N OTE : This disposition is nonprecedential.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

______________________
G ORDON G RAVELLE , Thunder Bay, Ontario, Canada

, pro se.

A LBERT P. A LLAN , Allan Law Firm, PLLC, Charlotte, NC, for defendant

- appellee.

______________________
Before N EWMAN , C LEVENGER , and T ARANTO , Circuit Judges

. Case: 20-1370 Document: 38 Page: 1 Filed: 08/04/2021GRAVELLE v. KABA ILCO CORPORATION 2

P ER C URIAM

. 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 merit s 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 I lco 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, w e 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 vac ated 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, t he 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) ( Fee s 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 rec onsideration of the March 16, 2018 order. The court denied Case: 20-1370 Document: 38 Page: 2 Filed: 08/04/2021GRAVELLE 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 t hat the district courtshould have excused the lateness of his March 19, 2018 filing (based on excusable neglec t) 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 deliver y 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 atte nd 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) becausehis Rule 60(b) motion was untimely and failed to demonstrate that he ha d a meritorious defense to the award of attorneys’ fees. Id. at *2

– 3

. The court therefore did not Case: 20-1370 Document: 38 Page: 3 Filed: 08/04/2021GRAVELLE v. KABA ILCO CORPORATION 4

“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).

IIWe 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 revi ew 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 otherthings, “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 specif ic 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 o f 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 Case: 20-1370 Document: 38 Page: 4 Filed: 08/04/2021GRAVELLE v. KABA ILCO CORPORATION 5

March 16, 2018 Fees Enti tlement 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 pro ceeding,” 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 (“T he addition of the qualifying word ‘ final ’ emphasizes the character of the judgments, orders or pr oceedingsfrom 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 jus tice 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.3 d 1292, 1303

– 04 (Fed. Cir. 2019). There was no finality until the district
court issued its August 8, 2019 order determin ing the amount of fees owed

— more than a year after the March 16, 2018 order

. The Fourth Circuit has recognized that “Rule60(b) [is] not available for relief from an interlocutory order” and that Rule 54(b) provides the avenue for such relief. Fay et teville Investors v. Commercial Builders, Inc. , 936 F.2d 1462, 1469

– 70 (4th Cir. 19 91); 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). Case: 20-1370 Document: 38 Page: 5 Filed: 08/04/2021GRAVELLE v. KABA ILCO CORPORATION 6

Any error rega rding 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 (a pplying the standard under Rule 54(b) for reconsideration of interlocutory orders). Although Mr. Gravelle could not have appealed th e interlocutory Fees Entit lement 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 ha d passed

, see 28 U.S.C. § 2107 (providing 30 days to appeal following entry of a judgment or order), and file d 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 su bstitute 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) moti on, 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, t he district court determin ed that Mr. Gravelle failed to present “ a meritorious defense ,” Wells Fa rgo , 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” Case: 20-1370 Document: 38 Page: 6 Filed: 08/04/2021GRAVELLE v. KABA ILCO CORPORATION 7

and stated that he would , if permitted, give “substantially justified reason[s]” for not disclos ing 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. A lton 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 t o the motion. W e 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 Case: 20-1370 Document: 38 Page: 7 Filed: 08/04/2021