United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 _____________

 No. 97-2587

 _____________

Lori D. Greiner; Mona Belle Wulff, *

suing as Mona B. Wulff; Kimberly Jo *

Salo; Joanne Elaine Hyatt, suing as *

Joanne E. Hyatt; Shelly Marie Ott; *

Robin Ann Barbeau, *

*

Plaintiffs - Appellants, *

*

v. *

*

City of Champlin; Gene H. Kulander, * Appeals from the United States

Champlin Chief of Police; Allen Bruns, * District Court for the

Champlin Police Sgt.; Robert L. * District of Minnesota.

Penney, Champlin Police Officers; *

Jolene Sander, Champlin Police *

Officer, *

*

Defendants - Appellees. *

 _____________

 No. 97-2810

 _____________

Robert A. Hill; Robert Hill & *

Associates, Ltd.; *

*

Appellants, *

*

Lori D. Greiner; Mona Belle Wulff; *
Lori D. Greiner, Mona B. Wulff, Shelly M. Ott, Joanne E. Hyatt, Kimberly Jo 1

Salo, and Robin A. Barbeau. 

The Honorable Michael Davis, United States District Judge for the District of 2

Minnesota.

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Kimberly Jo Salo; Joanne Elaine Hyatt; *

Shelly Marie Ott; Robin Ann Barbeau, *

*

Plaintiffs, *

v.

*

City of Champlin; Gene H. Kulander, *

Champlin Chief of Police; Allen Bruns, *

Champlin Police Sgt.; Robert L. *

Penney, Champlin Police Officers; *

Jolene Sander, Champlin Police *

Officer, *

*

Defendants - Appellees. *

_____________

 Submitted: April 17, 1998

 Filed: August 10, 1998

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Before BEAM, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

_____________

JOHN R. GIBSON, Circuit Judge.

The Greiner appellants and their lawyer, Robert A. Hill, with his firm Robert

1

Hill & Associates, Ltd., appeal the district court's entry of judgment against them on 2
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their Rule 60(b), Fed. R. Civ. P., action to reopen their case. They also appeal the

district court's award of sanctions against them. We held earlier that the appellees in

this case were entitled to qualified immunity on the Greiner appellants' claims in the

underlying civil rights case, Greiner v. City of Champlin, 27 F.3d 1346 (8th Cir. 1994),

with the exception of appellant Shelly Ott's Minnesota Human Rights Act claim in

connection with an act of Officer Allen Bruns. That claim was tried to a jury, and Ott

lost. The Greiner appellants then brought this action to reopen their case on the ground

of fraud on the court, alleging that the appellees wrongfully withheld a psychological

report on an appellee other than Bruns. The district court entered judgment against the

appellants because the report was not relevant to the qualified immunity issue on which

they lost their case. The court also entered sanctions against Attorney Hill for violating

a protective order concerning the psychological report and for his role in contacting a

defendant who was represented by counsel. The Greiner appellants and their attorney

appeal. They contend that they have made a showing of fraud on the court, even if the

report the appellees allegedly withheld would not have changed the outcome of their

underlying case, and they contend that the court did not follow the procedures

prescribed in Rule 11, Fed. R. Civ. P., in awarding sanctions against them. We affirm

both orders.

I.

The appellants denominate this action as one brought under Rule 60(b), although

it actually appears to be an equitable action for fraud on the court. See Hazel Atlas

Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). The district court had earlier

denied Rule 60(b) relief because the appellants failed to bring their motion within the

one-year time period for Rule 60(b)(3) motions. The appellants therefore bring this

independent action in reliance on the savings clause in Rule 60(b), which states that

Rule 60(b) does not preempt a court's power to entertain an action for fraud on the

court. The district court held that the report which was allegedly withheld was

irrelevant to the theories on which the case against the officer in question was decided.
Monell v. Department of Social Services, 436 U.S. 658 (1978). 3

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As to the Monell claims against the City defendants, the court held that the report was 3

cumulative, since the appellants had independent knowledge of a previous allegation of

excessive force by the officer, which was discussed in the report. The appellants argue

that a party's failure to disclose evidence requested during discovery supports their claim

of fraud on the court, even if disclosure would not have changed the outcome of the

case, citing Schultz v. Butcher, 24 F.3d 626 (4th Cir. 1994).

