Rock Hemp Corp. v. Adam Dunn ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1171
ROCK HEMP CORP.,
Plaintiff-Appellant,
v.
ADAM DUNN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 21-cv-00408 — James D. Peterson, Chief Judge.
____________________
ARGUED SEPTEMBER 21, 2022 — DECIDED OCTOBER 11, 2022
____________________
Before FLAUM, SCUDDER, and KIRSCH, Circuit Judges.
FLAUM, Circuit Judge. Appellant, Rock Hemp, contracted
with an entity called CBDINC to purchase 6,000 hemp seeds.
CBDINC is a fictitious business name used by Appellees,
Adam Dunn, Ryan Davies, and Shawn Kolodny. The contract
contains an arbitration clause requiring “[a]ny dispute arising
out of this Agreement” be resolved through “binding arbitra-
tion” in Denver, Colorado. Disappointed with CBDINC’s
hemp seeds, Rock Hemp sued Appellees individually, not
2 No. 22-1171
CBDINC, in Wisconsin state court. After Rock Hemp made
clear to Appellees that the amount in controversy exceeded
the jurisdictional minimum, Appellees removed the case to
federal court and filed a motion to dismiss the case for failure
to comply with the arbitration clause. In response, Rock
Hemp filed a motion to remand pursuant to 28 U.S.C. § 1447.
The district court granted Appellees’ motion to dismiss, de-
nied Rock Hemp’s motion to remand, entered judgment in fa-
vor of Appellees, and denied Rock Hemp’s subsequent mo-
tion for reconsideration under Federal Rule of Civil Proce-
dure 60. Rock Hemp appeals these rulings. For the following
reasons, we affirm the judgment of the district court.
I. Background
In its operative state court complaint, Rock Hemp alleged
that CBDINC is a business name or d/b/a through which Ap-
pellees conduct their business and Appellees sold the seeds in
question. Rock Hemp originally brought nine contract and
tort claims against Appellees, including breach of contract.
After Appellees filed a motion to dismiss, Rock Hemp
amended its complaint, leaving six counts remaining: fraud-
ulent representation; negligent, intentional, and strict liability
misrepresentation; and breaches of implied and express war-
ranty. Neither complaint specified the amount of damages
sought, only that it was “an amount to be determined, plus
prejudgment interest, all taxable costs and fees, actual attor-
neys[’] fees, [and] exemplary and/or punitive damages as ap-
plicable.” Appellees filed a motion to dismiss the amended
complaint.
No. 22-1171 3
At a status conference on May 10, 2021, the state court de-
termined that Appellees’ motion to dismiss would be con-
verted into a motion for summary judgment but reserved rul-
ing on the substance of the motion. Instead, the court permit-
ted the parties to engage in discovery and ordered them to file
motions for summary judgment supported by affidavits after
discovery closed.
On June 15, 2021, the day before the deposition of Rock
Hemp’s owner, counsel for Rock Hemp emailed Appellees’
counsel stating Rock Hemp was seeking $250,000 in damages.
Seven days later, on June 22, 2021, Appellees removed the
case to the United States District Court for the Western Dis-
trict of Wisconsin. There, Rock Hemp filed a motion to re-
mand, and Appellees filed a motion to dismiss for improper
venue. The district court found that Appellees timely exer-
cised, and did not waive, their right to removal, and accord-
ingly denied Rock Hemp’s motion to remand. In the same or-
der, it granted Appellees’ motion, finding Rock Hemp’s
claims were subject to arbitration. After the district court en-
tered final judgment for Appellees, Rock Hemp filed a Rule
60 motion for reconsideration. The district court denied that
motion the next day, concluding Rock Hemp inappropriately
raised new evidence and arguments in the motion. This ap-
peal ensued.
II. Discussion
A. Motion to Remand
We review de novo a district court’s denial of a motion to
remand. Sarauer v. Int'l Ass'n of Machinists, Dist. No. 10, 966
F.3d 661, 668 (7th Cir. 2020).
