In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-2737 & 09-2620

DANIEL J. WICKENS and

PAMELA WICKENS,

Plaintiffs,

and

MARK E. SHERE,

Appellee,

Cross-Appellant,

v.

SHELL OIL COMPANY and

SHELL OIL PRODUCTS COMPANY, LLC,

Defendants-Appellants,

Cross-Appellees.

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:05-CV-645—Sarah Evans Barker, Judge.

ARGUED JANUARY 19, 2010—DECIDED AUGUST 31, 2010
2 Nos. 09-2737 & 09-2620

Of the Northern District of Illinois, sitting by designation. 



Before BAUER and WOOD, Circuit Judges, and KENNELLY,

District Judge.



WOOD, Circuit Judge. Though the parties’ voluminous

filings might suggest otherwise, this case had humble

beginnings and there is not much left of it at this point.

Pamela and Daniel Wickens owned a small shoe store

in Anderson, Indiana. The store rested on a plot of

land that once had been used as a Shell gas station. In

2004, when the Wickenses began preparing to sell the

store and retire, they received the unwelcome news

that their store rested on a bed of contaminated soil.

Not long after, the Wickenses retained Mark Shere as

their attorney and began talks with Shell regarding

its liability for the contamination. Their discussions

centered largely on Shell’s responsibilities under Indiana’s

Underground Storage Tank Act (the “Act”or the “USTA”),

Ind. Code § 13-23-13-8. This statute provides that any

person who takes corrective action to remedy damage

caused by an underground storage tank may obtain

a contribution from the owner or operator of the tank.

Ind. Code § 13-23-13-8(b). If the party taking corrective

action brings a successful suit, she is also entitled to

attorneys’ fees. Id.

Dissatisfied with the outcome of those discussions, the

Wickenses filed suit on March 24, 2005. Much legal wrangling followed, but eventually the parties hammered out

a settlement agreement that resolved most of the
Nos. 09-2737 & 09-2620 3

lingering liability issues. Critically for our purposes, the

agreement provided that the calculation of corrective

action costs and attorneys’ fees would be left to the court.

The district court granted most, but not all, of the

Wickenses’ requests for corrective action costs and attorneys’ fees. After the court issued its decision, Shere revealed for the first time that the Wickenses’ litigation

team had been funded in part by Employers Fire Insurance Company (“Employers”). Shell quickly filed a Rule

60(b) motion to vacate, which the court denied. Both

parties have appealed. We conclude that the district

court made the best of a fractious situation and but for

a small calculation mistake, we find nothing erroneous

in its judgment. Thus, we affirm in part and reverse

and remand in part for further proceedings consistent

with this opinion.

I

The district court’s opinion provides an exhaustive

account of the background to this case. See Wickens v.

Shell Oil Co., 569 F. Supp. 2d 770, 773-83 (S.D. Ind. 2008).

Much of that detail is unnecessary to the resolution of

this appeal, however, and so we limit ourselves to a

brief rehearsal of the facts that remain pertinent.

Before putting their land on the market, in July 2004

the Wickenses hired HydroTech Corporation to conduct

an environmental investigation of the soil. Borings revealed that the land was contaminated with pollutants

that probably had leaked from an underground
4 Nos. 09-2737 & 09-2620

gasoline storage tank. Acting pursuant to notification

requirements imposed by Indiana law, HydroTech reported the leak to the Indiana Department of Environmental Management (“IDEM”). IDEM then sent a

letter to the Wickenses informing them that they were

responsible as the property owners for carrying out

further investigations into the nature of the leak. The

Wickenses responded by hiring Shere and authorizing

HydroTech to pursue further investigatory work.

As part of its investigation, HydroTech examined the

soil of a neighboring property owned by Richard Gardner

and found that it too was contaminated. The Gardner

property also had formerly hosted a gas station, but it

had been affiliated with a different oil company. After

HydroTech submitted its findings to IDEM, the Department sent a letter in November 2004 informing the

Wickenses that they were now responsible for investigating the Gardner property as well. This proved to be

a turning point in the parties’ dispute; in the months

that followed, they fought bitterly over the source of the

contaminants and Shell’s responsibility for remediating

the Gardner property. Relying on HydroTech’s determination that the Wickenses’ property was the likely

source of the contamination, the Wickenses believed

that Shell should have assumed full responsibility for

the entire IDEM investigation. Shell, on the other hand,

found HydroTech’s analysis wanting and insisted that

IDEM bifurcate the investigation of the two parcels.

