Victor D. Acevedo v. Heinemann’s Bakeries, Inc.

* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 29, 2009 *
Decided July 29, 2009
Before
RICHARD A. POSNER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐4086
VICTOR D. ACEVEDO, et al.,
Plaintiffs,
v.
HEINEMANN’S BAKERIES, INC.,
Defendant‐Appellee.
Appeal of:
WILLIAM A. RIMKUS
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 06 C 3252
George W. Lindberg,
Judge.
O R D E R
William Rimkus appeals the denial of his Rule 60(b) motion to reconsider the district
court’s decision refusing his request to void a settlement agreement with his former
employer Heinemann’s Bakeries, Inc. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 3 --

No. 08‐4086 Page 2
Rimkus and other former employees of Heinemann’s sued the company for
violations of state and federal law arising from the abrupt closure of the production facility
where they worked. In July 2007 Rimkus, along with 101 other plaintiffs, agreed to settle
with Heinemann’s, but he regretted his decision once he learned that other former
employees held out for a better deal. So in September Rimkus and a handful of other
former plaintiffs moved the district court to void the settlement agreement. They asserted
that they were deceived by two representations made by their counsel and Heinemann’s:
(1) that the company would settle the lawsuit only if all of the plaintiffs agreed and (2) that
the company was in such dire financial condition that it could not afford to pay a large sum.
After a hearing, the court denied the motion on the ground that it was factually
unsupported. The court explained that the agreement did not make the settlement
contingent on participation by all plaintiffs, that the plaintiffs’ lawyers fully explained all
the terms, and that the bakery was, in fact, out of business and had only limited funds to
pay the plaintiffs.
The remaining plaintiffs and Heinemann’s filed cross‐motions for summary
judgment, which the district court denied. The parties eventually settled, and in August
2008, the district court entered final judgment.
Rimkus did not appeal the district court’s denial of his motion to void the settlement
agreement. Instead, in October 2008, he filed a motion under Federal Rule of Civil
Procedure 60(b) asking the court to reconsider. He asserted that in refusing to void the
settlement agreement, the court relied on erroneous factual findings and that its conclusion
was incorrect in light of new evidence that Heinemann’s had forged a document purporting
to notify employees about the closing of the plant. The court denied the motion later that
October, and the following month Rimkus filed a notice of appeal. However, because he
failed to file the notice within 30 days of the underlying judgment, we limited the appeal to
a review of the district court’s order denying reconsideration.
On appeal, as in the district court, Rimkus styles his argument as an attack on the
denial of his Rule 60(b) motion. The substance of his argument, however, focuses on errors
he says the district court made in denying the underlying motion to void the settlement
agreement. Specifically, Rimkus contends that the court misunderstood the company’s
financial condition, overlooked changes that the bakery made to the terms of the settlement
agreement after it was signed, wrongly concluded that the agreement did not require the
assent of all of the plaintiffs, and improperly prevented the plaintiffs from testifying at the
hearing. Rimkus, though, should have raised all of these arguments in a timely direct
appeal from the final judgment. Rule 60(b) is not a substitute for direct appeal, and thus

-- 2 of 3 --

No. 08‐4086 Page 3
Rimkus’s attempt to use it in this manner was appropriately rejected. See Stoller v. Pure
Fishing Inc., 528 F.3d 478, 480 (7th Cir. 2008); Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.
2002); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000).
Rimkus does raise a pair of arguments that may be considered under Rule 60(b). He
invokes the “newly discovered evidence” doctrine of Rule 60(b)(2), contending that during
discovery—but after he settled—Heinemann’s forged a document concerning the plant’s
closing. This argument fails on multiple fronts. First, the purportedly fabricated document
is not new. For purposes of Rule 60(b), evidence is “new” only if it is discovered after the
litigation is over and judgment has been entered. See Gleash, 308 F.3d at 761; Bell, 214 F.3d at
801; see also Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir. 2008). But Rimkus
admits in his brief that he knew the document was a forgery by January 2008—seven
months before the district court entered judgment—and so he was required to bring it to the
court’s attention as a reason to void the settlement agreement before the litigation was over.
Nor has Rimkus shown that this evidence is material to his contention that the
settlement agreement is void. See Jones v. Lincoln Elec. Co., 188 F.3d 709, 732 (7th Cir. 1999).
The purportedly “fraudulent” memorandum has nothing to do with the validity of the
settlement agreement that Rimkus signed. Although Rimkus contends that he would not
have accepted the settlement offer had he known earlier that Heinemann’s litigation
position was so weak that it would resort to forging a document, he made a strategic choice
to settle his claims before the close of discovery, thereby subjecting himself to the risk that
additional favorable information might come to light as the litigation progressed. See
McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000). He must now be held to the
bargain he agreed to.
Rimkus next contends that the purportedly fraudulent memorandum also provides a
basis for the court to set aside the judgment under Rule 60(b)(3), the fraud subsection. But
because Rimkus discovered the purported fabrication in time for the courts to rectify it
before the entry of final judgment or on direct appeal, it provides no basis for relief. See
Gleash, 308 F.3d at 761; Bell, 214 F.3d at 801. And even if Heinemann’s did fabricate the
document, this would be irrelevant for purposes of Rule 60(b)(3) because it did not prevent
Rimkus from fully and fairly presenting his underlying motion to void the settlement
agreement to the district court. See Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995).
The district court did not abuse its discretion in denying Rimkus’s Rule 60(b) motion,
thus we AFFIRM.

-- 3 of 3 --