NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

GORDON GRAVELLE,

Plaintiff-Appellant

CODEPRO KEY CORPORATION,

Plaintiff

v.

KABA ILCO CORPORATION, FRANK 

BELFLOWER, CHARLES MURRAY,

Defendants

______________________ 

2018-1937

______________________ 

Appeal from the United States District Court for the 

Eastern District of North Carolina in No. 5:17-cv-00207-

FL, Judge Louise Wood Flanagan.

______________________ 

Decided: December 10, 2018

______________________ 

GORDON GRAVELLE, Thunder Bay, Ontario, Canada,

pro se. 

 ______________________ 

Before MOORE, REYNA, and CHEN, Circuit Judges.
2 GRAVELLE v. KABA ILCO CORPORATION

PER CURIAM. 

Gordon Gravelle appeals from an order of the Eastern 

District of North Carolina dismissing his case as frivolous. 

Gravelle v. Kaba Ilco Corp., 17-CV-207-FL (“Gravelle III”). 

This is the third suit filed in the district court by 

Mr. Gravelle naming Kaba Ilco Corp. as a defendant. 

Because we see no error in the district court’s analysis, we 

affirm.

BACKGROUND

In a prior suit, Gravelle v. Kaba Ilco Corp., No. 5:13-

CV-642-FL (“Gravelle II”), Mr. Gravelle alleged Kaba 

falsely marketed and promoted its EZ Code key cutting 

machines as having “patent pending” features. He asserted claims under the Patent Act’s false-marking statute, 35 U.S.C. § 292, the false-advertising provision of the 

Lanham Act, 15 U.S.C. § 1125, and North Carolina’s 

Unfair and Deceptive Practices Act (“UDPA”). The district court granted summary judgment in favor of Kaba. 

We affirmed because Mr. Gravelle failed to provide “concrete, non-speculative evidence of causation of an actual 

injury by Kaba’s false marking.” Gravelle v. Kaba Ilco 

Corp., 684 F. App’x 974, 976–81 (Fed. Cir. 2017). We 

vacated the district court’s award of attorney fees and 

remanded for further proceedings on that issue. Id. at 

985.

On remand in Gravelle II, Mr. Gravelle filed a motion

pursuant to Federal Rule of Civil Procedure 60(b) seeking 

relief from the orders granting Kaba summary judgment 

and attorney fees. Gravelle II, ECF No. 90. While that 

motion was pending, he initiated Gravelle III. The district court subsequently denied the Rule 60(b) motion in 

Gravelle II as without merit. Gravelle II, ECF No. 103.

In Gravelle III, the district court granted 

Mr. Gravelle’s motion to proceed in forma pauperis, and it 

reviewed his complaint pursuant to 28 U.S.C. § 1915. 
GRAVELLE v. KABA ILCO CORPORATION 3

Given Mr. Gravelle’s pro se status, the district court 

liberally construed the claims in the Gravelle III complaint as: (1) seeking relief from the prior orders in 

Gravelle II pursuant to Rule 60; (2) asserting claims 

under the UDPA, the Patent Act, and the Lanham Act; 

and (3) asserting a claim under the “Competition Act of 

Canada.” It held the complaint did not assert a valid Rule 

60 claim, and any claim under the UDPA, Patent Act, 

Lanham Act, or Canadian Competition Act was barred by 

claim preclusion. It dismissed all claims without prejudice pursuant to § 1915(e)(2)(B) for failure to state a 

claim. Mr. Gravelle appeals. We have jurisdiction under 

28 U.S.C. § 1295(a)(1).

DISCUSSION

A dismissal for failure to state a claim is a procedural 

question, which we review under the law of the regional 

circuit, here the Fourth Circuit. See C&F Packing Co. v. 

IBP, Inc., 224 F.3d 1296, 1306 (Fed. Cir. 2000). The 

Fourth Circuit reviews dismissal for failure to state a 

claim under § 1915(e)(2)(B) de novo and accepts pleaded 

facts as true. Thomas v. The Salvation Army S. Territory, 

841 F.3d 632, 637 (4th Cir. 2016). It construes allegations 

in pro se complaints liberally, but the complaint must still 

contain enough facts to state a claim for relief that is 

plausible on its face. Id.

Rule 60 Claim

Rule 60 provides means for obtaining relief from a 

judgment or order. Under Rule 60(b), a party may move 

for relief from a judgment in the action in which the 

judgment was rendered. See 11 C. Wright & A. Miller, 

Fed. Prac. & Proc. Civ. § 2851 (3d ed.). Rule 60(d) provides, however, that the rule “does not limit a court’s 

power to: (1) entertain an independent action to relieve a 

party from a judgment, order, or proceeding . . .; or (3) set 

aside a judgment for fraud on the court.” A party seeking 

relief under Rule 60(d)(1) must show:
4 GRAVELLE v. KABA ILCO CORPORATION

(1) a judgment which ought not, in equity and 

good conscience, to be enforced; (2) a good defense 

to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake 

which prevented the defendant in the judgment 

from obtaining the benefit of his defense; (4) the 

absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law.

