 Before TJOFLAT , JORDAN , and N EWSOM , Circuit Judges.
PER CURIAM: Circuitronix appeals the district court’s denial of its Rule 60(b)(3) motion alleging that Sunny Kapoor fraudulently concealed documents during discovery and lied under oath at trial , and that as a result Circuitronix was denied a fair hearing. Because we conclude that the district court may have erred in its interpretation of certain provisions in the parties’ Settlement Agreement , we remand to the district court for reconsideration

. I This is the second time that this case has come before us. The parties are familiar with the facts , and we will not repeat them here except as necessary. The parties are also familiar with our prior conclusion that “ the district court did not clearly err in making the factual findings that underlie its judgment .” Circuitronix, LLC v. Kapoor , 748 F. App ’ x 242, 243 (11th Cir. 2018)

. In particular, o ur earlier decision affirmed the district court’s construction of the term “compete” in the Settlement Agreement and rejected Circuitronix’s alternative argument that Kapoor had not only sold PCBs and PCBAs as part s within power supplies but also as stand

- alone products

. Our decision did not address two separate provision s in the Settlement Agreement that barred Kapoor from (1) “solicit[ing]” any “employee, officer, director, shareholder, or agent of Circuitronix or any of its

Case: 19-10037 Date Filed: 08/21/2019 Page: 2 of 73 vendors, customers, or affiliates for a period of 5 years ” or (2) “hav[ing] any

c ontact . . . with any suppliers, customers or employees of Circuitronix.” Nor did the district court focus on th ese provision s , either in its Final Order or in its Order denying Circuitronix’s Rule 60(b)(3) motion. Because w e conclude that the few conclusions that the district court did reach regard ing to th ose provision s of t he Settlement Agreement may have been erroneous , we vacate the district court’s Order denying Circuitronix’s Rule 60(b)(3) motion and remand for reconsideration

. A Rule 60(b)(3) of the Federal Rules of Civil Procedure empowers a court to

“ vacate judgments whenever such action is appropriate to accomplish justice. ” Klapprott v. United States , 335 U.S. 601, 615 (1949) . Because m otions under Rule 60 address the discretion of the di strict court , a ppellate review is limited to whether the district court abused that discretion

. Griffin v. Swim

- Tech Corp. , 722 F.2d 677, 680 (11th Cir. 1984)

. A district court abuses its discretion when it “ applies an incorrect legal standard, follows i mproper procedures in making the determination, or makes findings of fact that are clearly erroneous. ” Anderson v. Cagle ’ s, Inc. , 488 F.3d 945, 953 (11th Cir. 2007)

. In the Order denying Circuitronix’s motion for relief , the district court concluded th at the additional evidence Circuitronix submitted purport ing to

Case: 19-10037 Date Filed: 08/21/2019 Page: 3 of 74 indicat e that Kapoor had lied to the court nonetheless did “not provide any evidence of a transaction or solicitation involving the sale of PCB or PCBA by Ei
EMS .” That conclusion re lied on the district court’s construction of the Settlement Agreement as preventing Kapoor from entering into transactions with and soliciting or contacting Circuitronix’s customers concerning defined “lines of business .” But th e phrase “lines of business” ap pears only alongside the prohibition on Kapoor entering into transactions with Circuitronix’s customers. It is absent from the provisions that restrain Kapoor from soliciting or contacting Circuitronix’s customers . We conclude that this difference may ma tter

— in that
t he “lines of business” limitation may apply only to the former provision, not to the latter

. Paragraph 3 of the Settlement Agreement has received the most attention in this litigation . It provides, as relevant here, that Kapoor “shall not . . . compete with Circuitronix, anywhere in the world ,” and that Kapoor “ acknowledges that this restriction applies to all lines of business in which Circuitronix engaged during the time period Defendant was employed by Circuitronix .” The dist rict court construed “lines of business”

— narrowly , but not abusively so per our prior opinion

— as barring Kapoor only from selling PCBs and PCBAs as stand

- alone , final product s . Kapoor remained free to sell PCBs and PCBAs as components within other final p roducts. Paragraph 4 of the Settlement Agreement goes on ,

