H. K. Porter Co., Inc. v. Goodyear Tire & Rubber Co.

• Decision Date: 19 July 1976
• Docket Number: Nos. 75-1609,75-1610,s. 75-1609
• Citation: 536 F.2d 1115,191 USPQ 486
• Parties: H. K. PORTER COMPANY, INC., Plaintiff-Appellee, Cross-Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1115

536 F.2d 1115

191 U.S.P.Q. 486

H. K. PORTER COMPANY, INC., Plaintiff-Appellee, Cross-Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellant,

Cross-Appellee.

Nos. 75-1609, 75-1610.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 2, 1976.

Decided June 9, 1976.

Rehearing and Rehearing En Banc Denied July 19, 1976.

William D. Ginn, Leslie W. Jacobs, Thompson, Hine & Flory, Cleveland, Ohio, Paul L. Ahern, Wolf, Hubbard, Leydig, Voit & Osann, Chicago, Ill., for appellant.

Laurence E. Oliphant, Jr., Squire, Sanders & Dempsey, Cleveland, Ohio, Lawrence F. Scinto, Fitzpatrick, Cella, Harper & Scinto, New York City, for appellee.

Before PHILLIPS, Chief Judge, WEICK and McCREE, Circuit Judges.

WEICK, Circuit Judge.

On November 13, 1965 H. K. Porter Company, Inc. (Porter) sued Goodyear Tire & Rubber Company (Goodyear) in the federal District Court for Northern Ohio, Eastern Division in Cleveland, for infringement of two of its patents on flexible mold-formed radiator hoses. The Court found that the patents were valid and infringed by Goodyear, granted an injunction against further infringement, and ordered an accounting. On appeal, we affirmed in an opinion written for the Court by Judge McCree, reported in 437 F.2d 244 (6th Cir. 1971). Goodyear filed in this Court a petition for rehearing or for remand to the District Court, alleging that this Court had overlooked and misapprehended pertinent facts and law, and that Porter's presentation to the District Court and to this Court involved misrepresentation and other misconduct. We denied the petition for rehearing or for remand on April 16, 1971, and the Supreme Court denied certiorari, 404 U.S. 885, 92 S.Ct. 203, 30 L.Ed.2d 169 (1971).

Upon the remand in 1971 Goodyear filed its Rule 60(b) motion in the District Court to vacate the judgment for fraud practiced on the Court, a copy of which motion was filed in this Court. The District Court denied the Rule 60(b) motion on June 28, 1971.

On February 22, 1972 the District Court appointed a Special Master to hear the accounting. After conducting extensive hearings the Master filed his report on October 26, 1973 recommending an award to Porter of $720,206.14 plus interest at 6% from the date of his report.

Nearly three years after the denial of its first Rule 60(b) motion, namely on May 14, 1974, Goodyear filed in the District Court its second Rule 60(b) motion alleging fraud on the Court. At that time Goodyear also filed an independent action in the District Court for the District of Colorado, attacking the judgment of the Ohio District Court on the same ground. The Colorado Court would not have subject matter jurisdiction to declare void for fraud the judgment of the Ohio District Court. The purpose of the Colorado suit was to seek consolidation thereof with the action by Porter against Gates Rubber Company (Gates) for infringement of the same patents, which action had been pending in Colorado since 1971. The Colorado District Court declined to consolidate the two actions, and Goodyear's independent Colorado action was then transferred with its approval to Northern Ohio. The Northern Ohio District Court then had before it both a Rule 60(b) motion and the independent action for the same relief which Goodyear sought in its suit filed in Colorado with a Court that had no jurisdiction of it. The Ohio Court dismissed the independent action, and in Goodyear's appeal therefrom this Court affirmed on August 25, 1975, in case No. 75-1637.

Goodyear's claim of fraud was based upon the alleged willful failure of Porter to disclose during discovery prior to the trial of Porter's patent infringement action, certain documents which it (Goodyear) claimed were vital to its defense, and which were in Porter's possession, and upon alleged perjury by David Caplan, the inventor of Porter's hose patents. Goodyear learned about these documents from examining the exhibits in the Gates case in Colorado. Goodyear filed a motion for discovery in the District Court for Northern Ohio, to prove the claims in its Rule 60(b) motion.