Unable to convince Shell to agree to the Wickenses’ list

of demands, Shere filed this lawsuit in March 2005. Over

the course of the next year, the parties offered competing
Nos. 09-2737 & 09-2620 5

environmental assessments and vied for control of

the IDEM investigation. Bombarded with the parties’

conflicting ideas for further investigations, IDEM decided

that it would deal exclusively with the Wickenses as of

November 2006. Making matters worse for Shell, the

district court denied the company’s motion for summary judgment, finding that Shell in all likelihood bore

full responsibility for the contamination.

At this point, the Wickenses had a significant amount of

leverage, which put Shell in a bind. As the district court

put it, “[s]o long as the litigation continued and the

Wickenses retained ownership of the real estate, Shere

and HydroTech controlled any and all responses to the

IDEM-directed investigation and remediation and could

elect to continue to incur, or generate, costs that, under

USTA, would be on Shell’s dime.” 569 F. Supp. 2d at 779-

80. The parties spent a lot of time haggling over the

terms of a settlement agreement, but they were unable

to reach any consensus. In the meantime, Shere and

HydroTech continued to rack up additional attorneys’

fees and corrective action costs.

In an effort to staunch the runaway fees and promote

settlement, the district court entered an order on

January 9, 2007, temporarily freezing the parties’ liability

for each other’s attorneys’ and experts’ fees. It instructed

the parties to use this time to select a mutually acceptable independent consultant, who would investigate

the property and submit a joint report to IDEM. Though

the freeze was to last only three months, Shere submitted

an emergency motion challenging the so-called “time-out
6 Nos. 09-2737 & 09-2620

period,” arguing that it undermined the purpose of the

Act. The court was not moved to reconsider its decision,

but it did leave open the possibility of recovery for fees

“upon a showing of extremely good cause and clear

necessity.” Despite the court’s warnings, the parties

both continued to incur substantial expenses during

this period; ostensibly, those expenses were for oversight of the work of the independent consultant. After

the “time-out period” expired, HydroTech continued to

work on the land pursuant to a work plan IDEM approved on March 28, 2007.

After a series of meetings with a magistrate judge, the

parties eventually were able to nail down the details of a

settlement agreement. Under the agreement, Shell promised to purchase the Wickenses’ property for $139,900

and to pay $60,100 in “property damages.” The parties

stipulated that the Wickenses were entitled to attorneys’

fees and corrective action costs, but they delegated to

the court the job of calculating the amount of those costs.

In calculating the fee award, the district court awarded

the Wickenses most of what they wanted, but it declined

to award anything for attorneys’ fees incurred after

January 9, 2007. Shere’s work after that date, the court

explained, was aimed at achieving successes unrelated

to the goals of the Act and thus it was not compensable.

Similarly, the court refused to put Shell on the hook for

HydroTech’s expenses past this date, with the exception

of the costs related to work devoted to carrying out

IDEM’s March 2007 work plan. Since the fee award

was not easily ascertainable, the court decided not to

award prejudgment interest.
Nos. 09-2737 & 09-2620 7

Naturally, this was not the end. Shell filed postjudgment motions under both FED. R. CIV. P. 59(e) and

60(b). The court granted in part Shell’s Rule 59(e) motion

to modify or alter the judgment by deducting fees that

Shere received for the legal services attributable to his

wife, Colleen Shere. Although Colleen Shere had once

been licensed to practice law in Indiana, she had allowed

her law license to lapse. The court concluded that

Shere had improperly billed her hours as attorney

services and thus those amounts should not have been

included in his award. After this deduction, the

Wickenses received $391,307.83 in attorneys’ fees and

$116,511.27 for corrective action costs.