4 No. 22-1171
1. Timeline for Removal
Section 1446 sets out the requirements for removing a case
filed originally in state court. 28 U.S.C. § 1446. If a case is re-
movable based on the initial pleading, “the notice of removal
‘shall be filed within 30 days after the receipt by the defend-
ant … of a copy of the initial pleading setting forth the claim
for relief.’” Walker v. Trailer Transit, Inc., 727 F.3d 819, 823 (7th
Cir. 2013) (alteration in original) (quoting § 1446(b)(1)). How-
ever, “if the case stated by the initial pleading is not remova-
ble, a notice of removal may be filed within 30 days after re-
ceipt by the defendant, through service or otherwise, of a
copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable.” § 1446(b)(3). When the
thirty-day clock starts is not “a fact-intensive inquiry about
what the defendant subjectively knew or should have discov-
ered through independent investigation.” Walker, 727 F.3d at
825. Rather, “the clock commences only when the defendant
receives a post-complaint pleading or other paper that affirm-
atively and unambiguously specifies a damages amount suf-
ficient to satisfy the federal jurisdictional minimums.” Id.
Rock Hemp contends that removal was untimely because
its state court complaints put Appellees “on notice that Rock
Hemp’s claims exceeded the jurisdiction[al] amount” of
$75,000, and more than thirty days expired between when the
complaint was filed and when Appellees removed the case.
While Rock Hemp admits it did not “specify the specific dol-
lar amount it was seeking,” it points out that the complaints
“alleged deficiencies in the 6,000 seeds purchased from appel-
lees (which appellees knew from their own invoice were pur-
chased for $6,020)” and claimed “attorneys’ fees, exemplary
No. 22-1171 5
damages, punitive damages and prejudgment interest.” Rock
Hemp argues that Appellees were on notice of the amount in
controversy more than thirty days before removal because the
Wisconsin punitive damages statute provides that “[p]unitive
damages received by the plaintiff may not exceed twice the
amount of any compensatory damages recovered by the
plaintiff or $200,000, whichever is greater.” Wis.
Stat. § 895.043(6). On these bases, Rock Hemp claims the
thirty-day clock expired long before Appellees filed their no-
tice of removal on June 22, 2021.
In Walker v. Trailer Transit, Inc., this Court clarified what
triggers the start of the thirty-day time limit for removal. 727
F.3d at 823−26. At issue was when, if ever, the clock starts
where the plaintiff never “specifically disclos[ed] the dam-
ages demand” to the defendant, but instead, the defendant
“based its notice of removal on its own estimate of damages.”
Id. at 821. The plaintiff in Walker argued that the thirty-day
window expired because the defendant was able to “‘first as-
certain[]’ that the … theory of damages could result in recov-
ery of more than” the jurisdictional minimum from the com-
plaint, which alleged plaintiffs were “entitled to 71% of [the
defendant’s] ‘profits.’” Id. at 820–21. After attempting to clar-
ify with plaintiffs’ counsel the meaning of “profits,” defense
counsel performed its own calculation of damages and sup-
ported its notice of removal with an affidavit. Id. at 822. This
Court concluded the thirty-day clock never started because
the defendant never received “a pleading or other litigation
paper facially revealing … the damages sought.” Id. at
823−26. The plaintiffs’ claim to 71% of the defendant’s profits
was insufficient to trip the switch because it “did not affirma-
tively specify a damages figure.” Id. at 825.
6 No. 22-1171
Like the plaintiff in Walker, Rock Hemp did not specify the
amount of damages sought in either of its state court com-
plaints. While Rock Hemp asserts that Appellees “could have
sought to learn the amount in controversy months before they
did, through discovery or simply asking,” Walker makes ex-
plicit that inquiry into the subjective knowledge of the de-
fendant and assessment of what the defendant should have
discovered is improper. Id. It is also not reasonable to con-
clude that Appellees should have assumed the amount in con-
troversy threshold was met based off their knowledge that the
seeds cost $6,020, even in light of Rock Hemp’s punitive dam-
ages claim. In fact, the punitive damages statute Rock Hemp
cites sets a ceiling, not a floor, for punitive damage awards in
Wisconsin and therefore does not “affirmatively and unam-
biguously reveal[] that the predicates for removal are pre-
sent.” Id. at 824.
