John Gleason v. Chris Jansen , 888 F.3d 847 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1658
JOHN M. GLEASON,
Plaintiff-Appellant,
v.
CHRISTOPHER A. JANSEN,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 10286 — Joan Humphrey Lefkow, Judge.
____________________
SUBMITTED FEBRUARY 1, 2018* — DECIDED APRIL 25, 2018
____________________
Before WOOD, Chief Judge, and KANNE and BARRETT, Circuit
Judges.
WOOD, Chief Judge. This case began as an adversary pro-
ceeding in Christopher Jansen’s chapter 7 bankruptcy case. It
* We have agreed to decide this case without oral argument, because
oral argument would not significantly aid the court, and the briefs and
record contain everything necessary for our decision. FED. R. APP. P.
34(a)(2)(C).
2 No. 17-1658
turned into a procedural snarl, however. We have concluded
that the only part of the case properly before us is an appeal
from a denial of relief under the bankruptcy equivalent of
Federal Rule of Civil Procedure 60. That decision was correct,
and so we affirm the judgment of the district court.
I
John Gleason was one of Jansen’s creditors. At an appro-
priate time, Gleason filed an adversary proceeding in the case
to obtain a ruling that Jansen’s debt to him was nondischarge-
able under 11 U.S.C. § 523(a)(2)(A), which covers obligations
obtained by “false pretenses, a false representation, or actual
fraud, other than a statement respecting the debtor’s or an in-
sider’s financial condition.” The debt in question was an un-
paid default judgment for roughly $400,000 that Gleason had
obtained against Jansen in a case involving an allegedly
phony investment scheme. See Gleason v. Jansen, 76 Mass.
App. Ct. 1128 (2010) (table decision). Gleason moved for sum-
mary judgment under Federal Rule of Bankruptcy Procedure
7056, on the ground that Jansen was not entitled to relitigate
the Massachusetts judgment. The bankruptcy court denied
that motion and held a bench trial.
At the trial, further details about the Massachusetts case
came to light. Gleason, who at the relevant time had been
working for several entities as an “M&A finder,” gave
$141,000 to Jansen’s company, Baytree Investors, to cover
closing costs in a business acquisition. The deal never closed,
however, and Jansen never fully refunded the money to
Gleason after it fell through. Gleason’s checks, endorsed by
“Talcott Financial Corporation D/B/A Baytree Investors, Inc.,”
were deposited in a bank account numbered 100-177-5. Where
No. 17-1658 3
the money went after that is unknown, but Gleason tried pur-
suing Jansen in the Massachusetts litigation. Jansen later
pleaded guilty to unrelated charges of wire fraud and tax eva-
sion. Those charges concerned a corporate purchase he made,
after which he skimmed substantial amounts of money from
the corporation for his own benefit. Part of the scheme in-
volved the use of a bank account in the name of Talcott Finan-
cial Corporation, an Illinois entity that was involuntarily dis-
solved in 1999. This court recently affirmed his conviction on
those charges, with one minor adjustment to his restitution
order. See United States v. Jansen, 884 F.3d 649 (7th Cir. 2018).
Jansen defended himself pro se at the bankruptcy trial. He
testified that the “Talcott Financial Corporation” that was the
subject of his criminal case was a different entity from the
“Talcott Financial Corporation” whose name appeared on the
endorsement of the checks. The latter Talcott Financial was,
he said, an unincorporated internal business unit of Baytree
(despite the implication on the checks that Talcott was the pri-
mary company and Baytree was the business name). The two
Talcotts, he asserted, had different bank accounts, though the
only one in the record is 100-177-5, which belonged to Bay-
tree/Talcott. The alleged other account (which was held by the
other Talcott) was the subject of the criminal case and was
closed in 2003.
The bankruptcy court credited Jansen’s story and found
that Gleason had failed to establish that Baytree/Talcott and
Talcott were one and the same, such that it could be presumed
that Gleason was using the funds in Baytree/Talcott to cover
personal expenses. It also found that even if there were only
one account, Gleason had failed to prove that Jansen had de-
frauded him intentionally. It observed that Jansen’s efforts to
4 No. 17-1658
avoid the Internal Revenue Service by mixing personal and
business funds in one account did not necessarily show that
he misused Gleason’s money, let alone that he obtained it
fraudulently. The court concluded that Gleason had not
proven the fraud and so the debt was dischargeable.
While the bankruptcy trial was still underway, Jansen was
trying to withdraw his plea of guilty in the criminal case. This
complicated matters. The bankruptcy court warned him in its
opinion denying summary judgment that any effort to invoke
the Fifth Amendment privilege against self-incrimination
could lead to an adverse inference for bankruptcy purposes.