Shell’s Rule 60(b) motion asked the court to vacate its

judgment on the ground that Shere had fraudulently

concealed Employers’s role in funding a large part of

the Wickenses’ litigation efforts. The district court admonished Shere for failing to disclose his relationship

with Employers when the issue of fee arrangements was

discussed at a recent hearing. Nevertheless, the court

concluded that Shere’s evasiveness did not warrant

relief under Rule 60. Shell has appealed. After the

district court granted Shere’s motion to allow him to

appear in the case in his own name as the real party

in interest, Shere has cross-appealed. (We are not concerned here about the ability of any creditor of the

Wickenses to reach those funds, cf. Astrue v. Ratliff, 130

S. Ct. 2521 (2010) (holding that an award of fees under

the Equal Access to Justice Act, 28 U.S.C. § 2412(d), is

payable to the litigant, not to the attorney, and thus is

available to offset a debt to the government); as no one
8 Nos. 09-2737 & 09-2620

has challenged the district court’s decision to allow

Shere to appear as the party-in-interest, we have no

further comment about it.)

II

To a great degree, the issues on the appeal and crossappeal overlap. Shell and Shere both attack the district

court’s calculation of attorneys’ fees and corrective

action costs. Shere thinks that the court should not have

used a cut-off date at all, and both parties dispute the

particular date the court selected. Shere also contests the

district court’s treatment of fees attributed to Colleen

Shere’s work and the court’s tabulation of his bills.

Whatever the size of the attorneys’ fees and corrective

action costs award, Shere contends that he is entitled to

prejudgment interest. For its part, Shell argues that the

district court’s decision should have been tossed out

under Rule 60(b) because Shere misrepresented his fee

arrangement. Lastly, Shere quarrels with the district

court’s findings that are critical of his professionalism

and candor. We address each issue in turn and apply

the law of Indiana, as this case is based on the diversity

jurisdiction.

A

Though trial courts are given wide latitude in formulating awards of attorneys’ fees, their discretion is

cabined in a few important respects. Indiana courts look
Nos. 09-2737 & 09-2620 9

for guidance to a series of common-sense factors set out

in the state’s Rules of Professional Conduct. See Ind. Rules

of Professional Conduct 1.5(a) (discussing things like

customary fees for similar legal services, time, and labor

required). When the parties haggle over the number of

attorney hours billed, Indiana courts permit the judge to

take into account the “responsibility of the parties in

incurring the attorneys’ fees.” Weiss v. Harper, 803 N.E.2d

201, 208 (Ind. Ct. App. 2003). For cases relying on the

Underground Storage Tank Act, a court must also be

careful to allocate attorney hours to each particular

cause of action, because a court cannot “authorize reimbursement of fees incurred in pursuing . . . non-USTA

claims . . . , regardless of how closely related those

claims might be to the USTA claim.” Shell Oil Co. v.

Meyer, 684 N.E.2d 504, 524 (Ind. Ct. App. 1997); summarily

affirmed in relevant part, 705 N.E.2d 962, 981 (1998).

Noting that the Act protects only a narrow right to

contribution from an operator for corrective action costs,

the district court concluded that the statutory purpose

is satisfied “once a defendant accepts its legal obligation and agrees to assume responsibility for remediating

the site.” Wickens, 569 F. Supp. 2d at 791. After this point,

any further action by the plaintiff’s attorney logically

must relate to claims outside the scope of the Act for

additional damages or indemnification. Applying its

statutory-purpose test, the district court selected January 9, 2007, as the date after which Shere’s efforts were

no longer focused on obtaining relief under the Act and

thus were not recoverable from Shell. By January 9, 2007,
10 Nos. 09-2737 & 09-2620

Shell had offered to cover all of the Wickenses’ past

and future corrective action costs; all that remained, the

district court explained, were claims outside the scope

of the Act for additional damages and attorneys’ fees.

As the parties have raised objections to various aspects

of the district court’s decision on fees, it is helpful to

clarify the standard of review that pertains to each issue.

We review de novo the district court’s legal analysis and

methodology, which includes its decision to employ an

approach based on statutory purpose. Montgomery v.

Aetna Plywood, Inc., 231 F.3d 399, 408 (7th Cir. 2000). The

application of that test, assuming that it is the correct

one, is subject to a more lenient abuse-of-discretion standard. Anderson v. AB Painting and Sandblasting, Inc., 578

F.3d 542, 544 (7th Cir. 2009).