Rock Hemp contends that Walker is distinguishable and
points to Fate v. Buckeye State Mutual Insurance Co., a pre-
Walker, Northern District of Indiana case. 174 F. Supp. 2d 876(N.D. Ind. 2001). In Fate, the plaintiff filed a complaint in state
court against his insurance company seeking coverage for
damages to his home as a result of a lightning strike. Id. at
877–78. In his complaint, he sought $40,000 plus costs as well
as an unspecified amount of punitive damages. Id. at 878. Dis-
covery commenced after the defendant’s motion to dismiss
was denied, and the defendant learned through the plaintiff’s
discovery response that he was seeking more than $75,000 in
damages. Id. The defendant filed a notice of removal less than
thirty days later, but the court found removal was untimely
because the defendant “should have been on notice that the
amount-in-controversy requirement for diversity jurisdiction
may have been satisfied when it received Fate’s original
No. 22-1171 7
pleading” more than thirty days earlier. Id. at 878, 880. Rock
Hemp argues that we should apply Fate and find the thirty-
day clock began running “as soon as it be[came] likely that
the amount-in-controversy requirement w[ould] be satis-
fied”—in any event, more than thirty days before Appellees
filed their notice of removal. Id. at 880. We disagree.
Fate is distinguishable and does not displace this Circuit’s
precedent in Walker. First, the Fate plaintiff was constrained
by the Indiana Rules of Trial Procedure, which do not permit
plaintiffs to specify the amount of punitive damages sought.
Id. at 879–80; see also Ind. R. Trial P. 8(A)(2) (“[I]n any com-
plaint seeking … punitive damages, no dollar amount or fig-
ure shall be included in the demand.”). Rock Hemp analo-
gizes this to Wisconsin statute § 802.02(1m)(a), which prohib-
its a plaintiff from specifying the amount of money damages
sought in relation to a tort claim, arguing it was similarly
barred from articulating a damages figure in its complaint.
This argument falls short, however, because both Rock
Hemp’s complaints—even its amended complaint, which
omitted the breach of contract claim—asserted contract-based
claims to which § 802.02(1m)(a) does not apply. See Wis. Stat.
§ 802.02(1m)(a) (“With respect to a tort claim seeking the re-
covery of money, the demand for judgment may not specify
the amount of money the pleader seeks.”); Sweet Dreams Un-
limited, Inc. v. Dial-A-Mattress Int'l, Ltd., 1 F.3d 639, 643 (7th
Cir. 1993) (“We have routinely held that a party may not
avoid a contractual arbitration clause merely by casting its
complaint in tort.” (citation and internal quotation marks
omitted)).
Second, Walker articulated the difference between when “a
case becomes removable” and when “the 30–day removal
8 No. 22-1171
clock begins to run.” 727 F.3d at 824. Fate conflated these con-
cepts, concluding that the clock began to run because the de-
fendant had a basis to file a notice of removal. 174 F. Supp. 2d
at 880. However, to file a notice of removal, a defendant “need
only show that it is more likely than not that the case will ex-
ceed the jurisdictional threshold for diversity.” Id. at 879.
Walker makes clear that the thirty-day deadline only begins to
run when the plaintiff “affirmatively and unambiguously
specifies a damages amount sufficient to satisfy the federal ju-
risdictional minimums.” 727 F.3d at 825. The two events do
not necessarily coincide.
The first time Rock Hemp “specifically disclose[d] the
amount of monetary damages sought” was on June 15, 2021
in an email to Appellees’ counsel. Id. at 824. Therefore, the
district court correctly found that removal was timely, since
Appellees filed their notice of removal less than thirty days
later, on June 22, 2021.