Great Coastal Exp., Inc. v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 675 F.2d 1349, 

1358 (4th Cir. 1982). In the Fourth Circuit, a judgment 

may be set aside for fraud on the court only where “corruption of the judicial process itself” has occurred. Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 

986 (4th Cir. 1987). 

Mr. Gravelle alleges two aspects of Kaba’s conduct in 

Gravelle II support Rule 60 relief. First, he alleges Kaba

lied to the district court in its answer and motion for 

summary judgment by denying all allegations of false 

marking. Second, he alleges Kaba did not provide contact 

information for certain current and former employees, 

preventing him from getting information that would have 

helped his case. 

These allegations do not support relief under 

Rule 60(d)(1) or (d)(3). The allegation that Kaba lied to 

the district court about false marking cannot support 

relief under Rule 60(d)(1) because judgment was entered 

against him due to a failure to prove the injuries caused 

by the false marking, not a failure to establish that false 

marking occurred. The allegation that Kaba did not 

provide necessary contact information is a discovery 

dispute that “must be resolved during the initial trial” 

rather than an independent action. Cleveland Demolition, 827 F.2d at 987. Neither allegation constitutes fraud 

on the court. See Great Coastal, 675 F.2d at 1356 
GRAVELLE v. KABA ILCO CORPORATION 5

(“‘[F]raud on the court’ is typically confined to the most 

egregious cases, such as bribery of a judge or juror, or 

improper influence exerted on the court by an attorney, in 

which the integrity of the court and its ability to function 

impartially is directly impinged.”). Although “[a] verdict 

may be set aside for fraud on the court if an attorney and 

a witness have conspired to present perjured testimony,” 

this is a narrow exception, Cleveland Demolition, 827 F.2d 

at 986, and Mr. Gravelle has not pled facts to support 

such a claim. We affirm the district court’s dismissal of 

Mr. Gravelle’s Rule 60 claims.

UDPA, the Patent Act, the Lanham Act Claims

The district court dismissed the rest of Mr. Gravelle’s 

claims for claim preclusion. Whether a cause of action is 

barred by claim preclusion is a question of law reviewed 

without deference. Senju Pharm. Co. v. Apotex Inc., 746 

F.3d 1344, 1348 (Fed. Cir. 2014); Pueschel v. United 

States, 369 F.3d 345, 354 (4th Cir. 2004). We “look to the 

law of the regional circuit in which the district court sits 

for guidance regarding the principles of claim preclusion,” 

but apply our own law in determining “whether a particular cause of action in a patent case is the same as or 

different from another cause of action.” Senju Pharm., 

746 F.3d at 1348. In the Fourth Circuit, a claim is barred 

by claim preclusion where there is “(1) a final judgment 

on the merits in a prior suit; (2) an identity of the cause of 

action in both the earlier and the later suit; and (3) an 

identity of parties or their privies in the two suits.” 

Pueschel, 369 F.3d at 354–55.

Mr. Gravelle’s claims under the UDPA, the Patent 

Act, and the Lanham Act are barred by claim preclusion. 

In Gravelle II there was a final judgment on the merits. 

There is an identity of the causes of action. The same 

facts are alleged, and the same statutory provisions are 

being asserted. While the other named defendants, 

Mr. Belflower and Mr. Murray, were not named in Grav-
6 GRAVELLE v. KABA ILCO CORPORATION

elle II, we see no error in the district court’s determination that they are privies of Kaba, which is named as 

defendant in both Gravelle II and Gravelle III. 

Mr. Gravelle argues we should recognize an exception to 

the general claim preclusion rule because he attempted to 

dismiss Gravelle II in order to bring a new action naming 

Mr. Belflower and Mr. Murray as defendants. We see no 

reason for doing so in these circumstances. He alternatively argues that because he alleges the defendants are 

joint tortfeasors, claim preclusion should not apply. We 

disagree. While not all joint tortfeasors are in privity, 

joint tortfeasor status does not prevent parties from being 

in privity. See Muhammad v. Oliver, 547 F.3d 874, 880 

(7th Cir. 2008). We affirm the district court’s dismissal of 

Mr. Gravelle’s claims under the UDPA, the Patent Act, 

and the Lanham Act.

Mr. Gravelle’s complaint in Gravelle II did not assert 

claims under the Canadian Competition Act. However, 

the district court appropriately determined this claim was 

precluded under the rule against claim splitting, and we 

affirm its dismissal of that claim. 

CONCLUSION

We have considered Mr. Gravelle’s remaining arguments and find them unpersuasive. For the foregoing 

reasons, the decision of the district court is affirmed. 

AFFIRMED