It relied on In re Fetla’s Trading Post, Inc., Adv. No. 05 A 00926,
2006 WL 538802 (Bankr. N.D. Ill. Mar. 2, 2006)—a case (as the
bankruptcy court explicitly noted) that Jansen knew well, be-
cause he was the party who had tried to invoke the Fifth
Amendment in that very case. Notwithstanding the warning,
Jansen asserted his Fifth Amendment privilege throughout
the proceeding: in his answer; in discovery; and in response
to questions posed at the trial.
For his part, Gleason filed notices of appeal to the district
court with abandon: first, he appealed the bankruptcy court’s
denial of his motion for summary judgment and its judgment
after the trial; second, he appealed the bankruptcy court’s dis-
missal of a show-cause order issued to Jansen for filing sev-
eral frivolous motions to dismiss; and third, he filed a notice
simply to correct the caption in the first two notices. All of
these notices were docketed in the district court as case num-
ber 14 C 06878. We refer to that case as the “merits appeal.”
Shortly after he filed the merits appeal, Gleason discov-
ered evidence that (he believes) shows that Jansen had per-
jured himself at the bankruptcy trial. Gleason’s attorney
No. 17-1658 5
looked at the publicly available record in Fetla’s Trading Post
and discovered statements for bank account 100-177-5. Those
statements included images of checks paid from the account,
and showed the payor on the face of the checks as “Christo-
pher A. Jansen, President, Talcott Financial Corporation.”
Gleason was convinced that these records, spanning the time
from June 1999 through January 2004, revealed that Jansen
had used account 100-177-5 for personal expenses. From this,
Gleason inferred that Jansen had lied to the bankruptcy court
when he said that the account involved in the criminal case
had been closed in 2003.
Gleason rushed back to the bankruptcy court with a mo-
tion for relief from the judgment under Bankruptcy Rule 9024,
which in turn incorporates Federal Rule of Civil Procedure
60(b). The materials from Fetla’s Trading Post, he argued, qual-
ified as “newly discovered evidence,” and he asserted that
they demonstrated fraud or misconduct or fraud on the court,
or otherwise warranted re-opening the case. See FED. R. CIV.
P. 60(b)(2), 60(b)(3), 60(d)(3), 60(b)(6). Because the case was al-
ready before the district court, however, Gleason also asked
the bankruptcy court for an indicative ruling under the bank-
ruptcy analog to Federal Rule of Civil Procedure 62.1. See FED.
R. BANKR. P. 8008 (effective shortly after Gleason made his
motion). The bankruptcy court declined to issue such a ruling.
In its view, the Fetla’s Trading Post evidence, easily found on
PACER, was far from new, and the interest in finality coun-
seled against re-opening the case. Gleason filed yet another
notice of appeal to the district court, challenging this decision.
We refer to it as the “Rule 60 appeal.”
6 No. 17-1658
II
Initially, the merits appeal proceeded normally. The dis-
trict court issued a scheduling order and things appeared to
be on track. Three weeks before Gleason’s opening brief was
due, however, Jansen filed a motion to dismiss the appeal as
untimely. At that point, the district court vacated its schedul-
ing order. After further reflection, however, Jansen conceded
that it was timely, and the district court entered an order
denying the motion to dismiss. It did not enter any new
scheduling order, and so neither party filed an appellate brief
on the merits.
The day after the court entered the order denying the mo-
tion to dismiss the merits appeal, the Rule 60 appeal was
docketed and assigned to the same judge under case number
14 C 10286. The judge scheduled a status hearing for February
15, 2015. At the hearing, she stated that “[t]he parties and is-
sues” in the two cases were “essentially the same.” She ac-
cordingly dismissed the merits appeal without prejudice and
closed the docket for that case. Nonetheless, she did not enter
a scheduling order for the Rule 60 appeal. The only entry on
the docket is a minute order stating that “[a]ll relevant briefs
from the bankruptcy court, and the transcript … are to be sub-
mitted no later than 4/13/2015. Ruling will issue by mail.”
Gleason filed the record in the Rule 60 appeal on April 13.
That record included his motion for relief from the bank-
ruptcy court’s judgment as well as the trial transcript. The dis-
trict court already had the summary-judgment materials.