2. Waiver of Right to Removal
Rock Hemp argues that even if Appellees’ removal was
timely, they waived their right to removal by litigating the
case in state court, specifically by filing motions to dismiss,
requesting a status conference, and participating in a hearing
on the motion to dismiss. Appellees counter that they filed
their motions to dismiss to avoid entry of a default judgment
and that the state court did not rule on their motions.
This Court has not revisited the subject of waiver of the
right to removal since Rothner v. City of Chicago, 879 F.2d 1402(7th Cir. 1989). The context of Rothner was an appeal from “an
order remanding a removed case to state court on the ground
that the defendant waived the right to remove prior to the
No. 22-1171 9
running of the thirty-day time period for removal by partici-
pating in state court proceedings.” Id. at 1403. Much of this
Court’s opinion dealt with whether we had jurisdiction to re-
view such an appeal under a prior version of 28 U.S.C.
§ 1447(d). Id. at 1405−07. After concluding that the issue was
reviewable, we went on to hold that Ҥ 1446(b) cannot be in-
terpreted to authorize remands on the ground of waiver.” Id.
at 1407, 1416. Reaching that conclusion, this Court reasoned
that the waiver doctrine developed to overcome issues with
the pre-1948 version of the removal statute, which the later
version solved by “set[ting] definite time limits” for removal.
Id. at 1415. We explained “cases involving waiver are now few
and far between, and, most importantly, the 1948–49 revisions
[to the removal statute] seem[] deliberately intended to elim-
inate it.” Id. at 1416. This Court concluded that waiver of the
right to removal may still be found under “the common law
doctrine of waiver … only where the parties have fully liti-
gated the merits” of the case in state court. Id.
Since Rothner, Congress amended § 1447 again and in do-
ing so deleted the language we interpreted to find that the ap-
peal was reviewable. Rock Hemp claims Rothner is no longer
good law in light of this revision and points this Court again
to Fate. The Fate court found that these revisions to § 1447
made Rothner “inapposite to [the] case” and thus held that the
defendant waived its right to removal by litigating the case in
state court for nearly a year, including arguing a motion to
dismiss, conducting discovery, and moving to bifurcate trial.
174 F. Supp. 2d at 878, 881−82. However, the post-Rothner
amendments to § 1447 did not impact Rothner’s conclusion
that Ҥ 1446(b) cannot be interpreted to authorize remands on
the ground of waiver.” Rothner, 879 F.2d at 1416. This conclu-
sion primarily relied on Congress’s imposition of definite
10 No. 22-1171
time limits in the removal statutes in 1949, Rothner, 879 F.2d
at 1415−16, and § 1446(b) has not substantively changed since
then, see 28 U.S.C. § 1446(b) (requiring notice of removal to be
filed “within 30 days after the receipt by the defendant” of the
triggering document). Indeed, unlike the court in Fate, “most
district courts in this Circuit have continued to follow Rothner
and have held that filing motions to dismiss or taking other
preliminary actions in state court does not constitute waiver
of the right to remove.” Perez v. Air & Liquid Sys. Corp., 223 F.
Supp. 3d 756, 760 (S.D. Ill. 2016) (collecting cases). Therefore,
the district court correctly concluded that this portion of Roth-
ner remains good law. Today we reiterate that Ҥ 1446(b) can-
not be interpreted to authorize remands on the ground of
waiver.” Rothner, 879 F.2d at 1416. 1
Furthermore, the district court in this case correctly con-
cluded that under the common law doctrine of waiver, Ap-
pellees did not waive their right to removal. Even the Fate
court described waiver as a high bar, noting that to constitute
waiver, a case must be “considered at length in state court”
and the defendant’s state court actions must demonstrate “a
clear and unequivocal waiver.” 174 F. Supp. 2d at 880, 881(emphasis added). Appellees’ decision to file motions to dis-
miss and begin discovery does not evince a clear and une-
quivocal intent to remain in state court, particularly where
1The text of Federal Rule of Civil Procedure 81 comports with this
decision. It explains “[a]fter removal, repleading is unnecessary unless the
court orders it. A defendant who did not answer before removal must an-
swer or present other defenses or objections under these rules.” Fed. R.