Case: 19-10037 Date Filed: 08/21/2019 Page: 4 of 75 separately, to provide that Kapoor “shall not . . . solicit, recruit, or attempt to hire
any . . . agent of Circuitronix or any of its vendors, customers, or affiliates .” Paragraph 5 dictates , eve n more expansively, that Kapoor “shall not to [sic] have any contact , that he initiates and/or was planned, with any suppliers, customers or employees of Circuitronix.” Conspicuously absent from P aragraphs 4 and 5 is the reference to Circuitronix’s “lines of business” that appears in P aragraph 3

. According to longstanding principles of contract interpretation, that absence may well be significant. The negative

- implication canon, also known by its Latin, expressio unius est exclusio alterius , suggests that when construing a statute or contract, “ expressing one item of [an] associated group or series excludes another left unmentioned .” Chevron U.S.A. Inc. v. Echazabal , 536 U.S. 73, 80 (2002) (quoting United States v.
Vonn , 535 U.S. 55, 65 (2002 )) . As the Supreme Court recently explained in N.L.R.B. v. SW General, Inc. , “ [i] f a sign at the entrance to a zoo says ‘ come see the elephant, lion, hippo, and giraffe, ’ and a temporary sign is added saying ‘ the giraffe is sick, ’ you would reasonably ass ume that the others are in good health. ” 137 S. Ct. 929, 940 (2017) ; see also Antonin Scalia & Bryan A. Garner, Reading
Law 107 (2012). The Court has also made clear, however, that “[t] he force of any negative implication

. . . depends on context

. ” Ma rx v. General Revenue Corp. , 133 S. Ct.

Case: 19-10037 Date Filed: 08/21/2019 Page: 5 of 76 1166, 1175 (2013) . And both the Supreme Court and this Court have held, in certain circumstances , that context preclude d application of the negative implication recommended by the canon. See, e.g. , Echazabal , 536 U.S. at 79

– 8 2 ; United Dominion Indus

. , Inc. v. United States , 532 U.S. 822, 836 (2001); Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680, 703 (1991) ; United States v. Castro , 837 F.2d 441, 442

– 443 (11th Cir. 1988) (collecting cases). The can on’s application here could sway the result. Before we can properly assess the facts, we need to know whether, as a matter of pure contract interpretation, Kapoor was allowed to solicit or contact Circuitronix’s vendors, customers, or affiliates (Paragrap h 4), or to contact its suppliers, customers, or employees (Paragraph 5) so long as it did not involve the production of PCBs and PCBAs as stand

- alone, final products. The district court seemed to assume

— albeit without saying so expressly, and certainly w ithout explanation

— t hat the Settlement Agreement’s restriction s on solicitation and contact w ere , like the prohibition on competition, also limited to Circuitronix’s “lines of business .” But that limitation is not explicit in either Paragraph 4 or Paragraph 5, and the expressio unius canon may (if it applies) counsel the conclusion that it does not apply to those provisions. The reason that the answer to the interpretive question matters here is that the evidence that Circuitronix presented in support of its Rule 60(b)(3) motion

Case: 19-10037 Date Filed: 08/21/2019 Page: 6 of 77 suggests that Kapoor did solicit and contact Circuitronix’s customers concerning PCBs and PCBAs

— repeatedly. I f Kapoor was allowed to do so under the Settlement Ag reement

— because P aragraph 3’s restriction to all of Circuitronix’s “lines of business” implicitly carried over to P aragraph s 4 and 5 , and Circuitronix therefore had to prove not just that Kapoor solicited or contacted these customers but that he did so with the intention of selling them PCBs and PCBAs as a final product

— then the district court’s Order should stand. If Kapoor was barred from doing so under the Settlement Agreement

— because (perhaps) Circuitronix was

con cerned not just with Kapoor treading on its lines of business but also with him engaging with its customers generally , and so prohibited all contact under the Settlement Agreement by using the expansive phrasing “shall not

. . . solicit . . . any” in P arag raph 4 and “shall not . . . have any contact ” in P aragraph 5 , without reservation as to its “lines of business”

— then Kapoor appears to have violated the Settlement Agreement. Because the district court did not address the interpretive question head

- on,

w e think it best to vacate that court’s order and remand for an express determination regarding the scope of the restrictions imposed by P aragraphs 4 and 5 of the Settlement Agreement. Having made that determination, the district court may of course procee d to decide whether Rule 60(b)(3) relief is appropriate. VACATED and REMANDED. Case: 19-10037 Date Filed: 08/21/2019 Page: 7 of 7