We begin with the fundamental question whether

the court’s use of the statutory-purpose test was permissible. Rather than looking at purpose, Shere contends that

the Act permits reimbursement of all fees that contribute

to the plaintiffs’ success. In so arguing, he relies on

the following statement in the statute: “A person who

brings a successful action to receive a contribution from

an owner or operator is also entitled to receive reasonable attorney’s fees and court costs from the owner

or operator.” Ind. Code § 13-23-13-8(b) (emphasis

added). Shere contends that the district court ignored

significant legal victories that he achieved for his clients

after January 9, 2007. This argument, however, entirely

ignores the fact that the Indiana courts have interpreted

the statutory language to be limited to claims under
Nos. 09-2737 & 09-2620 11

the Act; in Meyer, the court expressly held that fees

may not be awarded on the basis of non-Act claims. 684

N.E.2d at 524. The district court was therefore correct

to disregard the fact that the Wickenses received a

large lump-sum payment from Shell or that Shell

promised to indemnify the Wickenses for tort liability related to the contamination.

Shere also complains, relying on Anderson, 578 F.3d at

545, that the district court’s approach to attorneys’ fees

was inappropriately guided by its concern that the parties’ litigation costs were disproportionate to the value of

the Wickenses’ property. The record, however, does not

support this accusation. Shere points to only a few instances where the court made an off-hand reference comparing the relative size of the settlement

with Shere’s attorneys’ fees request. At most, these comments might indicate that the court momentarily lost

sight of the large projected cost of future corrective

action. The court’s remarks do not, however, imply that

it calculated its fee award using an inappropriate proportionality analysis. The only reasonable inference

from the record is that the dispositive factors were the

time when the fees were incurred and their relation to

the Wickenses’ claims under the Act, and nothing else.

The court’s decision to rely on the purpose behind the

Act was therefore supported by Indiana law and not

otherwise objectionable. The more difficult question—or

at least the question to which the parties have devoted

more energy—relates to the court’s selection of a date

by which the statutory purpose was fully satisfied. The
12 Nos. 09-2737 & 09-2620

court used January 9, 2007, as the appropriate cut-off

date. Shell suggests three earlier alternative dates as

better choices: January 13, 2005; August 21, 2006; or

November 21, 2006. Shere, not surprisingly, urges us to

choose a later date.

We consider first whether it was an abuse of discretion

to choose any date later than January 13, 2005, when

Shell’s attorney allegedly offered to remediate the

Wickenses’ property and to respond in good faith to

IDEM. Assuming that Shell did in fact make this offer, a

fact Shere contests, the district court found that Shell’s

refusal to take responsibility for the Gardner property

was an abdication of the duties the company owed to the

Wickenses under the Act. IDEM, recall, had combined

both pieces of property into a single investigation, and

the district court found that the state agency’s action

effectively made the Wickenses responsible for the

Gardner property. Under those circumstances, it would

not make any sense for the Wickenses to agree to limit

Shell’s liability solely to their own property when they

believed that Shell should also be on the hook for the

liability the Wickenses faced because Shell’s tanks allegedly caused harm to the Gardner property.

Shell contends that the Act does not require it to take

responsibility for another person’s property and thus

that attorneys’ fees were not available for this part of the

Wickenses’ case. The Act, however, specifically provides

that any person who either voluntarily or by order

from IDEM undertakes corrective actions “is entitled to

receive a contribution from a person who owned or
Nos. 09-2737 & 09-2620 13

operated the underground storage tank.” Ind. Code § 13-

23-13-8(b). This language shows that it is irrelevant

under the Act whether the person ordered to take action

owns the property, and thus that Shell’s argument

cannot prevail.

The district court also erred, Shell asserts, when it

found that the Wickenses “lacked the power . . . to accept

Shell’s partial acceptance of responsibility” in January 2005. Because the Act allowed the Wickenses to

recover a “contribution” from Shell, Shell reasons that

the Wickenses had the ability to accept Shell’s offer to

cover a portion of the liability. Though this is obviously

true, it is beside the point. The Wickenses had a

right under the Act to hold Shell liable for the full extent of the corrective action costs they owed, and that

amount was greater than the offer Shell was making

at the time.

Shell’s first fallback position from its preferred date of

January 2005 is August 21, 2006, which is when it submitted its Further Site Investigation work plan to IDEM.

Shell asserts that a few months earlier, on March 13,

2006, it informed IDEM that it would take responsibility

for the Wickenses’ property. Delivery of the work plan,

it continues, was the final step needed to take full responsibility under the Act. The district court rejected

this alternative date because Shell’s work plan was

neither approved by IDEM nor accompanied by an

express commitment to indemnify the Wickenses for

future corrective action costs. Indeed, at that time Shell

was still contending that some of the contamination on
14 Nos. 09-2737 & 09-2620

the Wickenses’ property was attributable to the other

company’s tanks on the Gardner lot.