Civ. P. 81(c)(2). As this Court explained in Rothner, Rule 81 intimates that
removal is not waived by the defendant filing an answer in state court
prior to filing a notice of removal. 879 F.2d at 1415.
No. 22-1171 11
they had to file an answer or dispositive motion to avoid de-
fault judgment and where, at the time, they had no reason to
believe that any other jurisdiction was available to them. See,
e.g., Havoco of Am., Ltd. v. Sumitomo Corp., 971 F.2d 1332, 1337
(7th Cir. 1992) (“Waiver is an express or implied voluntary
and intentional relinquishment of a known and existing right.”
(emphasis added) (citation and internal quotation marks
omitted)). Moreover, contrary to Rock Hemp’s position, the
state court did not rule on the merits of Appellees’ motion to
dismiss; it merely converted the motion to one for summary
judgment and reserved ruling on its substance. Therefore,
Appellees’ actions do not constitute “fully litigat[ing] the mer-
its” of the case in state court. Rothner, 879 F.2d at 1416.
For these reasons, we affirm the district court’s denial of
Rock Hemp’s motion to remand.
B. Motion to Dismiss
Rock Hemp also appeals the district court’s grant of Ap-
pellees’ motion to dismiss. While Appellees brought their mo-
tion pursuant to Rule 12(b)(3) for improper venue, as the dis-
trict court recognized, the doctrine of forum non conveniens is
the correct “procedural mechanism to enforce [an] … arbitra-
tion clause.” Dr. Robert L. Meinders, D.C., Ltd. v. United
Healthcare Servs., Inc., 7 F.4th 555, 560 (7th Cir. 2021). We re-
view motions under the forum non conveniens doctrine for
abuse of discretion. Id. at 561. While the parties cite de novo
as the appropriate standard of review, our conclusion would
not change even under that, more rigorous, standard.
The parties’ contract contains an arbitration provision,
which provides:
12 No. 22-1171
Any dispute arising out of this Agreement (a
“Dispute”) shall be resolved solely according to
the procedures set forth in this section. The par-
ties shall first negotiate in good faith to attempt
to resolve the Dispute, including escalation to
representatives of each party at least one level
higher in their organizations. If the Dispute is
not so resolved within 30 days, either party may
initiate mediation. If the parties are unable to
the resolve the Dispute(s) by mediation, then ei-
ther party may initiate binding arbitration of
such Dispute(s). The binding arbitration shall be
initiated and conducted according to the JAMS
Comprehensive Arbitration Rules and Proce-
dures, including the Optional Appeal Proce-
dure provided for in such rules (the “Arbitra-
tion Rules”). The arbitration shall be conducted
in Denver, Colorado before a single neutral ar-
bitrator appointed in accordance with the Arbi-
tration Rules.
A court must enforce an arbitration clause where (1) there
is a valid agreement to arbitrate, (2) the claims fall within the
scope of the agreement, and (3) the opposing party refused to
arbitrate. Druco Restaurants, Inc. v. Steak N Shake Enterprises,
Inc., 765 F.3d 776, 781 (7th Cir. 2014). Since neither party dis-
putes the choice of law, and both cite Wisconsin law, we “ap-
ply the law of the forum state”—Wisconsin. FutureSource LLC
v. Reuters Ltd., 312 F.3d 281, 283 (7th Cir. 2002).
1. Legal Status of CBDINC
Rock Hemp argues that its contract with CBDINC is void,
and thus there is no valid agreement to arbitrate, because
No. 22-1171 13
CBDINC is a d/b/a, and, it asserts, “dba’s are prohibited from
entering into valid contracts.” This proposition is incompati-
ble with Wisconsin law.
Wisconsin courts have held that “[t]he designation, ‘d/b/a’
means ‘doing business as’ and is merely descriptive of the
person or corporation who does business under some other
name; it does not create or constitute an entity distinct from
the person operating the business.” Jacob v. W. Bend Mut. Ins.