After that, the case went dead for nearly two years. Nei-
ther party filed a new brief (or anything else), nor did the dis-
trict court enter anything on the docket in either case. The case
came back to life on February 27, 2017, when the court issued
No. 17-1658 7
its ruling in the Rule 60 appeal. Finding no abuse of discretion
in the bankruptcy court’s refusal to re-open the case, the court
affirmed that order. Its order leaves no doubt that the judge
thought that she had only the Rule 60 matter before her.
Gleason then appealed to this court.
III
Before turning to the present appeal, we must clarify what
exactly is before us. The short answer is “less than meets the
eye.” Ever since February 15, 2015, when the district court dis-
missed the appeal in case number 14 C 06878—the merits ap-
peal—the only matter that was before the district court was
appeal number 14 C 10286, which is from the bankruptcy
court’s rejection of Gleason’s Rule 60 motion. This state of af-
fairs appears to be rooted in an error the district court made
at the time it dismissed the merits appeal, when it said that
the parties and the issues in the two appeals were essentially
the same. The parties may have been the same, but the issues
were decidedly different. As we noted in Bell v. McAdory, 820
F.3d 880 (7th Cir. 2016), “it is canonical that an appeal from
the denial of a motion under Rule 60(b) does not allow the
court of appeals to address the propriety of the original judg-
ment.” Id. at 883, citing Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 263 n.7 (1978) (“an appeal from denial of Rule 60(b) relief
does not bring up the underlying judgment for review”). The
only question raised in a Rule 60(b) appeal is whether the trial
court abused its discretion by refusing to grant the extraordi-
nary relief recognized in that rule (and in its bankruptcy
equivalent, as applied here).
What Gleason should have done, but did not, was to file a
protective notice of appeal to this court from the district
8 No. 17-1658
court’s dismissal of the merits appeal. We grant that the dis-
trict court said that its dismissal of the merits appeal was
“without prejudice,” and that dismissals without prejudice
are normally nonfinal for purposes of appellate jurisdiction
under 28 U.S.C. § 1291. See Am. States Ins. Co. v. Capital Assocs.
of Jackson Cnty., Inc., 392 F.3d 939, 940 (7th Cir. 2004). None-
theless, the label “without prejudice” does not always prevent
a disposition from being a de facto final judgment. When it is
clear that the district court is finished with a particular case
and that nothing can be done to revive it, the judgment is fi-
nal. See Czarniecki v. City of Chicago, 633 F.3d 545, 549 (7th Cir.
2011) (“we have repeatedly found that even if a court dis-
misses claims ‘without prejudice,’ we assess ‘finality’ by
whether the district court ‘has finished with the case’”); Hill v.
Potter, 352 F.3d 1142, 1144–45 (7th Cir. 2003) (“The test is
whether the district court has finished with the case.”). Here,
the district court gave no indication that it was prepared to re-
open the merits case. Instead, albeit mistakenly, the court
thought that the merits case overlapped with the Rule 60 ap-
peal. Under these circumstances, we conclude that the dismis-
sal of the merits appeal represented the district court’s last
word on the case as a whole.
It also makes no difference whether the district court en-
tered a separate judgment pursuant to Federal Rule of Civil
Procedure 58. Normally such a judgment is required, and it is
certainly good practice to take advantage of the rule, because
a Rule 58 judgment eliminates all doubt about the disposition
of a case. Nevertheless, the rules now address the question
what to do when no such judgment exists. Under Federal Rule
of Appellate Procedure 4(a)(7)(A)(ii), a civil judgment such as
this one becomes final on the earlier of two dates: the date of
entry of the separate judgment, or 150 days after entry of the
No. 17-1658 9
order in the civil docket. See Perry v. Sheet Metal Workers’ Local
No. 73 Pension Fund, 585 F.3d 358, 361 (7th Cir. 2009). A notice
of appeal would be due 30 days later. Fed. R. App. P.
4(a)(1)(A). Even if we were generously to treat Gleason’s no-
tice of appeal to this court in the Rule 60 case as if it were also
a notice of appeal in the merits case (and we doubt that this
would be proper), it was filed long after the 180-day mark and
thus is jurisdictionally late. See Bowles v. Russell, 551 U.S. 205,
214 (2007).
What, though, of the fact that Gleason was lulled by the
district court into thinking that he would be able to raise his
merits argument in his Rule 60 appeal? The Supreme Court’s
decision in Bowles furnishes the answer to that question, too.
Before Bowles, the courts of appeals had excused noncompli-
ance with civil appellate filing rules if “unique circum-
stances” existed, and they had singled out erroneous advice
from the district court as one such circumstance. The Supreme
Court squarely rejected that approach in Bowles, where it
wrote the following:
Today we make clear that the timely filing of a
notice of appeal in a civil case is a jurisdictional re-
quirement. Because this Court has no authority to
create equitable exceptions to jurisdictional re-
quirements, use of the “unique circumstances” doc-
trine is illegitimate.
