The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
Wale Ade-Oshifogun was employed by Defendant, Prairie Hills Elementary School District #144, until June 2009. The District chose not to renew his employment contract after an investigation of allegations that Plaintiff had sexually harassed some of his subordinates. AdeOshifogun brought a laundry list of claims against the women who had complained and against the School District and its officials. After months of contentious discovery and motion practice, Plaintiff voluntarily dismissed his lawsuit. He now moves pursuant to FED. R. CIV. P. 60(b) to vacate the dismissal, arguing that Defendants are guilty of fraud and that he has new evidence that could not have been discovered earlier. For the reasons explained below, the motion is denied.
In the wake of an investigation of sexual harassment allegations, Ade-Oshifogun received notice in April 2009 that his employment contract with the School District would not be renewed for the following academic year. He initiated this lawsuit in October 2009, naming, as Defendants, the person who reported the alleged harassment, three employees who furnished information during the investigation, the School District, and several District officials. Plaintiff's Second Amended Complaint , filed on March 12, 2010, spans 85 pages and includes 442 allegations and 18 counts: one count of national origin discrimination (Count I); one count of breach of contract (Count II); one count of wrongful discharge (Count III); five counts of defamation (Counts IV, V, VI, VII, and VIII); five counts of "false light" invasion of privacy (Counts IX, X, XI, XII, and XIII); and five counts of intentional infliction of emotional distress (Counts XIV, XV, XVI, XVII, and XVIII). The various Defendants answered certain of these claims and filed motions to dismiss and for summary judgment on other counts.
Discovery and motion practice ensued. The parties briefed and argued motions to compel and for discovery limitations. Then on December 29, 2010, facing at least two dispositive motions, Mr. Ade-Oshifogun moved for voluntary dismissal of his case, with prejudice, for "undisclosed reason(s) best known to the Plaintiff." (Verified Mot. for Voluntary Dismissal .) The court granted that motion and dismissed the case with prejudice on January 6, 2011. Defendants filed their bill of costs on January 18, 2011. They also filed a motion for sanctions pursuant to Rule 11, contending that Plaintiff's claims were frivolous from their inception and had generated significant unnecessary expense. Over several weeks, the parties briefed the issues of costs and sanctions.
In June 2011, Mr. Ade-Oshifogun had a change of heart about his decision to dismiss the case. He moved to vacate the dismissal order, asserting, without elaboration, that "there is evidence of strong possibility that the Defendants and their attorneys committed fraud upon the Court and against the Plaintiff." (Pl.'s Mot. to Vacate Order of Jan. 6, 2011 Dismissing This Case with Prejudice and Reinstate Case .) The court struck that motion without prejudice, directing that any renewed motion be "supplemented with sworn factual support." (June 25, 2011 Minute Order .) Plaintiff did renew the motion. He now asserts that on March 6, 2011, two School Board members, Sarah Hamm and Anthony Cole, came forward with sworn statements, more fully described below, that contradicted assertions Defendants had made in this litigation. Plaintiff argues in addition, that Defendants and their witnesses had made knowing false statements in this litigation. According to Plaintiff, these circumstances support Rule 60(b) relief.
As the Seventh Circuit has recently explained, "relief under Rule 60(b) is an extraordinary remedy granted only in exceptional circumstances." Nelson v. Napolitano, 657 F.3d 586, 589 (7th Cir. 2011) (citing Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010); Eskridge v. Cook Cnty., 577 F.3d 806, 809 (7th Cir. 2009)). Whether to grant such relief is a matter within the discretion of the district court. Wickens, 620 F.3d at 758; Eskridge, 577 F.3d at 808-09. The Rule authorizes relief from a judgment under a number of circumstances including, as relevant here, where there is "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)" or "fraud . . . , misrepresentation, or misconduct by an opposing party." FED. R. CIV. P. 60(b)(2)-(3). The case law demonstrates that relief under Rule 60(b) is extraordinary. Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994). Fraud is a basis for such relief only where the adverse party's conduct prevented the moving party from fully and fairly presenting a meritorious claim. Wickens, 620 F.3d at 758-59 (citing Ty Inc. v. Softbelly's Inc., 353 F.3d 528, 536 (7th Cir. 2003); Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995)).