Co., 553 N.W.2d 800, 805 n.7 (Wis. Ct. App. 1996). A Wisconsin
appellate court expounded on this conclusion in Binon v. Great
Northern Insurance Co., concluding that a d/b/a “has no inde-
pendent legal status or significance.” 580 N.W.2d 370, 374
(Wis. Ct. App. 1998) (emphasis added). In Binon, the court
held that an insured, Arrow Motors, qualified as a motor ve-
hicle handler under a statute because it “sells, leases, services
and repairs motor vehicles” both under its own name and
through d/b/a designations. Id. at 372. It reached this conclu-
sion even though the actions of its d/b/a entity, Lease Associ-
ates Group, were at issue, and that d/b/a was not a motor ve-
hicle handler because it exclusively leased vehicles. Id. at 374.
The court held that it was appropriate to “look to all the ac-
tivities and services of … [the insured,] Arrow Motors, not
merely the activities of its leasing division, Lease Associates
Group.” Id. at 374. That is because a d/b/a “does not create or
constitute an entity distinct from the person operating the
business.” Id.More recently, the Wisconsin Supreme Court harmonized
the reasoning in Binon and Jacob. It held that “if the name un-
der which a person or corporation does business is ‘simply
another way to refer to’ a single legal entity and constitutes
no entity distinct from the person or corporation who does
14 No. 22-1171
business, then a judgment against the ‘doing business as’
name is enforceable against the legal entity from which it is
indistinct.” Paul Davis Restoration of S.E. Wis., Inc. v. Paul Davis
Restoration of Ne. Wis., 831 N.W.2d 413, 422 (Wis. 2013). The
court described this conclusion as “consistent with the ap-
proach taken on this question by the majority of other juris-
dictions that have addressed it.” Id. at 415. While the context
of this case is different, the Wisconsin Supreme Court’s rea-
soning is applicable and confirms that, under Wisconsin law,
when a d/b/a enters into a contract, the actual legal entity en-
tering into the contract is the person or corporation acting
through the d/b/a. 2
In contrast to Rock Hemp’s assertion that d/b/as or ficti-
tious entities cannot enter into a contract, Wisconsin law dic-
tates that not only can such an entity enter into a contract, but
the real actor behind the fictitious name can enforce the con-
tract, seek remedies, and is responsible for judgments. Fur-
thermore, Rock Hemp does not allege that it was confused or
deceived about who it was contracting with. See Howells v. Al-
bert, 236 N.Y.S.2d 654, 657 (N.Y. App. Div. 1962) (“The use of
an assumed name, if not employed for deceitful or dishonest
2 The district court relied on an out-of-circuit case that reached the
same conclusion. Premier Finishes, Inc. v. Maggirias involved a construction
lien sought by Premier Finishes after it entered into a contract with a
homeowner under a fictitious business name, PFI Construction. 130 So. 3d
238, 243 (Fla. Dist. Ct. App. 2013). The court found Premier Finishes was
“entitled to proceed with the claim of lien” even though the contract
named PFI Construction. Id. at 241, 243. The court reasoned that “[a] con-
tract entered into under a fictitious name is valid and enforceable” and
“the real entity that uses the fictitious name when entering into the con-
tract is the actual party to the contract.” Id. at 241.
No. 22-1171 15
purposes, is legal.”). In fact, it alleged in its complaint that
“[r]egardless of any reference to the non-existent ‘CBD, Inc.,’
it was the [Appellees] who sold the seeds as described below
to Rock Hemp Corp.” and, consistent with that assertion,
Rock Hemp sued Appellees instead of CBDINC.
