Gordon Gravelle v. Kaba Ilco Corporation, Frank Belflower, Charles Murray

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GORDON GRAVELLE,
Plaintiff-Appellant
CODEPRO KEY CORPORATION,
Plaintiff
v.
KABA ILCO CORPORATION, FRANK
BELFLOWER, CHARLES MURRAY,
Defendants
______________________
2018-1937
______________________
Appeal from the United States District Court for the
Eastern District of North Carolina in No. 5:17-cv-00207-
FL, Judge Louise Wood Flanagan.
______________________
Decided: December 10, 2018
______________________
G ORDON G RAVELLE , Thunder Bay, Ontario, Canada,
pro se.
______________________
Before M OORE, REYNA , and CHEN, Circuit Judges.

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GRAVELLE v. KABA ILCO CORPORATION 2
P ER CURIAM .
Gordon Gravelle appeals from an order of the Eastern
District of North Carolina dismissing his case as frivolous.
Gravelle v. Kaba Ilco Corp., 17-CV-207-FL (“Gravelle III”).
This is the third suit filed in the district court by
Mr. Gravelle naming Kaba Ilco Corp. as a defendant.
Because we see no error in the district court’s analysis, we
affirm.
BACKGROUND
In a prior suit, Gravelle v. Kaba Ilco Corp., No. 5:13-
CV-642-FL (“Gravelle II”), Mr. Gravelle alleged Kaba
falsely marketed and promoted its EZ Code key cutting
machines as having “patent pending” features. He as-
serted claims under the Patent Act’s false-marking stat-
ute, 35 U.S.C. § 292, the false-advertising provision of the
Lanham Act, 15 U.S.C. § 1125, and North Carolina’s
Unfair and Deceptive Practices Act (“UDPA”). The dis-
trict court granted summary judgment in favor of Kaba.
We affirmed because Mr. Gravelle failed to provide “con-
crete, non-speculative evidence of causation of an actual
injury by Kaba’s false marking.” Gravelle v. Kaba Ilco
Corp., 684 F. App’x 974, 976–81 (Fed. Cir. 2017). We
vacated the district court’s award of attorney fees and
remanded for further proceedings on that issue. Id. at
985.
On remand in Gravelle II, Mr. Gravelle filed a motion
pursuant to Federal Rule of Civil Procedure 60(b) seeking
relief from the orders granting Kaba summary judgment
and attorney fees. Gravelle II, ECF No. 90. While that
motion was pending, he initiated Gravelle III. The dis-
trict court subsequently denied the Rule 60(b) motion in
Gravelle II as without merit. Gravelle II, ECF No. 103.
In Gravelle III, the district court granted
Mr. Gravelle’s motion to proceed in forma pauperis, and it
reviewed his complaint pursuant to 28 U.S.C. § 1915.

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GRAVELLE v. KABA ILCO CORPORATION 3
Given Mr. Gravelle’s pro se status, the district court
liberally construed the claims in the Gravelle III com-
plaint as: (1) seeking relief from the prior orders in
Gravelle II pursuant to Rule 60; (2) asserting claims
under the UDPA, the Patent Act, and the Lanham Act;
and (3) asserting a claim under the “Competition Act of
Canada.” It held the complaint did not assert a valid Rule
60 claim, and any claim under the UDPA, Patent Act,
Lanham Act, or Canadian Competition Act was barred by
claim preclusion. It dismissed all claims without preju-
dice pursuant to § 1915(e)(2)(B) for failure to state a
claim. Mr. Gravelle appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(1).
D ISCUSSION
A dismissal for failure to state a claim is a procedural
question, which we review under the law of the regional
circuit, here the Fourth Circuit. See C&F Packing Co. v.
IBP, Inc., 224 F.3d 1296, 1306 (Fed. Cir. 2000). The
Fourth Circuit reviews dismissal for failure to state a
claim under § 1915(e)(2)(B) de novo and accepts pleaded
facts as true. Thomas v. The Salvation Army S. Territory,
841 F.3d 632, 637 (4th Cir. 2016). It construes allegations
in pro se complaints liberally, but the complaint must still
contain enough facts to state a claim for relief that is
plausible on its face. Id.
Rule 60 Claim
Rule 60 provides means for obtaining relief from a
judgment or order. Under Rule 60(b), a party may move
for relief from a judgment in the action in which the
judgment was rendered. See 11 C. Wright & A. Miller,
Fed. Prac. & Proc. Civ. § 2851 (3d ed.). Rule 60(d) pro-
vides, however, that the rule “does not limit a court’s
power to: (1) entertain an independent action to relieve a
party from a judgment, order, or proceeding . . .; or (3) set
aside a judgment for fraud on the court.” A party seeking
relief under Rule 60(d)(1) must show:

