Nancy Gagen v. AT&T Midwest, et al, No. 11-2135 (7th Cir. 2011)
Annotate this Case
Download PDF
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 August 25, 2011* Decided September 1, 2011 Before FRANK H. EASTERBROOK, Chief Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 11-2135 Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. NANCY J. GAGEN, Plaintiff-Appellant, v. No. 07 C 979 Rebecca R. Pallmeyer, Judge. KIRKLAND & ELLIS LLP, Defendant-Appellee. Order Last spring we affirmed the district court s judgment dismissing this suit. Bowden v. Kirkland & Ellis LLP, No. 10-3290 (7th Cir. Apr. 1, 2011) (nonprecedential). Nancy Gagen, one of the two plaintiffs, then filed in the district court a motion under Fed. R. Civ. P. 60(b)(2), contending that misconduct (principally by AT&T, a non-party) had occurred during discovery. The district court denied this motion, ruling that all of the information on which Gagen now relies could have been learned before judgment. Rule 60(b)(2) concerns newly * This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f) No. 11-2135 Page 2 discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) . The district judge's conclusion that Gagen either actually knew this information before judgment, or could have learned it through reasonable diligence , led to the motion s denial. Gagen s appellate brief disregards the reason the district court denied her motion. Although Gagen professes confidence that the defendant, as well as third parties, engaged in misconduct during discovery, this does not provide a reason for relief from judgment when diligence would have enabled the litigant to learn the material facts earlier. Gagen has not presented any evidence of fraud on the court, see In re Golf 255, Inc., No. 10-3732 (7th Cir. July 22, 2011), so Rule 60(b)(3) does not apply. Her other contentions do not require discussion. She must understand that this litigation has been resolved. A continuing refusal to accept defeat may lead to an award of sanctions. AFFIRMED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
