Kevin Carter v. CVS Pharmacy ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 14, 2022 *
Decided July 21, 2022
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2836
KEVIN E. CARTER, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern District
of Illinois, Eastern Division.
v. No. 19-cv-06296
CVS PHARMACY, INC., Andrea R. Wood,
Defendant-Appellee. Judge.
ORDER
This is Kevin Carter’s third federal appeal arising from two lawsuits in which he
brought workplace-discrimination claims against his former employer. Both cases were
dismissed because of a duty to arbitrate the claims, and we already affirmed the denial
of Carter’s motion for relief from the judgment in one case. We now do the same with
respect to his postjudgment motion in the second case.
*This successive appeal has been submitted to the original panel under
Operating Procedure 6(b). We unanimously agree to decide the case without argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 21-2836 Page 2
Carter first unsuccessfully sued his former employer, CVS Pharmacy, Inc., for
discrimination in 2018. District Judge Virginia Kendall dismissed the complaint without
prejudice, concluding that the claims were covered by a valid and enforceable
arbitration agreement. In arbitration, Carter’s claim was barred as untimely. He
appealed the dismissal of his federal case, but that appeal was also untimely. See Carter
v. CVS Pharmacy, Inc., No. 19-2511, 2019 WL 11584992 (7th Cir. Sept. 17, 2019). He then
moved for relief from the judgment under Federal Rule of Civil Procedure 60(b)(2)–(3),
asserting that he had new evidence and that CVS committed fraud on the court. Judge
Kendall denied his motion and dismissed the suit with prejudice. We affirmed.
See Carter v. CVS Pharmacy, Inc., 827 F. App’x 601 (7th Cir. 2020).
Around the same time, Carter filed another lawsuit, which was assigned to Judge
Andrea Wood. He re-alleged his discrimination claims against CVS, and added claims
of conspiracy and breach of contract. CVS moved to dismiss based on the arbitration
agreement (without raising a defense of claim preclusion). Judge Wood granted the
motion, again upholding the mandatory arbitration clause. Carter filed two motions
under Rule 60(b)(3), asserting that CVS committed fraud on the court, and appealed the
decisions denying them. As explained in a previous order, under 28 U.S.C. § 2107(a),
this appeal is timely only with respect to the second motion. Carter v. CVS, No. 21-2836,
Doc. 9, (March 1, 2022).
This appeal is successive to the one we already addressed. It derives from a
separate suit, but that suit is duplicative: it involves the same essential facts with respect
to the underlying discrimination claim and the circumstances under which Carter
consented to arbitrate such disputes. Seventh Circ. Operating Procedure 6(b); see Lardas
v. Grcic, 847 F.3d 561, 565 (7th Cir. 2017) (treating as related two appeals of proceedings
“aris[ing] from a long-running and acrimonious business dispute”).
In this appeal, Carter mainly reiterates his arguments that the arbitration
agreement is invalid. He insists that he had no meaningful opportunity to review the
agreement before signing it via electronic consent and that CVS concealed its terms and
then prevented him from pursuing even the arbitration process that it requires.
We review the denial of Carter’s second Rule 60(b)(3) motion for an abuse of
discretion. See Krivak v. Home Depot U.S.A., Inc., 2 F.4th 601, 606 (7th Cir. 2021) (same
standard applies to successive Rule 60(b) motions). Carter has given us no reason to
question Judge Wood’s decision not to reconsider her ruling that his discrimination
No. 21-2836 Page 3
claims must be presented, if at all, to an arbitrator. The motion under review here
presented no ground for vacating the dismissal based on fraud. As Judge Wood
explained, Carter identified no specific misconduct or misrepresentations by CVS in
procuring the dismissal, and provided no new evidence of wrongdoing. On appeal, he
attempts to supply such evidence, but we may not consider it for the first time. See FED.
R. APP. P 10(e).
We note that because Carter’s second lawsuit advanced the “same substantive
claims” against the same defendant, Ewing v. Carrier, 35 F.4th 592, 593–94 (7th Cir. 2022),
CVS could have raised a preclusion defense under Illinois law instead of re-arguing the
applicability of the arbitration clause. See Walczak v. Chicago Bd. of Educ., 739 F.3d 1013,
1016 (7th Cir. 2014). Along those lines, we caution Carter that “the judicial system
cannot tolerate litigants who refuse to accept adverse decisions.” Homola v. McNamara,
59 F.3d 647, 651 (7th Cir. 1995). Further duplicative suits or appeals may result in a
monetary fine and a filing bar until he pays in full. See Support Systems International, Inc.
v. Mack, 45 F.3d 185 (7th Cir. 1995).
AFFIRMED