N OTE : This disposition is nonprecedential.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 M URRAY, 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

______________________

G ORDON G RAVELLE , Thunder Bay

, Ontario, Canada,

pro se.

______________________

Before M OORE , R EYNA , and C HEN , Circuit Judges.GRAVELLE v. KABA ILCO CORPORATIO N 2

P ER C URIAM

. 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 d istri ct c ourt by Mr. Gravelle naming Kaba Ilco Corp. as a defendant

. Because we see no error in the d istrict c ourt’s analysis, we affirm.

B ACKGROUND

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

- CV

- 642

- FL (“ Gravelle II ”), Mr. Gravelle allege d Kaba fal sely marketed and promoted its EZ Code key cutting machines as having “patent pending” features. He a sserted claims under the Patent Act’s false

- marking sta tute, 35 U.S.C. § 292, the false

- advertising provision of the Lanham Act, 15 U.S.C. § 1125, and Nor th Carolina’s Unfair and Deceptive Practices Act (“UDPA”)

. The di strict c ourt granted summary judgment in favor of Kaba. W e affirmed because Mr. Gravelle failed to provide “co ncrete, non

- speculative evidence of causation of an actual injury by Kaba’s false marking.” Gravelle v. Kaba Ilco Corp. , 684 F. App’x 974, 97 6– 81 (Fed. Cir. 2017). We vacated the d istrict c ourt’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 order s granting Kaba summary judgment and attorney fees. Gravelle II , ECF No. 90. While that motion was pending, he in itiated Gravelle III

. The d i strict c ourt subsequentl y denied the Rule 60(b) motion in Gravelle II as without merit. Gravelle II

, ECF No. 103.

In Gravelle III , the d istrict c ourt granted Mr. Gravelle’s motion to proceed in forma pauperis

, and it reviewed his complaint pursuant to 28 U.S.C. § 1915.G RAVELLE v. KABA ILCO CORPORATION 3

Given Mr

. Gravelle’s pro se status, the d istrict c ourt liberally construed the claims in the Gravelle III co mplaint 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 Cana dian Competition Act was barred by claim preclusion. It dismissed all claims without prej udice 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).

D ISCUSSION

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 complaint s liberally, but the complaint must st ill 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 whi ch the judgment was rendered. See 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2851 (3d ed.). Rule 60(d) pr ovides , 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:GRAVELLE v. KABA ILCO CORPORATIO N 4

(1 ) a judgment which ought not, in equity and good conscience, to be enforced; (2 ) a good defense to the alle ged cause of action on which the jud gment 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 d efendant; and (5 ) the abse nce of any adequate re medy at law.
Great Coastal Exp., Inc. v. Int’l Bhd. of Teamsters, Chau ffeurs, 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 “ co rruption of the judicial process itself” has occurred. Clev eland 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 c ourt 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 inform ation th at would have helped his case.

These allegation s do not support relief under Rule 60 (d)(1) or (d)(3). The al legation that Kaba lied to the d istrict c ourt about false marking cannot support relief under Rule 60(d)(1) because judgment was ente red

a gainst him due to a failure to prove the injuries caused by the false marking, not a failure to establish th at false marking occurred. The allegation that Kaba did not provide necessary contact information is a discovery dispute that “must be resolved dur ing the initial trial” rather than an independent action. Cleveland Demol ition , 827 F.2d at 98 7. Neither allegation constitute s fraud on the court. See Great Coastal , 675 F.2d at 1356G RAVELLE 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 no t pled facts to support such a claim

. We affirm the d istrict c ourt’s dismissal of Mr. Gravelle’s Rule 60 claims.
UDPA, the Patent Act, the Lanham Act Claims

The d istrict c ourt 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 review ed 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) . W e “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 partic ular 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.” Pu eschel , 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

. T he same facts ar e alleged, and the same statutory provisions are being asserted. While the other named defendants, Mr

. Belflower and Mr. Murray

, were not named in Gra v-GRAVELLE v. KABA ILCO CORPORATIO N 6

elle II

, we see no error in the d istrict c ourt’s determin ation 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 attempt ed to dismiss Gravelle II in order to bring a new action naming Mr. Belflower and Mr. Mur ray as defendants. We see no reason for doing so in these circumstances. He altern atively argues that because he alleges the defendants are joint tortfeasors, claim preclusion should not apply. We disagree. While not all joint tortfeasors are in privit y, 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 d istrict c ourt’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 d istrict c ourt appropriately determined this claim was precluded under the rule against claim splitting , and we affirm its dismissal of that cla im

. C ONCLUSION

We have considered Mr. Gravelle’s remaining arg uments and find them unpersuasive. For the foregoing reasons, the decision of the district c ourt is affirmed

. AFFIRMED