In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 17-1645 & 17-1786 

BENNIE KENNEDY, 

Plaintiff-Appellant, 

and 

JOHN H. DAVIS, 

Respondent-Appellant, 

v.

SCHNEIDER ELECTRIC,

formerly known as SQUARE D COMPANY, 

Defendant-Appellee. 

____________________ 

Appeals from the United States District Court for the 

Northern District of Indiana, Hammond Division. 

No. 12-CV-122 — Paul R. Cherry, Magistrate Judge. 

____________________ 

ARGUED JANUARY 10, 2018 — DECIDED JUNE 19, 2018 

____________________ 
2 Nos. 17-1645 & 17-1786 

Before WOOD, Chief Judge, and HAMILTON, Circuit Judge, 

and BUCKLO, District Judge. *

HAMILTON, Circuit Judge. In 2012, Bennie Kennedy filed a 

lawsuit against his longtime employer, Schneider Electric. In 

2014, the district court granted summary judgment for 

Schneider Electric. More than a year later, and without offering any new evidence, Kennedy’s lawyer filed a motion to set 

aside the judgment for fraud on the court, accusing Schneider 

Electric’s lawyers of suborning perjury. The district court denied that motion and exercised its discretion to impose sanctions on Kennedy’s lawyer under Rule 11. Kennedy appeals 

the denial of his motion, and his lawyer appeals the sanction 

order. We affirm both decisions. 

I. Factual Background and Procedural History 

A. The Initial Lawsuit 

Plaintiff Bennie Kennedy has decades of experience in the 

safe operation and maintenance of electric-power distribution 

equipment. From 2004 to 2010, he taught classes in electrical 

and industrial safety at an Illinois community college, Prairie 

State College. Kennedy did this teaching in addition to his 

day job with defendant Schneider Electric, whose proprietary 

power-distribution equipment he knows very well from years 

of first-hand experience. To protect its proprietary information, Schneider Electric requires its employees to obtain 

advance approval before they teach classes or submit articles 

for publication. 

 * Hon. Elaine E. Bucklo of the Northern District of Illinois, sitting by 

designation 
Nos. 17-1645 & 17-1786 3

Without obtaining Schneider Electric’s permission, in 2010 

Kennedy published two articles about power-distribution 

equipment in trade publications. Kennedy identified himself 

in these articles as a Prairie State instructor. When Schneider 

Electric’s marketing staff caught wind of these articles in July 

2010, a human resources manager contacted Prairie State to 

ask about the contents of Kennedy’s course materials, which 

she worried might have contained proprietary information. 

That fall, while reviewing the credentials of instructors expected to teach at the college the following spring, Prairie 

State officials realized that Kennedy did not possess the qualifications required to teach at the college. As Kennedy later 

admitted, he did not meet any of the three possible combinations of education and experience that would have qualified 

him to teach electrical safety classes at Prairie State. The following spring, after asking Kennedy for information about 

his credentials and reviewing his response, Prairie State decided not to rehire Kennedy as an adjunct instructor. Prairie 

State left open the possibility, though, that Kennedy could be 

reinstated in the future if he could prove that he had the required qualifications.

Almost a year later, Kennedy filed this lawsuit against 

Schneider Electric alleging defamation and malicious interference with an advantageous relationship. His complaint alleged that Schneider Electric’s human resources staff had defamed him by calling Prairie State and expressing concern 

about his course materials. Kennedy further alleged that this 

telephone call resulted in the loss of his teaching position. 

Kennedy filed the case in state court, but after his lawyer told 

Schneider Electric’s lawyer that he would “venture to guess” 
4 Nos. 17-1645 & 17-1786 

that damages would be over $75,000, Schneider Electric removed the case to the Northern District of Indiana based on 

diversity jurisdiction under 28 U.S.C. § 1332. 