In contesting the district court’s conclusion, Shell

argues that IDEM’s rejection of its work plan is irrelevant

to the fee inquiry, intimating that it was sufficient for

Shell to make a good-faith effort to comply with IDEM’s

directives. Even if this were true—and we are not

saying that it is—the district court was entitled to find

that Shell had not met even that more modest standard.

Notably, as of August 21, 2006, Shell still had not

promised to cover the Wickenses’ corrective action

costs. Indemnifying the Wickenses for these costs,

Shell counters, is outside the scope of the Act because

“indemnification and statutory contribution” are “two

separate theories.” Bourbon Mini-Mart, Inc. v. Gast

Fuel Services, Inc., 783 N.E.2d 253, 257 (Ind. 2003). Bourbon

Mini-Mart, however, does not help Shell, because in

that case the court was drawing a distinction between

indemnification for tort claims and liability under the

Act. Id. at 256-57. The Wickenses’ request for indemnification against future corrective action costs deals

strictly with the liability imposed pursuant to the Act.

As the Act permits plaintiffs to recover future corrective action costs, there is no impediment to seeking

indemnification under its terms. Meyer, 684 N.E.2d at

520-21. 

Shell’s final fallback date is November 21, 2006, the day

when it offered “to pay 100% of the past and future

corrective action costs at the Wickens property, to indemnify the Wickens and any future owners or tenants of
Nos. 09-2737 & 09-2620 15

the property against these costs . . . , and to pay reasonable costs of litigation as determined by the Court.”

Though the district court admitted that “[Shere’s] efforts

at this point to collect attorneys’ fees and repayment of

costs from Shell clearly appear to be driving the litigation,” it recognized that negotiations over attorneys’

fees was “routine” and nothing indicated that Shere’s

actions in prolonging the litigation at this stage were

unreasonable. Shell’s refusal to accept the magistrate

judge’s December 2006 settlement proposal, the district

court reasoned, implied that Shell too was responsible

for the continuation of the litigation.

Shell comes closest to a reasonable position with this

argument, but we are satisfied that the district court

did not abuse its discretion when it rejected this option

as well. As the court noted, this offer did not resolve

the issue of the precise amount of costs and fees that

Shell would assume. Shere responded to it with an

email dated November 30, 2006, in which he did propose

specific numbers, but Shell rejected that counteroffer.

The district court took the position that Shell’s November 21, 2006, offer did not effectively resolve the case;

there is no rigid rule saying that offers to litigate must be

accepted. See Moriarty v. Svec & Sons Funeral Home, 233

F.3d 955, 967-68 (7th Cir. 2000) (noting that a settlement

offer is only one of many factors to be taken into consideration when awarding attorneys’ fees). Though the fees

awarded by the court are required to be reasonable,

counsel may legitimately hold out for a better deal (for

at least some time) because fee litigation is costly and

often is not reimbursed as part of the fee award.
16 Nos. 09-2737 & 09-2620

Having disposed of Shell’s challenges to the district

court’s choice of January 9, 2007, as the cut-off date, we

turn now to Shere’s arguments for a later date. Shere

criticizes the district court’s decision because it was

based in part on the court’s earlier “time-out” order

temporarily limiting attorneys’ fees. That order, Shere

asserts, conflicted with the fee-shifting provisions in

the Act. As detailed above, the district court permitted

Shere to recover fees incurred after Shell’s November 21,

2006, settlement offer, because it recognized that Shere

needed some time to try to tie up the last few details of

a full settlement. But the court was entitled to force an

end to that process, and that is just what it did by determining that on January 9, 2007, it would not wait

any longer for the parties to resolve the fee dispute. In

fact, the court was more generous than this, since it

restricted fees for only 90 days while the litigation was on

pause. There was thus little reason for Shere’s hyperbolic

emergency motion to reconsider the imposition of the

“time-out” period. The court saw Shere’s overblown

reaction as evidence that by this time he was unnecessarily expanding the scope of the IDEM investigation.