Id. at 214. The Court acknowledged that such an inflexible
rule might occasionally yield inequitable results, but it held
that only Congress is empowered to create exceptions, and it
has not done so in the civil context. As applied here, this rule
means that Gleason is out of luck: the district court’s mistaken
assumption that it could reach the merits of his case in the
10 No. 17-1658
later-filed Rule 60 appeal is not enough to revive the dis-
missed merits appeal.
We conclude, therefore, that it is too late for Gleason to
obtain a remand for the district court to consider the underly-
ing merits of his case. Furthermore, we have no jurisdiction to
comment on any arguments that might have been raised on a
direct appeal. All that is properly before us is Gleason’s ap-
peal from the bankruptcy court’s refusal to grant relief under
Bankruptcy Rule 9024, which as we said incorporates Federal
Rule of Civil Procedure 60.
Our disposition of that narrow issue can be brief. Gleason
raised four grounds for relief from the bankruptcy court’s
judgment, but both the bankruptcy court and the district
court focused only on his argument based on newly discov-
ered evidence. See FED. R. CIV. P. 60(b)(2). The bankruptcy
court concluded, and the district court agreed, that evidence
that was available at all times on PACER is not “newly dis-
covered.” Gleason’s attorney urges that reasonable diligence
would not have revealed the evidence he found in the Fetla’s
Trading Post docket, because a PACER search for “Christo-
pher Jansen” does not bring up that case. But that is beside
the point: in its summary judgment order, the bankruptcy
court had already found and cited Fetla’s Trading Post, and so
it was no secret that Jansen was involved in that litigation. In-
deed, a quick look at the opinion reveals a caption listing Jan-
sen, Baytree, and Talcott as defendants. After the bankruptcy
court denied summary judgment, Gleason’s attorney had
nine months to review the case before the bankruptcy court’s
final ruling. This is not the stuff of a Rule 60(b)(2) motion. To
the contrary, as we noted in Kunik v. Racine Cnty., 106 F.3d
168, 174 (7th Cir. 1997), “untimely reviews of the record for
No. 17-1658 11
supporting evidence reveal cause for sanctions; they are not
the kind of ‘excusable neglect’ that Rule 60(b) is designed to
address.”
Gleason next contends that his “new” evidence demon-
strates fraud, misrepresentation, or misconduct for purposes
of Rule 60(b)(3). To justify relief from judgment on that
ground, the fraud must prevent the opposing litigant from
fully and fairly presenting a meritorious claim at trial. See
Wickens v. Shell Oil Co., 620 F.3d 747, 758–59 (7th Cir. 2010).
Jansen’s failure to produce the bank statements for account
100-177-5 might have violated a discovery order, but that is
not the same thing as fraud. We can assume for present pur-
poses that Jansen lied at trial. This evidence does undermine
his testimony that account 100-177-5 was never owned by Tal-
cott (a position he has contradicted in this court). Nonetheless,
the bankruptcy court did not abuse its discretion when it de-
nied Gleason’s motion for relief. Gleason’s evidence relates to
the question whether the mysterious account involved in Jan-
sen’s criminal case and account 100-177-5 were one and the
same. But that fact is only one, relatively minor, part of the
evidence that might have shown that Jansen defrauded
Gleason. Gleason still failed to prove that Jansen did not use
the money for the agreed purposes or that he obtained the
funds through intentional fraud. Or at least the bankruptcy
court could so find. It was thus within its authority to con-
clude that the interest in finality outweighed Gleason’s alle-
gations of misconduct.
Finally, Gleason argues that Jansen’s alleged perjury con-
stituted fraud on the court under Rule 60(d)(3), or that it jus-
tified relief under Rule 60(b)(6)’s catch-all provision. Neither
contention is correct. See Citizens for Appropriate Rural Rds. v.
12 No. 17-1658
Foxx, 815 F.3d 1068, 1080 (7th Cir. 2016) (“Fraud on the court
occurs only in the most extraordinary and egregious circum-
stances and relates to conduct that might be thought to cor-
rupt the judicial process itself, such as where a party bribes a
judge or inserts bogus documents into the record.”); Arrieta v.
Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (noting that Rule
60(b)(6) is mutually exclusive vis-à-vis Rule 60(b)(1)–(3)).
We AFFIRM the judgment of the district court.