Finally, Rock Hemp claims Appellees do not have stand-
ing to enforce the contract between Rock Hemp and CBDINC
because the contract was not signed by Appellees on behalf of
CBDINC, but instead by another individual, Matt Kahn. As
an initial matter, Kahn’s signature does not appear on the con-
tract. Rather, his name and email address are listed as the per-
son who created the seed order form (which is part of the con-
tract) on behalf of CBDINC. Moreover, the lack of signature
on behalf of CBDINC does not impact the validity of the con-
tract given that nothing in the contract indicates a signature
was required. See Chudnow Const. Corp. v. Com. Discount Corp.,
180 N.W.2d 697, 698 (Wis. 1970) (“So far as the common law
is concerned, the making of a valid contract requires no sig-
nature unless the parties have made them necessary at the
time they express their assent and as a condition modifying
that assent.”). Moreover, it is undisputed that “[t]he three
named [Appellees] were the alleged members of CBD, Inc.,”
the entity that Rock Hemp contracted with, and they sold the
seeds to Rock Hemp using the d/b/a CBDINC. Thus, like the
district court, we reject Rock Hemp’s contention that Appel-
lees lack standing to enforce the contract.
Since the allegations in the complaint make clear that
CBDINC was not a distinct legal entity from the Appellees,
and Rock Hemp does not allege it was confused or deceived
by use of the d/b/a, the district court correctly concluded that
16 No. 22-1171
the contract is valid and Appellees have standing to enforce
it.
2. Fraudulent Inducement
Rock Hemp claims the entire contract, including the arbi-
tration clause, is void because it was induced to enter into the
agreement by Appellees’ material misrepresentations regard-
ing the quality of the hemp seeds. However, Rock Hemp does
not claim that it was fraudulently induced into agreeing to ar-
bitrate. That dooms its argument.
The Supreme Court, in Prima Paint Corp. v. Flood & Conklin
Manufacturing Co., held that a party cannot avoid an arbitra-
tion clause by claiming the entire contract was fraudulently
induced. 388 U.S. 395, 404 (1967) (“[T]he statutory language
does not permit the federal court to consider claims of fraud
in the inducement of the contract generally.”). In contrast, “if
the claim is fraud in the inducement of the arbitration clause
itself—an issue which goes to the ‘making’ of the agreement
to arbitrate—the federal court may proceed to adjudicate it.”
Id. at 403−04. This Court later emphasized that “courts will
not allow a party to unravel a contractual arbitration clause
by arguing that the clause was part of a contract that is void-
able, perhaps because fraudulently induced.” Colfax Envelope
Corp. v. Loc. No. 458−3M, Chicago Graphic Commc'ns Int'l Un-
ion, 20 F.3d 750, 754 (7th Cir. 1994).
Because Rock Hemp does not claim it was induced into
agreeing to arbitrate, Prima Paint is controlling. Rock Hemp
only alleges that Appellees fraudulently misrepresented the
quality of the seeds sold. These alleged misrepresentations do
not vitiate the formation of the arbitration clause. Therefore,
“the issue of the contract’s validity [must be] considered by
No. 22-1171 17
the arbitrator in the first instance.” Buckeye Check Cashing, Inc.
v. Cardegna, 546 U.S. 440, 445–46 (2006).
3. Scope of Arbitration Agreement
Rock Hemp does not claim that, should an enforceable
agreement to arbitrate be found, its claims fall outside the
scope of the agreement. The parties also do not dispute that
Rock Hemp refused to arbitrate its claims, satisfying the final
two requirements for a court to enforce an arbitration clause.
Druco Restaurants, Inc., 765 F.3d at 781 (“To compel arbitra-
tion, a party need only show: (1) an agreement to arbitrate,
(2) a dispute within the scope of the arbitration agreement,
and (3) a refusal by the opposing party to proceed to arbitra-
tion.”). Thus, the district court did not err by granting the mo-
tion to dismiss, more accurately styled as a motion under the
doctrine of forum non conveniens.
C. Rule 60 Motion
Last, Rock Hemp appeals the district court’s denial of its
Rule 60 motion for reconsideration. Rule 60(b) provides a
pathway for a litigant to seek relief from a final judgment, or-
der, or proceeding for several reasons, including “newly dis-
covered evidence that, with reasonable diligence could not
have been discovered in time to move for a new trial under
Rule 59(b).” Fed. R. Civ. P. 60(b)(2). Neither in the district
court nor on appeal did Rock Hemp specify which section of
Rule 60 it invoked. However, the district court interpreted
Rock Hemp’s request as a Rule 60(b)(2) motion and denied it
because Rock Hemp attached and cited new declarations in
support of its motion and did not justify “why it could not
have presented its new arguments and evidence earlier.”