On December 13, 1974 the District Court held a hearing for the purpose of permitting Goodyear to show that additional discovery after final judgment was appropriate. On January 21, 1975 the Court entered an opinion and order holding that Goodyear had made no showing of fraud and therefore was not entitled to additional discovery under Rule 60(b). The motion was therefore denied.

Meanwhile, on July 18, 1974 the District Court adopted the findings of the Special Master and awarded the recommended relief to Porter after adjusting the damage award to $681,331.30. Both parties appeal from the judgment as to damages. Goodyear also appeals from the denial of its second Rule 60(b) motion. We affirm in both appeals with a remand to the District Court for consideration of the allowance to Porter of expenses and attorney's fees incurred in the denial of discovery after judgment in connection with the Rule 60(b) motion.

I

Goodyear points out that under Rule 60(b) a judgment may be attacked by an independent action alleging fraud upon the court, and that allegations of such fraud entitle it to discover documents relevant to the charge. Goodyear contends that the District Court erred in holding that it was required to make a prima facie showing of fraud in order to be entitled to discovery after judgment.

When the District dismissed the suit transferred from Colorado because the allegations duplicated those in the motion then before it, such action did not change the substantive rights of the parties; a motion under Rule 60(b) claiming fraud may be treated interchangeably with an independent action. Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 n. 7 (5th Cir. 1970). While Goodyear has not cited, and we have not found, any cases dealing with the right to post-judgment discovery, we must recognize that a request for discovery for the purpose of attacking a final judgment involves considerations not present in pursuing discovery in a pending action prior to a judgment. Primary among these considerations is the public interest of the judiciary in protecting the finality of judgments. Particularly is this true in the long-drawn-out patent infringement case litigated through all of the Federal Courts where prior to judgment there had been extensive discovery.

Goodyear is plainly not entitled to discovery of documents it did not request in pretrial discovery. The only documents relevant to this fraud claim are those which Goodyear requested earlier but which Porter allegedly wilfully failed to produce. Goodyear apparently believes that it is entitled to broader discovery so that it can fish for other documents arguably within the class of documents which it could have requested in pretrial discovery. We do not consider the granting of post-judgment discovery a proper vehicle for reviewing the integrity of pretrial discovery. Allegations of nondisclosure during pretrial discovery are not sufficient to support an action for fraud on the court. 11 C. Wright & A. Miller, Fed.Prac. & Proc. § 2870, p. 254 (1973); nor is the alleged perjury of a witness a ground for an action for fraud upon the court. Id. at 256.

Goodyear adds to its allegations of nondisclosure, misrepresentation and perjury, the allegation that Porter's attorneys knew of and sponsored these misdeeds. This is indeed a serious charge and ought not to be recklessly made without substantial support. Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court. Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972); see Restatement, Judgments § 126 comment c (Supp.1948).

A Rule 60(b) motion is addressed to the sound discretion of the Court. Jacobs v. DeShetler, 465 F.2d 840, 843 (6th Cir. 1972). Likewise, the scope of discovery is within the discretion of the trial judge. Chemical & Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962). When two parties have opposed each other in a protracted lawsuit tried to judgment, and the losing party's motion for relief under Rule 60(b) does not indicate to the Judge who presided at the trial that his Court has been victimized by the fraud of the winning party, it is well within his discretion to require the moving party to make a showing in support of its allegations before requiring the prevailing party to submit a second time to extensive discovery to protect his judgment.

We do not have here a case wherein only discovery would allow Goodyear to prove an evidentiary basis for its allegations. Goodyear claims that it has found in the records of the Gates case evidence that Porter perpetrated a fraud on the District Court; in fact, these Colorado documents appear to have triggered the instant motion. Under the circumstances we are of the opinion that the District Court, finding no precedent for the situation before it, ruled fairly and wisely in asking Goodyear to show that the Colorado documents support its allegations of fraud on the Court as a precondition to further discovery.

Thus it is only necessary for this Court to review the evidence presented in the motion hearing to determine whether the District Court abused its discretion in holding that no evidentiary basis was shown warranting further discovery. Goodyear complains that it was held to a standard of proving a prima facie case of fraud in order to obtain discovery. While the Court suggested such a test, the Court did not have to apply such a test because it found that Goodyear had shown no proof of fraud; thus under any evidential burden Goodyear would not be entitled to discovery.

In considering the evidence presented, the question to be resolved is whether Porter deliberately disobeyed an order of the District Court relating to discovery. We will not review the parties' voluntary dealings with each other pursuant to discovery. Parties...