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Kennedy v. Schneider Electric

United States District Court, N.D. Indiana, Hammond Division

March 1, 2017




         This matter is before the Court on a Plaintiff's Rule 60(d)(3) Notice and Motion to Set Aside Judgment for Fraud on the Court [DE 60] filed by Plaintiff Bennie Kennedy on May 24, 2016, and on Defendant Schneider Electric's Motion for Sanctions [DE 68], filed on July 13, 2016.


         Plaintiff originally filed his two-count Complaint in Lake County, Indiana, Circuit Court on February 10, 2012. The Complaint alleges that Defendant Schneider Electric, Inc., Plaintiff's employer, defamed him (Count I) and interfered with an advantageous relationship (Count II) when one of its employees contacted Prairie State College (PSC), the community college where Plaintiff taught part time.

         This matter was removed to the United States District Court for the Northern District of Indiana on the basis of diversity of citizenship on March 20, 2012. On March 28, 2012, Defendants filed a Motion to Dismiss. On December 11, 2012, that motion was denied.

         On March 7, 2014, Defendant filed a Motion for Summary Judgment. On April 25, 2014, Plaintiff filed a response to the Motion for Summary Judgment. In the response, which cited no case law, Plaintiff asked that summary judgment be granted in his favor. Attached to the response was an undated affidavit and exhibits to the affidavit. On May 8, 2014, Defendant filed a Rule 56 Motion to Strike the response and affidavit, including its attachments, and filed a separate reply to the response to the Motion for Summary Judgment. Plaintiff did not file a response to the Rule 56 Motion to Strike.

         On September 5, 2014, the Court granted the Rule 56 Motion to Strike as to the affidavit and its attachments and denied it as moot as to the response. In the same Opinion and Order, the Court granted Defendant's Motion for Summary Judgment and denied Plaintiff's request for summary judgment in his favor. The Clerk of Court entered judgment in favor of Defendant the same day.

         On May 24, 2016, Plaintiff filed the Motion to Set Aside Judgment. On July 1, 2016, Defendant filed a response. Plaintiff filed a reply on July 6, 2016. This motion is ripe and ready for ruling.

         On July 13, 2016, Defendant filed the Motion for Sanctions. Plaintiff filed a response on July 19, 2016. Defendant has not filed a reply, and the time in which to do so has passed. This motion is also ripe and ready for ruling.

         On May 8, 2013, the undersigned Magistrate Judge was advised that all non-Doe parties had filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. The Doe Defendants were severed from this case, and this Court thus has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).



         In the first sentence of the Motion to Set Aside Judgment, Plaintiff states that he is filing it pursuant to several subsections of Federal Rule of Civil Procedure 60. In his reply, however, Plaintiff clarifies that he is only bringing the motion under Rule 60(d)(3). In the briefing of this, a few preliminary matters have arisen, which the Court will resolve before turning to its analysis of the request to set aside the judgment.

         A. Preliminary Matters

         1. Request to Join Motion to Complaint against Prairie State College

         Plaintiff states that the Court should “attach this motion to the Complaint filed simultaneously against Prairie State College.” (Mot. at 25). Plaintiff has not set forth any legal basis or argument why such an action would be appropriate. Further, even if such a remedy were available or appropriate, Plaintiff has not identified any lawsuit filed against PSC with sufficient particularity, stating only that a Complaint was filed “simultaneously with this Motion.” Id. at 24. This request is denied.

         2. Admissibility of Plaintiff's Evidence

         Defendant argues that emails that Plaintiff has submitted are hearsay. Plaintiff asserts that he has authenticated the emails via his affidavit. The emails at issue contain out of court statements, and, despite Plaintiff's statement that the emails show the writer's state of mind, Plaintiff presents them for the truth of the matter asserted in the emails. As such, these emails are hearsay, and the Court will not consider them in its analysis.

         3. Professional Duties of Counsel

         Plaintiff asks the Court to take judicial notice of the professional duty of attorneys to vigorously advocate for their clients. Plaintiff has not identified the source of this duty. Per Northern District of Indiana Local Rule 83-5(e), Indiana's Rules of Professional Conduct and the Standards for Professional Conduct Within the Seventh Federal Judicial Circuit govern the conduct of attorneys practicing in this District.

         The Court takes judicial notice of the following provisions in Indiana's Rules:

Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.3 Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 3.1 Meritorious Claims and Contentions: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an ...

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