The "fraud on the court" standard is distinct from the more general fraud standard

of Rule 60(b)(3). See 11 Charles A. Wright, et al., Federal Practice and Procedure, §

2870 at p. 415 (2d ed. 1995). "A finding of fraud on the court is justified only by the

most egregious misconduct directed to the court itself, such as bribery of a judge or jury

or fabrication of evidence by counsel . . . ." Landscape Properties, Inc. v. Vogel, 46

F.3d 1416, 1422 (8th Cir.), cert. denied, 516 U.S. 823 (1995) (quotations omitted).

Appellants have clearly not met this standard. However, much of the appellants' brief

is devoted to showing that they are entitled to relief under the standards relevant in Rule

60(b)(3) motions. Without sorting through the nuances of different types of fraud, it is

enough to say that appellants would not be entitled to relief even under the Rule

60(b)(3) cases they rely on. To prevail under Rule 60(b)(3), the movant must show by

clear and convincing evidence that his opponent engaged in a fraud or misrepresentation

that prevented the movant from fully and fairly presenting his case. See Atkinson v.

Prudential Property Co. 43 F.3d 367, 372-73 (8th Cir. 1994). Here, the psychological

report in issue was primarily character evidence, which would not be admissible under

Fed. R. Evid. 404 to prove that the officer acted in conformity with that character on the

night in question. The Greiner appellants argue that the report also contained evidence

of prior bad acts that could have been relevant under Rule 404(b). Those bad acts were

not only known to appellants, but were the subject of testimony in the Ott trial. To the

extent the psychological report was even arguably relevant, it was cumulative. The

Schultz case on which the appellants rely is
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distinguishable on numerous grounds, but the most obvious is that in Schultz the

withheld evidence was highly relevant to and probative on the theory on which the case

was decided. 24 F.3d at 630. Here, as in Atkinson, the evidence that was allegedly

withheld could not have helped the movant if it had been available at the time of trial.

Therefore, its absence did not deprive the movant of a fair trial. See Atkinson, 43 F.3d

at 373; Watkins v. Schriver, 52 F.3d 769, 772 (8th Cir. 1995). The district court did not

abuse its discretion in holding that the appellants failed to carry their burden under Rule

60(b).

II.

Attorney Hill attacks the court's award of sanctions against him and his firm on

the ground that the district court did not follow the procedures outlined in Rule 11. The

court did not characterize the award as a Rule 11 award, and the court had the power

to make the award under the court's inherent power to regulate practice before it. See

Chambers v. Nasco, Inc., 501 U.S. 32, 43 (1991). 

Hill violated a protective order which required that all documents which

contained or referred to the report should be filed under seal. Hill filed the Rule 60(b)

complaint, which referred to and described the report, without assuring that it was under

seal. Hill had already been sanctioned for violating the protective order in the course

of the Ott litigation. The court has inherent power to assess attorneys' fees as a sanction

for willful disobedience of a court order. Id. at 45.

Attorney Hill was also held responsible for the action of appellants' expert

witness, who caused a third person to contact a defendant represented by counsel. The

expert witness falsely told the third person that the court had requested that he telephone

the defendant and ask him certain questions. After that third person talked with the

defendant, the expert witness wrote the district judge in this case a letter describing the

conversation. The court found that Attorney Hill was informed of the
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expert witness's intent to instigate the telephone call and took no steps to prevent this

unethical conduct. This finding is not clearly erroneous. The ex parte contact would

have constituted an ethical violation if committed by Hill himself, Minn. Rule Prof.

Cond. 4.2, and a lawyer can become responsible for the conduct of a non-lawyer

assistant if he knows of the assistant's conduct before it occurs and fails to take remedial

action. Minn. Rule Prof. Cond. 5.3(c)(2). There was also evidence before the court

that Attorney Hill contacted the third person within an hour of the conversation, seeking

to depose the person and thus memorialize the fruits of the ex parte contact. 

Not only was Attorney Hill implicated in the ex parte contact with a represented

party, but the expert falsely represented that he was conducting this irregular activity

pursuant to the court's instructions. 

These practices were evidently committed in furtherance of the case pending

before the court. The court has power to discipline attorneys who appear before it.

Chambers, 501 U.S. at 43; Harlan v. Lewis, 982 F.2d 1255, 1259 (8th Cir.), cert.

denied, 510 U.S. 828 (1993). We review the district court's award of sanctions pursuant

to its inherent power for abuse of discretion. Chambers, 501 U.S. at 55. No such abuse

appears on the record before us. 

III.

We have considered the appellants' other arguments and conclude that they

are without merit.

We affirm the judgment and order of the district court.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.