United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
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.
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.
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
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.
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.
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
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.
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).
MOTION TO SET ASIDE JUDGMENT
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
Request to Join Motion to Complaint against Prairie State
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.
Admissibility of Plaintiff's Evidence
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.
Professional Duties of Counsel
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
Court takes judicial notice of the following provisions in
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
Rule 1.3 Diligence: A lawyer shall
act with reasonable diligence and promptness in representing
Rule 3.1 Meritorious Claims and
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