Wendell F. Gilley v. Monsanto Company, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12303 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:04-cv-00562-CLS-HGD
WENDELL F. GILLEY,
an individual and as class representative,
Plaintiff-Appellant,
versus
MONSANTO COMPANY INC.,
a corporation,
MONSANTO COMPANY SALARIED EMPLOYEES' PENSION PLAN,
EMPLOYEE BENEFITS PLAN COMMITTEE,
PHARMACIA CORPORATION,
a corporation,
MONSANTO COMPANY EMPLOYEE BENEFITS EXECUTIVE
COMMITTEE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 31, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Following two previous appeals to this Court,1 Wendell F. Gilley appeals
the district court’s denial of his motions for relief from judgment under Fed. R.
Civ. P. 60(b) and (d) and for attorneys’ fees. In his third appeal, Gilley argues the
district court abused its discretion by denying his motion for relief from judgment
under Rule 60(b)(3), (4), (5), and (6) and under Rule 60(d)(3). Gilley also claims
the district court abused its discretion by denying his request for attorneys’ fees and
costs. After review, we affirm.2
I.
Gilley contends the district court should have granted relief because the
defendants schemed to usurp the court’s jurisdiction to deprive Gilley and others of
their vested rights to a pension governed by the Employee Retirement and Income
Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq.
1
See Gilley v. Monsanto Co., 490 F.3d 848 (11th Cir. 2007); Gilley v. Monsanto Co.,
309 F. App’x 362 (11th Cir. 2009).
2
We review for abuse of discretion the district court’s denial of a Rule 60(b) motion.
Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842 (11th Cir. 2008). However,
we review de novo a district court’s ruling on a Rule 60(b)(4) motion because the question of the
validity of a judgment is a legal one. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001).
2
Rule 60(b) allows a party to request relief from a final judgment. The
appellant must “demonstrate a justification so compelling that the court was
required to vacate its order.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115
(11th Cir. 1993). In relevant part, Rule 60(b) provides the following grounds for
relief:
(3) fraud . . . , misrepresentation, or misconduct by an opposing
party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Rule 60(d), a savings clause, provides that Rule 60 does not
limit the court’s power to set aside a judgment for fraud on the court. Fed. R. Civ.
P. 60(d)(3).
Rule 60(c) requires that a Rule 60(b) motion “be made within a reasonable
time—and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment . . . .” Fed. R. Civ. P. 60(c)(1). Nevertheless, an independent action for
“fraud on the court” under Rule 60(d) may be brought at any time. Rozier v. Ford
Motor Co., 573 F.2d 1332, 1337-38 (5th Cir. 1978).
The district court did not abuse its discretion by denying Gilley’s motion for
relief from judgment. To the extent Gilley sought relief under Rule 60(b)(3), his
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motion was untimely because it was filed more than a year after the district court’s
order dismissing the action. Fed. R. Civ. P. 60(c)(1). Furthermore, Gilley’s
allegations of fraud were merely a rehash of arguments previously considered and
rejected by both this Court and the district court. Relief under Rule 60(b)(4) was
not appropriate because Gilley identified no jurisdictional or other defect that
would render the judgment void. Relief under Rule 60(b)(5) was likewise
inappropriate because the district court’s judgment dismissing the action for lack of
standing has not been satisfied, released, discharged, reversed, or vacated.
Moreover, the district court’s order was final, permanent, and had no prospective
effect within the meaning of Rule 60(b)(5). See Gibbs v. Maxwell House, Div. of
Gen. Foods Corp., 738 F.2d 1153, 1156 (11th Cir. 1984) (“That [the] plaintiff
remains bound by the dismissal is not a ‘prospective effect’ within the meaning of
rule 60(b)(5) any more than if plaintiff were continuing to feel the effects of a
money judgment against him.”). Finally, Gilley failed to identify an “exceptional
circumstance” warranting relief under Rule 60(b)(6). See Cavaliere, 996 F.2d at
1115 (noting relief under Rule 60(b)(6) is an “extraordinary remedy which may be
invoked only upon a showing of exceptional circumstances”).
Additionally, the record fails to reveal any evidence of fraud on the court.
Gilley’s evidence of “fraud” stems entirely from a purported scheme among the
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defendants to deny pension benefits to former employees. Gilley offers only a
rehash of previously rejected arguments. Furthermore, in relying on a conflict of
interest and “bias” among the defendants, Gilley fails to identify any improper
misconduct designed to influence the decision of a court. See Travelers Indem. Co.
v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (stating fraud between the parties is
not fraud on the court). Accordingly, the district court did not abuse its discretion
by denying relief under Rule 60(d)(3).
II.
Gilley also argues the district court erred by denying his request for
attorneys’ fees and costs.3 Although Gilley asserted in the district court that he was
entitled to fees and costs under 28 U.S.C. § 1927 and Rule 11, Gilley argues on
appeal only that he was entitled to fees and costs under ERISA and the court’s
inherent authority to sanction a party. Because Gilley failed to seek fees or costs
under ERISA or under the district court’s inherent authority before the district
court, we decline to address these issues. See Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (stating this Court will not
consider an issue not raised before the district court).
3
Throughout Gilley’s brief, his counsel refers to herself as “Plaintiff’s Representative”
and seeks relief on her own account by including herself as a party to the appeal. Counsel cites
no authority for granting relief to her personally, and we decline to do so.
5
AFFIRMED.
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