Shere also challenges the district court’s decision to

deny fees related to the work he did after January 9,

2007, drafting the settlement agreement. The costs associated with putting an agreement into writing would

have been incurred even if the Wickenses had agreed to

settle before January 9, 2007. The district court did, however, award Shere fees for the month and a half after

Shell offered to litigate the fee award in court. This, the

court was entitled to conclude, was enough. The same
Nos. 09-2737 & 09-2620 17

reasoning applies to Shere’s contention that he should

have been awarded fees for his work in litigating his fee

petition. The district court did not abuse its discretion

when it chose not to sort through Shere’s bills to calculate

how many hours were devoted solely to finalizing the

settlement agreement or litigating the fee dispute.

The cut-off date is not the only bone of contention

Shere has with the district court. He also objects to the

court’s decision to grant Shell’s Rule 59(e) motion requesting that Colleen Shere’s fees be deducted from his

fee award. (The award did not identify Colleen Shere as

the recipient of these fees; instead, they were folded

into Shere’s own award.) The district court explained that these fees could not be recovered because

Colleen Shere was not a licensed attorney and thus

was not authorized to bill her services as an attorney

under Rule 5.5 of the Indiana Rules of Professional Conduct.

On appeal, Shere contends that Colleen Shere’s work

was cost-effective and consistent with the practice of

unlicensed attorneys temporarily working under the

supervision of other attorneys while they seek an

Indiana license. Yet, as the district court pointed out,

Colleen Shere was not actively trying to reinstate her

license. Nothing prevented Shere from simply billing

Colleen Shere’s time using some non-attorney designation.

Shere notes that even if the district court properly

excluded the fees associated with Colleen Shere’s work

product, the court made a small calculation error that

should be corrected. In its August 2008 final judgment
18 Nos. 09-2737 & 09-2620

order, the court awarded 89% of Colleen Shere’s fees,

because it determined that 11% of all attorneys’ fees

incurred prior to January 9, 2007, were devoted to the

pursuit of claims not covered by the Act. Later, in its

ruling on Shell’s Rule 59 motion, the district court subtracted $9,275, which constituted 100% of the fees Shere

originally requested for Colleen Shere’s work. This

appears to have been a clerical error that cost Shere

$1,020.25; thus, this error should be corrected on remand.

Relatedly, Shere claims that the district court’s fee

award failed to account for $5,419.23 in disbursements.

He draws this court’s attention to a series of bills and

receipts in the record that purportedly support this

claim. Given the complexity of the bills involved and

the need to apportion pre- and post-cut-off date costs, it is

startling that Shere failed to present evidence linking up

individual billing entries with his total calculation. This

court will not do Shere’s work for him, especially when

our review of the materials indicates that it is likely

that Shere made several miscalculations. Without a

better showing from him, we will assume that the

district court did its job properly when it decided to

award $37,443.25 in litigation costs and disbursements.

B

Attorneys’ fees are not the only topic on appeal. Shell

also takes issue with the district court’s decision to

award the Wickenses costs related to the environmental testing that HydroTech conducted in May and

June 2007. While the court felt that HydroTech and Shere
Nos. 09-2737 & 09-2620 19

were by then unnecessarily expanding the scope of the

IDEM investigation, it concluded that the Wickenses

were nonetheless entitled to these costs because they

were incurred pursuant to an IDEM-approved plan. This

decision, Shell asserts, incorrectly presumed that IDEM

officially approved HydroTech’s plan. Furthermore, as

none of HydroTech’s data was ever supplied to IDEM,

Shell says that it is beyond the pale to reimburse the

Wickenses for useless work. The court’s approach to

corrective action costs was irreconcilable, in Shell’s

view, with its decision denying attorneys’ fees covering

the same period. It was Shere, Shell argues, who pushed

for the expanded March 2007 work plan.

We review a district court’s award of damages under

the deferential clear error standard, Int’l Production Specialists, Inc. v. Schwing America, Inc., 580 F.3d 587, 598 (7th

Cir. 2009), and Shell has not come close to upsetting

our confidence in the district court’s decision. Shell’s

representation that IDEM never approved HydroTech’s

work plan is misleading. In fact, IDEM conditionally

approved the work plan and ordered HydroTech to

commence further investigation or risk being subjected to

civil penalties.

