NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

GORDON GRAVELLE, OPERATING AS CODEPRO 

MANUFACTURING,

Plaintiff-Appellant

v.

KABA ILCO CORPORATION,

Defendant-Appellee

______________________

2020-1370

______________________

Appeal from the United States District Court for the 

Eastern District of North Carolina in No. 5:13-cv-00642-

FL, Judge Louise Wood Flanagan.

______________________

Decided: August 4, 2021

______________________

GORDON GRAVELLE, Thunder Bay, Ontario, Canada, 

pro se.

 ALBERT P. ALLAN, Allan Law Firm, PLLC, Charlotte, 

NC, for defendant-appellee.

______________________

Before NEWMAN, CLEVENGER, and TARANTO, Circuit 

Judges.

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2 GRAVELLE v. KABA ILCO CORPORATION

PER CURIAM.

Gordon Gravelle filed this case against Kaba Ilco Corp. 

(Kaba), alleging federal- and state-law wrongs. The district court entered judgment against him on the merits and 

awarded attorneys’ fees against him. After that award became final without his filing an appeal, he filed a motion, 

under Federal Rule of Civil Procedure 60(b), for relief from 

the court’s fee award. The court denied the motion. Gravelle v. Kaba Ilco Corp., No. 5:13-cv-00642, 2019 WL 

6851605 (E.D.N.C. Dec. 16, 2019) (Rule 60(b) Order). On 

Mr. Gravelle’s appeal, we affirm the denial of the Rule 

60(b) motion.

I

Mr. Gravelle asserted three causes of action against 

Kaba under the Patent Act, the Lanham Act, and North 

Carolina law. The district court granted summary judgment in Kaba’s favor on the merits of the claims and also 

awarded attorneys’ fees to Kaba. When Mr. Gravelle appealed, we affirmed the summary judgment in Kaba’s favor, but we vacated the fee award and remanded for 

reconsideration of the fees issue. Gravelle v. Kaba Ilco 

Corp., 684 F. App’x 974 (Fed. Cir. 2017).

On remand, Kaba filed a new motion for fees. When no 

response from Mr. Gravelle had arrived at court by the due 

date, the district court granted the motion for attorneys’ 

fees in part, finding that Kaba was entitled to fees for prevailing on the federal claims (but not the state-law claim), 

but leaving the amount of fees to be determined later. 

Gravelle v. Kaba Ilco Corp., No. 5:13-cv-00642, 2018 WL 

10320623 (E.D.N.C. Mar. 16, 2018) (Fees Entitlement Order).

Three days later, on March 19, 2018, the court received 

Mr. Gravelle’s untimely response to Kaba’s motion. The 

court construed the untimely filing as a motion for reconsideration of the March 16, 2018 order. The court denied 

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GRAVELLE v. KABA ILCO CORPORATION 3

the motion, rejecting Mr. Gravelle’s argument that he was 

the true prevailing party in the case. Order, Gravelle v. 

Kaba Ilco Corp., No. 5:13-cv-00642 (E.D.N.C. Nov. 2, 2018), 

ECF No. 111 (Order on Motion to Reconsider).

Kaba then made a submission detailing the amount of 

fees it claimed. Mr. Gravelle did not respond to the submission. On August 8, 2019, the court entered an order 

awarding $68,393.49 in attorneys’ fees to Kaba. Gravelle 

v. Kaba Ilco Corp., No. 5:13-cv-00642, 2019 WL 7584527, 

at *5 (E.D.N.C. Aug. 8, 2019) (Final Fees Order).

On November 1, 2019, Mr. Gravelle filed the Rule 60(b) 

motion at issue now. He sought relief from the court’s 

grant of attorneys’ fees on the ground that the district court 

should have excused the lateness of his March 19, 2018 filing (based on excusable neglect) and therefore, in deciding 

the question of entitlement to fees, should have treated the 

arguments in that filing simply as a response to Kaba’s motion for fees, not as a motion for reconsideration (for which 

his burden was heavier) of the already-entered Fees Entitlement Order of March 16, 2018. Appx. 28–29. The lateness of arrival of the March 19, 2018 filing, he said, was 

caused by a delivery error. In the Rule 60(b) motion, Mr. 

