## 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. Gre iner, 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. -2- 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

_____________ Before BEAM, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t 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 2-3-

the ir Rule 60(b), Fed. R. Civ. P., action to reopen their case. They also appeal th e d i strict court's award of sanctions against them. We held earlier that the appellees in this cas e were entitled to qualified immunity on the Greiner appellants' claims in th e underlying civil rights case, Greiner v. City of Champlin , 27 F.3d 1346 (8th Cir. 1994), withthe exception of appellant Shelly Ott's Minnesota Human Rights Act claim i n 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 reop en their case on the ground o f fraud on the court, alleging that the appellees wrongfully withheld a psychological report on an appellee other than Bruns. The distr ict court entered judgment against the appellants because the report was not relevant to the qualifi ed immunity issue on which they lost their case. The court also entered sanctions agains t Attorney Hill for violating a protectiveorder concerning the psychological report and for his role in contacting a defendant who was represented bycounsel. 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 procedure s 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 R ule 60(b), although it actually appears to be an equitable action for fraud on the court. See Hazel Atla s Glass Co. v. Hartford-Empire Co. , 322 U.S. 238 (1944). The district court had earlier denied R ule 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 thi s independen t

action in reliance on the savings clause in Rule 60(b), which states that Rule 6 0(b) does not preempt a court's power to entertain an action for fraud on th e court. The district court held that the report which was allegedly withheld wa s irrelevant to the theories on which the case aga inst the officer in question was decided.Monell v. Department of Social Services , 436 U.S. 658 (1978). 3 -4- As to the Monell claims against the City defendants, the court held that the report was 3 cumulative, since the appellants had indepe ndent knowledge of a previous allegation of excessive force by the officer, which was di scussed in the report. The appellants argue that a party's failure to disclose evidence requested during discovery suppo rts their claim of fraud o n the court, even if disclosure would not have changed the outcome of th e case, citing Schultz v. Butcher , 24 F.3d 626 (4th Cir. 1994). The "fraud on the court" standard is distinct from the more ge neral fraud standard of R ule 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 fabri cation of evidence by counsel . . . ." Landscape Properties, Inc. v. Vogel , 4 6 F.3d 1416, 1422 (8th Cir.), cert. denied , 516 U.S. 823 (1995) (quotations omitted)

. Appellant s have clearly not met this standard. However, much of the appellants' brief is devoted to showing that they are entitled to relief under th e 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 Rul e 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 Proper

ty Co. 43 F.3d 367, 372-73 (8th Cir. 1994). Here, the psychological report in issue was primarily character e vidence, which would not be admissible under Fed. R. Evid. 404 to prove that the officer acted in conformity w ith that character on the night in question. The Greiner app ellants 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 extentthe psychological report was even arguably relevant, it was cumulative. Th e Schultz case on which the appellants rely is-5-

distinguis hable on numerous grounds, but the most obvious is that in Schultz th e withheld evidence was highly relevant to and proba tive on the theory on which the case was decided. 24 F.3d at 630. Here, as in Atkinson , the evidence that was allegedl y wi thheld 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 dis trict court did not abuse its discretion in holding that the appellants fa iled 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 vio lated a protective order which required that all documents whic h contained or refer

red to the report should be filed under seal. Hill filed the Rule 60(b) complaint, which referred to and described the report, without assur ing 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 atto rneys' 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 contac t a defendant represented by counsel. The expert witness falsely told the third person that the court had requested t hat he telephone the defendant and ask him certain questions. After that third person talked with th e 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-6-

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 cons tituted 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-lawye r assistant if he knows of the assistant's conduct before it occurs and f ails 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 part y, 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 pendin g 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 sancti ons pursuant to its inherent power for abuse of discretion. Chamb ers , 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.-7-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.