Kennedy’s lawsuit survived a Rule 12 motion to dismiss 

on the pleadings, but in 2014 the district court granted Schneider Electric’s motion for summary judgment. Magistrate 

Judge Cherry, presiding with the consent of the parties under 

28 U.S.C. § 636(c), found that the evidence showed beyond 

reasonable dispute that Prairie State “decided to revoke Plaintiff’s teaching approval solely because he did not meet [Prairie 

State’s] credentialing requirements” and not because of 

Schneider Electric’s telephone call. Dkt. 49 at 15. The court entered final judgment in favor of Schneider Electric the same 

day. Kennedy did not appeal.

B. The Rule 60 Motion and Sanctions 

More than a year after judgment was entered, Kennedy 

filed a motion to set aside the judgment for fraud on the court. 

The motion invoked Federal Rule of Civil Procedure 60(d)(3), 

which does not actually authorize relief but provides that the 

rest of Rule 60 does not limit a court’s inherent power to set 

aside a judgment for fraud on the court. See Fed. R. Civ. P. 

60(d)(3); see also Fed. R. Civ. P. 60(b) & (c)(1). A motion invoking this inherent power is not subject to the one-year limit for 

motions under Rule 60(b)(3). See In re Golf 255, Inc., 652 F.3d 

806, 809 (7th Cir. 2011); Oxxford Clothes XX, Inc. v. Expeditors 

Int’l of Washington, Inc., 127 F.3d 574, 578 (7th Cir. 1997). 

Kennedy’s motion argued that summary judgment had 

been granted based on perjured deposition testimony and a 

perjured affidavit. He further asserted that Schneider Elec-
Nos. 17-1645 & 17-1786 5

tric’s lawyers knowingly submitted this allegedly perjured evidence to the district court. To support these serious accusations, Kennedy’s lawyer pointed only to discrepancies in the 

evidence that had been submitted to the district court for and 

against the original motion for summary judgment. Because 

Schneider Electric’s human resources manager could not supply a definition of “proprietary information” at her deposition, Kennedy argued that her telephone call to Prairie State 

could not actually have been for the purpose of protecting 

that information. From this shaky foundation, he proposed 

the conclusion that her testimony about her purpose must 

have been perjured. Kennedy also accused the human resources manager of lying about when she learned of his teaching activities. 

In addition, Kennedy attacked an affidavit from a Prairie 

State official as “clearly false” because it did not address the 

fact that a full accrediting review of Prairie State had occurred 

in the 2008–2009 academic year while Kennedy was teaching 

there. Kennedy also thought the declaration was perjured because it said Prairie State’s decision to revoke his teaching credentials had “no connection” to the call from Schneider Electric, yet in an email the same official had written: “I have concerns with regards to the liability of Mr. Kennedy and the college based on the conversations with [Schneider Electric].” By 

submitting these documents in support of their summary 

judgment motion, Kennedy argued, Schneider Electric’s lawyers had committed fraud on the court.1

 1 Kennedy’s lawyer made various other claims regarding counterfeit 

evidence, statements by the district court, and conflicts of interest in the 

Rule 60 motion, but failed to present specific and coherent legal arguments 
6 Nos. 17-1645 & 17-1786 

The district court denied Kennedy’s Rule 60 motion. Magistrate Judge Cherry explained that Kennedy had “failed to 

show how this rises to the level of fraud on the court” since 

the motion relied only on evidentiary discrepancies that were 

known at the time summary judgment was granted. Dkt. 72 

at 7. These arguments were available at that time and “should 

have been made in a motion to reconsider or on appeal,” not 

in a later fraud-on-the-court motion invoking Rule 60(d)(3), 

id., citing In re Golf 255, 652 F.3d at 809, which requires clear 

and convincing evidence of fraud to overturn a judgment, 

Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010). Since 

Kennedy advanced no new evidence to support his accusation that Schneider Electric’s lawyers knowingly committed 

fraud on the court, the district court also granted a motion for 

Rule 11 sanctions against Kennedy’s lawyer, John H. Davis, 

for the costs of having to defend against the Rule 60 motion. 