In a 34-page memorandum, Plaintiff urges that these tests are met. He contends that Defendants took false positions in the litigation. He also asserts, without offering specific details, that two witnesses have recently come forward to offer evidence inconsistent with Defendants' assertions. Having carefully reviewed the materials submitted by Plaintiff, the court finds no basis for any finding of fraud. To the extent that Ms. Hamm and Mr. Cole have information that rebuts positions taken by Defendants in this lawsuit, Plaintiff has made no effort to demonstrate that the information was unavailable to him during the pendency of the lawsuit. To the contrary, Plaintiff identified Ms. Hamm and Mr. Cole as persons "likely to have discoverable information relevant to disputed facts" in his Rule 26(a)(1) disclosures, submitted in June 2010. (Pl.'s Initial Disclosure, Ex. 2 to Supplemental Response Brief .) Finally, the court notes that many of the disputes Plaintiff now highlights are not material to the claims he asserted in this lawsuit. The court discusses the specific bases for Plaintiff's motion below.
First, in arguing that the dismissal order should be vacated for fraud, Plaintiff focuses much of his attention on the testimony of Dr. Kimako Patterson, one of the named Defendants. Dr. Patterson was involved in the investigation of sexual harassment allegations against Plaintiff, but her participation was improper, Plaintiff contends, because Dr. Patterson herself had a sexual harassment claim against him. Dr. Patterson was asked about this matter at her deposition; when asked whether she "also had a complaint of sexual harassment against [Plaintiff]," Dr. Patterson responded, "No, I did not." (Pl.'s Mot. to Vacate Order of Jan. 6, 2011 Dismissing This Case With Prejudice and Reinstate Case  (hereinafter "Pl.'s Mot. to Vacate"), at 4.) But this statement was false, Plaintiff insists; he contends Ms. Hamm and Mr. Cole have asserted that Dr. Patterson did indeed accuse Plaintiff of sexual harassment before the School Board.
As the court reads Ms. Hamm's and Mr. Cole's affidavits, they do not directly contradict Dr. Patterson's testimony. Ms. Hamm asserted that Dr. Pattterson "openly accused [Plaintiff] of sexual harassment . . . in that [Plaintiff] allegedly made a statement of sexual nature to her." (Hamm Aff., Ex. C to Pl.'s Mot. to Vacate, ¶ 5.) Mr. Cole asserted that Dr. Patterson "accused [Plaintiff] of sexual harassment . . . and alleged that [Plaintiff] made a statement of sexual nature to her." (Cole Aff., Ex. D to Pl.'s Mot. to Vacate, ¶ 5.) Dr. Patterson's "open accusations" might well, of course, have been statements about Plaintiff's harassment of other workers. And her reference to a "statement of sexual nature" likely related to the fact, now admitted by Plaintiff, that Plaintiff had told Dr. Patterson (his supervisor) that she is "cute, intelligent, and had a big butt." (Plaintiff alleged that this statement was a lie (Second Am. Compl.  ¶¶ 266, 399), but in response to discovery requests acknowledged that he had indeed used those words in speaking with Dr. Patterson "within the context of weight reduction and professional appearance." (Pl.'s Supplemental Answer to Def.'s First Set of Interrogs., Ex. B to Defs.' Brief in Supp. of Their Mot. for Sanctions Pursuant to Rule 11  (hereinafter "Defs.' Sanctions Brief"), at 3.).)
There is no evidence that any comments or accusations Dr. Patterson made amounted to a "complaint" of sexual harassment on her own behalf. Indeed, Ms. Hamm and Mr. Cole themselves state, under oath, that "[t]here was never any time that Dr. Foster, Dr. Kimako Patterson or any other supervisors in Technology Department for the School District brought any allegations of sexual harassment against [Plaintiff] to the Board." (Hamm Aff. ¶ 35; Cole Aff. ¶ 35.) Though Plaintiff suggests Dr. Patterson concealed from him the fact that she did make statements about him to the School Board, Defendants note that during Dr. Patterson's deposition, counsel never asked her what statements she had made to the Board. There is no basis for a finding of fraud here.
Plaintiff's second argument fares no better. Plaintiff urges that Dr. Patterson falsely testified that she and Camille Cribaro-Mello together performed the investigation of sexual harassment allegations against Plaintiff. In fact, Plaintiff asserts, Ms. Hamm and Mr. Cole have confirmed that Attorney Robert Riley also served on the investigative team. Yet when asked what role Riley played in the investigation, Dr. Patterson said she did not understand the question. Plaintiff contends that Dr. Patterson herself, as well as the attorneys who participated in her deposition, had an obligation to correct the record and disclose Mr. Riley's participation in the investigation. Had they done so, Plaintiff urges, ...