The fact that HydroTech never submitted the data to

IDEM is almost certainly a result of the magistrate

judge’s order on July 18, 2007, barring the parties

from engaging in any further corrective action. Though

HydroTech may have finished testing by that time, it

may still have been compiling its data and working on a

report. Before the magistrate judge’s order was lifted, the
20 Nos. 09-2737 & 09-2620

parties settled. At that point, HydroTech ideally should

have handed over what it had to IDEM, but it is hard to

blame it for inaction when it no longer would be compensated for its time. (Shell apparently has no interest in

HydroTech’s data.)

There is admittedly some tension between the district

court’s treatment of corrective action costs and its

handling of attorneys’ fees. Even so, the district court

could reasonably have believed that carrying out a

sensible (albeit expansive) investigation as ordered by

IDEM was less blameworthy than prolonging the litigation past January 2007 by using the Wickenses’ control

of the investigation as leverage over Shell. Thus, we see

no error in ordering Shell to pay for the corrective

action costs incurred in May and June 2007.

C

In his cross-appeal, Shere also argues that the district

court erred when it denied his request for prejudgment

interest on the attorneys’ fees and corrective action costs

awarded. Under Indiana law, prejudgment interest

is warranted if the damages are “ascertainable in accordance with fixed rules of evidence and accepted

standards of valuation at the time the damages accrued.”

Cincinnati Ins. Co. v. BACT Holdings, Inc., 723 N.E.2d 436,

441 (Ind. Ct. App. 2000) (internal quotation marks omitted). Though damages must typically be subject to

“simple mathematical calculation,” courts have awarded

prejudgment interest “even where some degree of judgment must be used to measure damages.” Hayes v. Chap-
Nos. 09-2737 & 09-2620 21

man, 894 N.E.2d 1047, 1054 (Ind. Ct. App. 2008). Thus,

an attorney may recover prejudgment interest for bills

related to litigation even though her client disputed the

bill and the court rejected the attorney’s proposed

hourly rate. Community State Bank Royal Center v. O’Neill,

553 N.E.2d 174, 177-78 (Ind. Ct. App. 1990) (applying

general rule to attorneys’ fees).

Nonetheless, “[d]amages that are the subject of a good

faith dispute cannot allow for an award of prejudgment

interest.” Whited v. Whited, 859 N.E.2d 657, 665 (Ind.

2007) (internal quotation marks omitted). As the district court found that the corrective action costs and

attorneys’ fees were reasonably contested, it declined to

award prejudgment interest. We review this decision for

an abuse of discretion. See Twenhafel v. State Auto Prop.

and Cas. Ins. Co., 581 F.3d 625, 630-31 (7th Cir. 2009).

We are tempted to say that Parts II.A and II.B of this

opinion show conclusively that the awards here were

subject to dispute and thus not eligible for prejudgment

interest under Indiana law. We will nonetheless

address Shere’s argument briefly. First, the decision in

Meyer does not mandate the imposition of prejudgment

interest. The court there approved the award of interest

only as a better alternative to the trial court’s use of a

lodestar-multiplier to capture its concern about the

delay in payment. Meyer, 684 N.E.2d at 526-27. Furthermore, the attorneys’ fees in Meyer were much more

easily calculable than in this case: in order to distinguish

between claims within and outside the Act, the court

had only to review the billing records or apply a simple

apportionment formula. Id. at 524-25; see also O’Neill,
22 Nos. 09-2737 & 09-2620

553 N.E.2d at 177-78 (routine dispute over hourly

rate). In contrast, the district court here could not begin

to calculate fees or costs until it had determined the

precise point at which the goals of the litigation

shifted away from pursuing the Wickenses’ claim under

the Act. See Whited, 859 N.E.2d at 665 (denying

claim for prejudgment interest because of complex damages calculations); Hammes v. Frank, 579 N.E.2d 1348,

1357 (Ind. Ct. App. 1991) (same). This methodology

involved more than a “simple mathematical calculation,”

and so the district court did not abuse its discretion

in denying Shere’s request for prejudgment interest.

D

Finally, Shell argues that the district court’s judgment

should be vacated pursuant to Federal Rules of Civil

Procedure 60(b)(3) because Shere failed to disclose Employers’s role as a major source of the Wickenses’ litigation funds. Though the district court faulted Shere

for not revealing his relationship with Employers, it

decided that Shere’s conduct did not warrant the

relief requested. We review the district court’s decision

denying Shell’s Rule 60(b) motion for an abuse of discretion. Musch v. Domtar Industries, Inc., 587 F.3d 857, 861

(7th Cir. 2009).