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GRAVELLE v. KABA ILCO CORPORATION 4
(1) a judgment which ought not, in equity and
good conscience, to be enforced; (2) a good defense
to the alleged cause of action on which the judg-
ment is founded; (3) fraud, accident, or mistake
which prevented the defendant in the judgment
from obtaining the benefit of his defense; (4) the
absence of fault or negligence on the part of de-
fendant; and (5) the absence of any adequate rem-
edy at law.
Great Coastal Exp., Inc. v. Int’l Bhd. of Teamsters, Chauf-
feurs, Warehousemen & Helpers of Am., 675 F.2d 1349,
1358 (4th Cir. 1982). In the Fourth Circuit, a judgment
may be set aside for fraud on the court only where “cor-
ruption of the judicial process itself” has occurred. Cleve-
land Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984,
986 (4th Cir. 1987).
Mr. Gravelle alleges two aspects of Kaba’s conduct in
Gravelle II support Rule 60 relief. First, he alleges Kaba
lied to the district court in its answer and motion for
summary judgment by denying all allegations of false
marking. Second, he alleges Kaba did not provide contact
information for certain current and former employees,
preventing him from getting information that would have
helped his case.
These allegations do not support relief under
Rule 60(d)(1) or (d)(3). The allegation that Kaba lied to
the district court about false marking cannot support
relief under Rule 60(d)(1) because judgment was entered
against him due to a failure to prove the injuries caused
by the false marking, not a failure to establish that false
marking occurred. The allegation that Kaba did not
provide necessary contact information is a discovery
dispute that “must be resolved during the initial trial”
rather than an independent action. Cleveland Demoli-
tion, 827 F.2d at 987. Neither allegation constitutes fraud
on the court. See Great Coastal, 675 F.2d at 1356

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GRAVELLE v. KABA ILCO CORPORATION 5
(“‘[F]raud on the court’ is typically confined to the most
egregious cases, such as bribery of a judge or juror, or
improper influence exerted on the court by an attorney, in
which the integrity of the court and its ability to function
impartially is directly impinged.”). Although “[a] verdict
may be set aside for fraud on the court if an attorney and
a witness have conspired to present perjured testimony,”
this is a narrow exception, Cleveland Demolition, 827 F.2d
at 986, and Mr. Gravelle has not pled facts to support
such a claim. We affirm the district court’s dismissal of
Mr. Gravelle’s Rule 60 claims.
UDPA, the Patent Act, the Lanham Act Claims
The district court dismissed the rest of Mr. Gravelle’s
claims for claim preclusion. Whether a cause of action is
barred by claim preclusion is a question of law reviewed
without deference. Senju Pharm. Co. v. Apotex Inc., 746
F.3d 1344, 1348 (Fed. Cir. 2014); Pueschel v. United
States, 369 F.3d 345, 354 (4th Cir. 2004). We “look to the
law of the regional circuit in which the district court sits
for guidance regarding the principles of claim preclusion,”
but apply our own law in determining “whether a particu-
lar cause of action in a patent case is the same as or
different from another cause of action.” Senju Pharm.,
746 F.3d at 1348. In the Fourth Circuit, a claim is barred
by claim preclusion where there is “(1) a final judgment
on the merits in a prior suit; (2) an identity of the cause of
action in both the earlier and the later suit; and (3) an
identity of parties or their privies in the two suits.”
Pueschel, 369 F.3d at 354–55.
Mr. Gravelle’s claims under the UDPA, the Patent
Act, and the Lanham Act are barred by claim preclusion.
In Gravelle II there was a final judgment on the merits.
There is an identity of the causes of action. The same
facts are alleged, and the same statutory provisions are
being asserted. While the other named defendants,
Mr. Belflower and Mr. Murray, were not named in Grav-

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GRAVELLE v. KABA ILCO CORPORATION 6
elle II, we see no error in the district court’s determina-
tion that they are privies of Kaba, which is named as
defendant in both Gravelle II and Gravelle III.
Mr. Gravelle argues we should recognize an exception to
the general claim preclusion rule because he attempted to
dismiss Gravelle II in order to bring a new action naming
Mr. Belflower and Mr. Murray as defendants. We see no
reason for doing so in these circumstances. He alterna-
tively argues that because he alleges the defendants are
joint tortfeasors, claim preclusion should not apply. We
disagree. While not all joint tortfeasors are in privity,
joint tortfeasor status does not prevent parties from being
in privity. See Muhammad v. Oliver, 547 F.3d 874, 880
(7th Cir. 2008). We affirm the district court’s dismissal of
Mr. Gravelle’s claims under the UDPA, the Patent Act,
and the Lanham Act.
Mr. Gravelle’s complaint in Gravelle II did not assert
claims under the Canadian Competition Act. However,
the district court appropriately determined this claim was
precluded under the rule against claim splitting, and we
affirm its dismissal of that claim.
CONCLUSION
We have considered Mr. Gravelle’s remaining argu-
ments and find them unpersuasive. For the foregoing
reasons, the decision of the district court is affirmed.
AFFIRMED

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