18 No. 22-1171
Rock Hemp claims that its “motion was based upon the
same arguments [it] raised” previously in the district court. It
also complains that in addition to “fail[ing] to even consider
the arguments contained within the Motion for Reconsidera-
tion, the district court ignored [its] demand for a jury trial,”
as renewed in its Rule 60 motion. However, Rock Hemp did
not explain how the declarations qualify as “newly discov-
ered evidence” under Rule 60(b)(2) or fit into any other sub-
section of Rule 60, and it cited no law to support its argument.
Seventh Circuit precedent is clear that “perfunctory and un-
developed arguments, as well as arguments that are unsup-
ported by pertinent authority, are waived.” White v. United
States, 8 F.4th 547, 552 (7th Cir. 2021). Rock Hemp’s opening
brief contains only two sentences concerning the motion for
reconsideration, with no citations and thin argument. This is
not sufficient to preserve a claim on appeal.
Even if Rock Hemp had fully developed its argument, de-
nials of Rule 60(b) motions are reviewed “under ‘an extremely
deferential abuse of discretion standard.’” In re Cook Med.,
Inc., 27 F.4th 539, 542 (7th Cir. 2022) (quoting Eskridge v. Cook
Cnty., 577 F.3d 806, 808 (7th Cir. 2009)). It is a “formidable
challenge” to demonstrate “that the court abused its discre-
tion in denying relief under Rule 60(b).” Eskridge, 577 F.3d at
807. Applying this standard of review, the question “is not
whether the district court might have decided differently, but
whether the court’s denial of the [] Rule 60(b) motion was un-
reasonable.” Id. at 810.
While the district court ruled quickly and succinctly in a
minute order entered the day after Rock Hemp filed its Rule
60 motion, the court reasonably concluded that the motion
No. 22-1171 19
“raise[d] several new arguments … and cite[d] new declara-
tions to support the motion.” The court cited two Seventh Cir-
cuit cases for the proposition that Rule 60 motions do not per-
mit litigants to raise new arguments or evidence—including
new affidavits. See, e.g., Frietsch v. Refco, Inc., 56 F.3d 825, 828
(7th Cir. 1995) (where plaintiffs submitted a new affidavit in
support of a Rule 60 motion the court was “not obliged to con-
sider” it because “[i]t is not the purpose of allowing motions
for reconsideration to enable a party to complete presenting
his case after the court has ruled against him”). A review of
Rock Hemp’s briefing in the district court reveals it raised at
least one new argument in its Rule 60 motion—that Appellees
did not have a Wisconsin seed labeler’s license. This is the
type of new argument, supported by new evidence in the
form of declarations, not permitted under Rule 60 absent a
showing that the evidence could not have been discovered
earlier. See Bumphus v. UniQue Personnel Consultants, 805 F.
App’x 427, 429 (7th Cir. 2020) (holding the district court
properly denied a Rule 60(b) motion where the movant failed
to assert that they “could not with diligence have acquired
[the new evidence] … sooner.”).
Moreover, Rock Hemp’s strategy to renew its demand for
a jury trial in its Rule 60 motion does not make the court’s
prior ruling reviewable where the district court granted Ap-
pellees’ motion to dismiss. By granting the motion to dismiss,
the district court concluded that no claims remained to be
tried by a jury. Carroll v. Morrison Hotel Corp., 149 F.2d 404, 408
(7th Cir. 1945) (noting “triable issue[s]” of fact cannot “be de-
cided on a motion to dismiss”). The district court’s denial of
the Rule 60 motion was far from unreasonable.
20 No. 22-1171
III. Conclusion
For the reasons explained above, we AFFIRM the judgment
of the district court in favor of Appellees.