Rule 60(b)(3) provides that a court may set aside

a judgment if a party engaged in “fraud (whether previously called intrinsic or extrinsic), misrepresentation,

or misconduct by an opposing party.” To obtain relief

under Rule 60(b)(3), a party must show that she has a
Nos. 09-2737 & 09-2620 23

meritorious claim that she was prevented from “fully

and fairly presenting” at trial as a result of the adverse

party’s fraud, misrepresentation, or misconduct. See Ty

Inc. v. Softbelly’s Inc., 353 F.3d 528, 536 (7th Cir. 2003);

Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). “It

is well-established that Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional

circumstances.” Dickerson v. Board of Educ., 32 F.3d 1114,

1116 (7th Cir. 1994) (internal quotation marks omitted).

Rule 60(b)(3) does not, however, displace a judge’s

power to set aside a judgment for fraud on the court. FED.

R. CIV. P. 60(d)(3). Fraud on the court is actionable only

if it prejudices the adverse party. See Oxxford Clothes XX,

Inc. v. Expeditors Int’l of Washington, Inc., 127 F.3d 574, 578

(7th Cir. 1997). A party seeking to set aside a judgment

under Rule 60(b)(3) or the court’s inherent power must

prove fraud by clear and convincing evidence. See Ty

Inc. v. Softbelly’s, Inc., 517 F.3d 494, 498 (7th Cir. 2008);

Lonsdorf, 47 F.3d at 897.

Shell contends that Shere hid Employers’s role in the

litigation in violation of its obligation under the Federal

Rules of Civil Procedure to disclose insurance arrangements. The rules provide that a litigant must automatically disclose “any insurance agreement under

which an insurance business may be liable to satisfy all

or part of a possible judgment in the action or to

indemnify or reimburse for payments made to satisfy

the judgment.” FED. R. CIV. P. 26(a)(1)(A)(iv). Given

Employers’s involvement as the insurance company

funding the litigation, the district court concluded, as do

we, that Shere appears to have evaded his responsibilities.
24 Nos. 09-2737 & 09-2620

The choice of a proper sanction for violations of the

discovery rules, however, lies in the discretion of the

district court. Here, the court reasonably drew a line

between an apparent discovery violation and fraud. In

its Rule 60(b) motion, Shell has not come close to

showing by clear and convincing evidence that the

district court erred and that Shere’s actions were fraudulent in nature. Furthermore, Shell suffered no prejudice

as a result of Shere’s misrepresentations. Though the

district court criticized Employers for doing little to

control the costs of litigation, Shell’s knowledge of Employers’s role would not have changed anything. Shell’s

assertion that it would have reached a different settlement if it knew about Employers’s “deep pockets” may

even cut against it. In that situation, Shell might have

offered a larger settlement, thinking that it could not

simply wait until the Wickenses’ funds ran out.

E

Shere devotes a significant portion of his brief to contesting a number of the district court’s findings that

portray him in a less than favorable light. But his

request shows why we cannot do anything about this. He

says, in his brief, that “this appeal also concerns pages

of dicta, partially and ambiguously withdrawn, in

which the district court gave scathing treatment to hardearned professional reputations. The undersigned respectfully requests that this Court vacate and remand

the district court’s orders to allow this dicta to be corrected.” Even if the district court had formally found
Nos. 09-2737 & 09-2620 25

misconduct, an appeal is not the proper remedy. See, e.g.,

Seymour v. Hug, 485 F.3d 926, 929 (7th Cir. 2007) (explaining

that attorneys can only appeal monetary sanctions).

What Shere does not mention is that the district court

was, in many places, equally critical of Shell’s approach

to this case, and that it had some complimentary things

to say about Shere. We sit to review judgments, not

particular language in district court opinions, and Shere

will have to be satisfied with our decision on the

merits, which is largely favorable to him.

* * *

We REVERSE the district court’s judgment insofar as it

miscalculated when it deducted Colleen Shere’s fees

from Shere’s attorneys’ fees award and REMAND for

further proceedings consistent with this opinion. We

AFFIRM the remainder of the district court’s judgment.

8-31-10