Gravelle also sought leave to supplement the March 19, 

2018 filing to address why fees were not appropriate—specifically to provide “substantial justification” for his litigation behavior, such as his failure to attend a required 

deposition, which the court considered in granting fees. He 

merely sought leave to present such justifications; he did 

not provide them in the Rule 60(b) motion itself.

On December 16, 2019, the district court denied Mr. 

Gravelle’s motion. Rule 60(b) Order, 2019 WL 6851605, at 

*1. The court determined that Mr. Gravelle failed to satisfy 

the threshold conditions for relief under Rule 60(b) because 

his Rule 60(b) motion was untimely and failed to demonstrate that he had a meritorious defense to the award of 

attorneys’ fees. Id. at *2–3. The court therefore did not 

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4 GRAVELLE v. KABA ILCO CORPORATION

“address whether the mailing delay constitutes excusable 

neglect.” Id. at *3 n.2.

Mr. Gravelle timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

II

We review a district court’s denial of a Rule 60(b) motion under the law of the regional circuit, here the Fourth 

Circuit. Rembrandt Vision Techs., L.P. v. Johnson & Johnson Vision Care, Inc., 818 F.3d 1320, 1324 (Fed. Cir. 2016). 

We thus review the denial for an abuse of discretion. Wells 

Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 

295, 299 (4th Cir. 2017). We “do not review the merits of 

the underlying order but rather only whether the movant 

satisfied the requirements for Rule 60(b) relief.” Id.

Rule 60(b) allows a court to “relieve a party . . . from a 

final judgment, order, or proceeding” for, among other 

things, “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b). A party must first demonstrate “(1) timeliness, (2) a meritorious defense, (3) a lack 

of unfair prejudice to the opposing party, and (4) exceptional circumstances.” Wells Fargo, 895 F.3d at 299. “After 

a party has crossed this initial threshold, [it] then must 

satisfy one of the six specific sections of Rule 60(b).” Id.

(alteration in original) (internal quotation marks omitted). 

Here, the district court determined that Mr. Gravelle failed 

to meet the first two threshold requirements.

As to timeliness, the district court, noting Mr. Gravelle’s reliance on a ground stated in Rule 60(b)(1) (“excusable neglect”), invoked Rule 60(c)(1), which provides that a 

Rule 60(b) motion on that ground must be made “no more 

than a year after the entry of the judgment or order or the 

date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Mr. Gravelle filed his Rule 60(b) motion on November 1, 2019. The 

district court, agreeing with Kaba, concluded that the 

starting point for the one-year clock was the district court’s 

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GRAVELLE v. KABA ILCO CORPORATION 5

March 16, 2018 Fees Entitlement Order, because “the mailing delay, which forms the basis of [Mr. Gravelle]’s excusable neglect claim, affected his ability to timely file before 

the court’s March 16, 2018[] order.” Rule 60(b) Order, 2019 

WL 6851605, at *2. The Rule 60(b) motion was filed far 

more than one year after March 16, 2018, the district court 

concluded, and was therefore untimely under Rule 60(c)(1).

The district court’s reasoning runs into a problem. Under Rule 60 and Fourth Circuit law, Mr. Gravelle could not 

have filed a Rule 60(b) motion within a year of the court’s 

March 16, 2018 order. Rule 60(b) applies only to a “final

judgment, order, or proceeding,” not to interlocutory orders. Fed. R. Civ. P. 60(b) (emphasis added); see also Fed. 

R. Civ. P. 60(b) advisory committee’s note to 1946 amendment (“The addition of the qualifying word ‘final’ emphasizes the character of the judgments, orders or proceedings 

from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of 

the rule, but rather they are left subject to the complete 

power of the court rendering them to afford such relief from 

them as justice requires.”). The March 16, 2018 Fees Entitlement Order was not a final order on attorneys’ fees, but 

was interlocutory, because it merely resolved entitlement, 

not the amount. See Elbit Systems Land & C4I Ltd. v. 

