Masco Corporation v. Peter Prostyakov
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Because this appeal is frivolous, we give Prostyakov 14 days to show cause why we should not impose a sanction of $5,000. Richard A. Posner, Circuit Judge and Michael S. Kanne, Circuit Judge. Sent Certified Mail. Receipt Number: 7016 0340 0001 1335 2343. [6835601-1]  [16-3803]
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 January 18, 2017*
Decided April 20, 2017
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
PETER A. PROSTYAKOV,
Appeal from the United States District
Court for the Southern District of Indiana,
Richard L. Young,
O R D E R
This is a frivolous appeal. Peter Prostyakov and Masco Corporation have been
suing each other since their business relationship fell apart more than 20 years ago,
when Masco discharged Prostyakov. Their dispute precipitated two arbitrations for
claims for breach of contract. See Prostyakov v. Masco Corp., 513 F.3d 716 (7th Cir. 2008);
see also Masco Corp. v. Prostyakov (Masco Corp. II), 593 F. App’x 570 (7th Cir. 2015);
Masco Corp. v. Prostyakov (Masco Corp. I), 558 F. App’x 685 (7th Cir. 2014). We have
* This successive appeal has been submitted to a quorum of the original panel
under Operating Procedure 6(b), Judge John D. Tinder having retired since the time of
our original decision. See 28 U.S.C. § 46(d).
previously affirmed the district court’s decisions to confirm the arbitration awards,
see Prostyakov, supra, 513 F.3d at 727; Masco Corp. I, supra, 558 F. App’x at 688, and to
sanction Prostyakov with a fine of $25,500 for filing needless motions, see Masco Corp. II,
supra, 593 F. App’x at 570–71.
Undeterred, Prostyakov returned to the district court. Invoking FED. R.
CIV. P. 60(b)(3), which allows district courts to reopen cases based on fraud, he asked
the court to overturn its prior judgments. He observes that the district court’s original
decision confirming the first arbitration award included the sentence “Prostyakov was
discharged for alleged theft.” Prostyakov contends that Masco fabricated that
allegation. But Prostyakov was aware of that allegation throughout this entire litigation,
so it is not new. He had an opportunity to challenge the allegation during the
arbitration, in the district court before it confirmed the arbitration awards, and on direct
appeal from that confirmation. He may not do so, however, through a collateral attack
under Rule 60(b)(3). “Otherwise ‘fraud on the court’ would become an open sesame to
collateral attacks, unlimited as to the time within which they can be made by virtue of
the express provision in Rule 60(b) on this matter, on civil judgments.” Oxxford Clothes
XX, Inc. v. Expeditors Int’l of Wash., Inc., 127 F.3d 574, 578 (7th Cir. 1997).
Because this appeal is frivolous, we give Prostyakov 14 days to show cause why
we should not impose a sanction of $5,000.
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