Dkt. 72 at 14–15; Dkt. 77 at 2 (finding defendant’s proposed 

hourly rate and number of hours reasonable and awarding 

$10,627.16). Plaintiff Kennedy and lawyer Davis appealed the 

district court’s decisions regarding the Rule 60 motion and the 

Rule 11 sanctions, respectively. 

 

on those issues to the district court. Kennedy’s briefs on appeal are no different. Consequently, those arguments are forfeited. See Fed. R. App. 

P. 28(a)(6)–(8); Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 527 (7th 

Cir. 2003) (under Rule 28 “an appellant’s argument must provide both his 

contentions and the reasons for them,” including supporting authorities) 

(internal quotation marks omitted). 
Nos. 17-1645 & 17-1786 7

II. Analysis 

A. Rule 60 Motion to Set Aside the Judgment 

We review the denial of a Rule 60 motion deferentially, for 

an abuse of discretion. McCormick v. City of Chicago, 230 F.3d 

319, 326–27 (7th Cir. 2000). As we have said often, Rule 60 relief is limited to “extraordinary” situations where a judgment 

is the inadvertent product of “special circumstances and not 

merely [the] erroneous application[] of law.” Russell v. Delco 

Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). 

We use such language most often in affirming the denial of 

relief under Rule 60. At the same time, Rule 60 gives district 

courts the power and discretion to modify their judgments 

when truly new facts come to light or when the judge recognizes an error and believes it should be corrected. Still, even 

judges exercising that flexibility must be careful not to undermine too lightly the finality of their judgments. See Mendez v. 

Republic Bank, 725 F.3d 651, 657, 660 (7th Cir. 2013) (noting 

need to “balance the availability of post-judgment relief with 

finality interests,” which is not a problem “in the rare case 

where a district judge recognizes a clear legal or factual error” 

soon after entering judgment). 

Rule 60 recognizes two types of fraud in the adversarial 

process that, if demonstrated within the proper timeframe, 

may merit relief from a final judgment. The first type is 

“fraud[,] ... misrepresentation, or misconduct by an opposing 

party,” Fed. R. Civ. P. 60(b)(3), which prevented the party 

seeking relief “from ‘fully and fairly presenting’” his meritorious case at trial. Wickens, 620 F.3d at 759 (finding that discovery violation did not amount to fraud), quoting Lonsdorf v. 

Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). Parties asserting this 
8 Nos. 17-1645 & 17-1786 

type of fraud must move for relief within one year of “the entry of the judgment or order or the date of the proceeding.” 

Fed. R. Civ. P. 60(c)(1). 

The second type is “fraud on the court,” see Fed. R. Civ. P. 

60(d)(3), which we have described as fraud “directed to the 

judicial machinery itself” and involving “circumstances 

where the impartial functions of the court have been directly 

corrupted.” In re Whitney-Forbes, Inc., 770 F.2d 692, 698 (7th 

Cir. 1985) (citations omitted). Motions seeking relief in light of 

fraud on the court can be brought at any time after judgment 

because the “conduct ... might be thought to corrupt the judicial process itself.” Oxxford Clothes, 127 F.3d at 578. Examples 

include situations where “a party bribes a judge or inserts bogus documents into the record.” Id.2 But because a “motion 

to set aside a judgment on the ground of fraud on the court 

has no deadline” and can be brought at any time under Rule 

60(d)(3) to challenge final judgments, the definition of 

“fraud” contemplated by the rule must be “defined narrowly 

lest it become an open sesame to collateral attacks.” In re Golf 

255, 652 F.3d at 809 (internal quotations and citation omitted).3

 2 In contrast, we have rejected allegations of fraud on the court where 

the record indicates “a technical violation of the rules” governing ex parte 

contacts with bankruptcy judges and “a serious infraction of those rules 

in an unrelated case.” E.g., In re Met-L-Wood Corp., 861 F.2d 1012, 1019 (7th 

Cir. 1988). 