Hughes Network Systems, LLC, 927 F.3d 1292, 1303–04 

(Fed. Cir. 2019). There was no finality until the district 

court issued its August 8, 2019 order determining the 

amount of fees owed—more than a year after the March 16, 

2018 order. The Fourth Circuit has recognized that “Rule 

60(b) [is] not available for relief from an interlocutory order” and that Rule 54(b) provides the avenue for such relief. 

Fayetteville Investors v. Commercial Builders, Inc., 936 

F.2d 1462, 1469–70 (4th Cir. 1991); see also, e.g., State Nat’l 

Ins. Co. v. County of Camden, 824 F.3d 399, 406 (3d Cir. 

2016); McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701–

02 (5th Cir. 2014); Kapco Mfg. Co. v. C&O Enters., Inc., 773 

F.2d 151, 153–54 (7th Cir. 1985).

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6 GRAVELLE v. KABA ILCO CORPORATION

Any error regarding Rule 60(c)(1), however, is harmless, as denial of Mr. Gravelle’s Rule 60(b) motion was correct regardless. Mr. Gravelle’s motion addresses how the 

district court considered his March 19, 2018 filing—as a 

motion to reconsider, not as an ordinary (but excusably 

late) response to Kaba’s motion for fees. See Order on Motion to Reconsider at 2–3 (applying the standard under 

Rule 54(b) for reconsideration of interlocutory orders). Although Mr. Gravelle could not have appealed the interlocutory Fees Entitlement Order or interlocutory Order on 

Motion to Reconsider when issued, he could have appealed 

them once final judgment was entered on attorneys’ fees on 

August 8, 2019. Mr. Gravelle did not do so, but instead 

waited until after the time for an appeal had passed, see 28 

U.S.C. § 2107 (providing 30 days to appeal following entry 

of a judgment or order), and filed a Rule 60(b) motion. Having failed to appeal the district court’s order after it became 

final, however, Mr. Gravelle cannot use Rule 60(b) as a substitute to challenge the merits of the order. See, e.g., 

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 

270–71 (2010); Wells Fargo, 859 F.3d at 300 (holding a Rule 

60(b) motion to be untimely after the movant failed to 

timely appeal); see also McCulloch v. Sec’y of Health & 

Hum. Servs., 923 F.3d 998, 1001 (Fed. Cir. 2019) (“To rely 

on Rule 60(b) here would be to use it simply as a substitute 

for appeal to seek a change that could have been sought at 

the time that the appeal opportunity was available but bypassed.”). For that reason, Mr. Gravelle did not present his 

excusable-neglect claim, which he first raised in his Rule 

60(b) motion, until it was too late.

In any event, the district court’s denial of the Rule 60(b) 

motion must be affirmed for an independent reason. Timeliness aside, the district court determined that Mr. Gravelle failed to present “a meritorious defense,” Wells Fargo, 

859 F.3d at 299, to the award of attorneys’ fees. In his Rule 

60(b) motion, he merely requested “leave to supplement his 

prior opposition papers to Kaba’s motion for attorney fees” 

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GRAVELLE v. KABA ILCO CORPORATION 7

and stated that he would, if permitted, give “substantially 

justified reason[s]” for not disclosing documents or attending his deposition. Appx. 35. The district court faulted him 

for not providing the justifications for these actions in the 

motion itself. See Rule 60(b) Order, 2019 WL 6851605, at 

*2 (citing Compton v. Alton S.S. Co., 608 F.2d 96, 102 (4th 

Cir. 1979)). On appeal, Mr. Gravelle argues that he filed 

an affidavit that supports his meritorious defense. See

Gravelle Br. at 1–2. But he filed that affidavit, not with 

his motion, but only after Kaba responded to the motion. 

We cannot say that the court abused its discretion in not 

considering the submission made only at that stage. See 

Rule 60(b) Order, 2019 WL 6851605, at *2.

III

For the foregoing reasons, we affirm the district court’s 

order.

The parties shall bear their own costs.

AFFIRMED

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