3 Rule 60 was amended in 2007 to move parts of old subsection (b) into 

new subsections (b), (c), (d) and (e). Cases from before 2007 refer more 

generally to Rule 60(b) when discussing both general fraud and misconduct of an opposing party (now styled as a Rule 60(b)(3) matter) and fraud 

on the court (now addressed under Rule 60(d)(3)). Whether the moving 
Nos. 17-1645 & 17-1786 9

We have therefore set a high bar for what constitutes fraud 

on the court under Rule 60(d)(3). Critically for this case, the 

alleged fraud must go beyond mere discrepancies in the record evidence available at the time judgment was entered. The 

fraud must have been the kind of fraud that ordinarily could 

not be discovered, despite diligent inquiry, within one year or 

even many years. Id. We explained in Oxxford Clothes: “A lie 

uttered in court is not a fraud on the liar’s opponent if the opponent knows it’s a lie yet fails to point this out to the court. 

If the court through irremediable obtuseness refuses to disregard the lie, the party has ... a remedy by way of appeal.” 127 

F.3d at 578. 

This case presents a situation similar to Cash v. Illinois Division of Mental Health, 209 F.3d 695 (7th Cir. 2000), where the 

plaintiff lost in a Title VII bench trial. The plaintiff missed the 

deadline to file a Rule 59 motion for a new trial but later 

sought relief by filing a motion that this court labeled a Rule 

60 motion to set aside the judgment. Id. at 697. Cash argued 

that the district court mishandled and misinterpreted the evidence at the bench trial. He sought a new trial where the district court would consider the same record all over again, with 

immaterial alterations. We affirmed the district court’s denial 

of the Rule 60 motion. We explained that arguments: 

that the court wrongly excluded evidence, misinterpreted the evidence that was presented, 

and did not understand [the plaintiff’s] theory 

of the case ... cannot be shoe-horned into 

grounds for Rule 60(b) relief. The rule is not an 

 

party presents the grounds for relief as fraud or as fraud on the court, the 

same deference extends to district court rulings on such motions.
10 Nos. 17-1645 & 17-1786 

alternate route for correcting simple legal errors. Rather, it exists to allow courts to overturn 

decisions where “special circumstances” justify 

an “extraordinary remedy.” See Russell, 51 F.3d 

at 749. Cash’s appeal presents no such case. He 

simply tripped over the time clock and wants to 

be able to appeal as if he did not. Were we to 

allow appellants to follow this route, the rules 

governing the timeliness of appeal would 

quickly lose their bite, and one of the law’s primary purposes—to settle disputes finally—

would be undermined. Since Cash’s arguments 

fall outside the class of mistakes Rule 60(b) exists to correct, they fail. 

Id. at 698. This rationale applies with considerable force to a 

motion invoking Rule 60(d)(3) and alleging fraud on the 

court, a request for relief that can be brought at any time. See 

In re Golf 255, 652 F.3d at 809. 

Nothing new came to light here. As the district court 

stressed, Kennedy had the opportunity to challenge this same 

evidence on summary judgment. If the court made a mistake 

back in 2014, Kennedy could have asked for reconsideration 

and/or appealed. He did neither. Instead, after more than a 

year he alleged fraud on the court based on only the evidence 

that had been presented on the original motion for summary 

judgment. If a disappointed party could win relief through 

Rule 60(d) by recycling discrepancies in the evidentiary record, few judgments in fact-intensive civil cases would be safe. 

We affirm the denial of Kennedy’s Rule 60 motion. 
Nos. 17-1645 & 17-1786 11

B. Rule 11 Sanctions 

We also review a district court’s grant of Rule 11 sanctions 

for an abuse of discretion. Northern Illinois Telecom, Inc. v. PNC 

Bank, N.A., 850 F.3d 880, 883 (7th Cir. 2017). To succeed, parties 

challenging sanctions need to show that “the district court 

based its decision on an erroneous view of the law or a clearly 

erroneous evaluation of evidence.” Id., citing Gastineau v. 

Wright, 592 F.3d 747, 748 (7th Cir. 2010); see also Fed. R. Civ. 

P. 11(c). 

On appeal, attorney Davis summarizes his factual argument against the sanctions ruling this way: “It is redundant to 

continue discussing appeals, summary judgments, Rule 60(b) 

filings. The fact is that Appellant’s attorney did not rush to file 

a document that goes after the integrity of a fellow attorney.”

As for law, he cites a 1993 district court case from Iowa that 

chastised the lawyer there for engaging in “bickering, haranguing, ... general interference” and other examples of 

“Rambo Litigation.” See Van Pilsum v. Iowa State Univ. of Sci. 

& Tech., 152 F.R.D. 179, 180–81 (S.D. Iowa 1993) (adopting creative response under Rule 37 to discourage such discovery 

tactics). Neither of these points addresses whether or how the 

district court in this case abused its discretion in deciding to 

award sanctions against Davis personally. 

We appreciate Mr. Davis’s initial hesitation before leveling 

fraud accusations at another lawyer. But he then went ahead 

and did just that, and without presenting any new evidence 

of fraud. He offered only inferences and innuendo drawn 

from the original summary judgment record. Rule 11 “requires counsel to read and consider before litigating,” which 

Davis claims to have done, but it also “establishes an objective 

test,” U.S. Bank Nat’l Ass’n, N.D. v. Sullivan-Moore, 406 F.3d 
12 Nos. 17-1645 & 17-1786 

465, 470 (7th Cir. 2005) (citation omitted), that asks whether 

the attorney engaged in “an inquiry reasonable under the circumstances” before filing a motion. Fed. R. Civ. P. 11(b). Davis 

makes no effort to explain how his investigations of the facts 

and law underlying the Rule 60 motion he filed were reasonable. The district court awarded sanctions for having to respond to this motion, and Davis has not advanced a coherent 

argument that shows how this grant was an abuse of discretion. We affirm the decision of the district court imposing 

sanctions. 

C. Appellate Sanctions 

Finally, appellee Schneider Electric has asked for an additional sanctions award under Federal Rule of Appellate Procedure 38 against Kennedy and/or Davis for filing frivolous 

appeals. We deny this request because the request itself was 

procedurally improper. Rule 38 expressly requires that a 

party’s demand for sanctions come in “a separately filed motion.” Like many appellees before it, Schneider Electric 

merely included a “request” at the end of its merits brief. As 

we have observed before, “to be entitled to such fees [an appellee] would have had to ask for them in a separate motion 

... which [it] failed to do.” Hoyt v. Benham, 813 F.3d 349, 356 

(7th Cir. 2016), citing Heinen v. Northrop Grumman Corp., 671 

F.3d 669, 671 (7th Cir. 2012). And we cannot help but note the 

irony inherent in a party’s procedurally improper request that 

the court sanction an opposing party for failing to comply 

with other procedural rules. See, e.g., Northern Illinois Telecom, 

850 F.3d at 888–89 (reversing award of Rule 11 sanctions imposed after moving party failed to comply with required 

warning-shot/safe-harbor procedure under Rule 11(c)(2)); 

Heinen, 671 F.3d at 671 (“this court is not inclined to award 
Nos. 17-1645 & 17-1786 13

sanctions in favor of a party that cannot be bothered to follow 

the rules itself”). While Rule 38 authorizes the court to impose 

sanctions on its own initiative (after giving the potential target 

an opportunity to respond), the better course here is to signal 

as clearly as we can that this case should be over and done 

with. 

Conclusion 

The district court did not abuse its discretion in denying 

relief under Rule 60 or in imposing sanctions under Rule 11. 

The rulings of the district court are AFFIRMED.