Vukadinovich v. Hanover Community School Corporation et al

Filing 415

OPINION AND ORDER denying 411 Motion To Be Heard As To Petition For Judicial Notice Pursuant to Rule 201 of the Federal Rules of Evidence and denying 413 Motion For Relief From Judgment Pursuant To F.R.C.P. 60. Signed by Chief Judge Philip P Simon on 11/2/16. (cc: Plaintiff). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BRIAN VUKADINOVICH,
Plaintiff,
vs.
HANOVER COMMUNITY SCHOOL
CORPORATION, ET AL.,
Defendants.

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CAUSE NO. 2:13-CV-144-PPS

OPINION AND ORDER
This matter is before the Court on two motions recently filed by Mr.
Vukadinovich. The first motion is titled as a “Motion To Be Heard As To Petition For
Judicial Notice Pursuant To Rule 201 Of The Federal Rules Of Evidence.” But what
Vukadinovich really seeks is a new trial on the grounds that the Defendants allegedly
committed a fraud on the Court during the trial of this matter. That is what he spends
the majority of his 25 page motion talking about. [DE 411, 412.] So I will treat his
motion as one brought under Federal Rule of Civil Procedure 60(b)(3), motion for relief
from judgment based on fraud. Vukadinovich’s second motion is explicitly a Rule 60
motion but this one is based on a claim of newly discovered evidence [DE 413], so Rule
60(b)(2) governs his second motion.
Rule 60(b) presents a high hurdle. Whether to grant relief under Rule 60(b) is left
to the sound discretion of the trial court. C.K.S. Engineers, Inc. v. White Mountain
Gypsum Co., 726 F.2d 1202, 1205 (7th Cir. 1984). “Because relief under Rule 60(b) is an
extraordinary remedy and is granted only in exceptional circumstances, a district court

abuses its discretion only when no reasonable person could agree with the decision to
deny relief.” Eskridge v. Cook Cty., 577 F.3d 806, 809 (7th Cir. 2009) (internal quotations
and citations omitted).
In Vukadinovich’s motion regarding his petition for judicial notice, he asks me to
take notice of the fact that in May 2016, Hanover Community School Corporation
posted a job opening for a teacher for middle school Project Lead The Way classes,
which are classes that Vukadinovich previously taught and were eliminated in 2012,
resulting in Vukadinovich’s termination and this lawsuit. But what happened in 2016 is
not relevant to the motivation behind Hanover Community School Corporation’s
actions in 2012 and would not be part of the jury’s calculus in determining whether the
School discriminated against Vukadinovich because of his age when it fired him in
2012. As I explained at length in my Opinion and Order on all of the parties’ post-trial
motions, DE 409, the School presented several non-discriminatory reasons for the
decision not to renew Vukadinovich’s contract and, despite the sometimes shaky or
contradictory explanations at trial, there was evidence to support the jury’s verdict. [DE
409 at 24-26.] Vukadinovich already challenged that verdict once in his first round of
post-trial motions and lost. He does not get another opportunity to do so in this Court
based on evidence that is not relevant and not part of the calculus for determining
liability on his age discrimination claim.
In addition, the School’s failure to raise this publicly available fact at trial is not
fraud on the Court, as Vukadinovich argues at length, and certainly not the type of

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conduct from which Rule 60 is intended to protect litigants. Citizens for Appropriate
Rural Roads v. Foxx, 815 F.3d 1068, 1080 (7th Cir. 2016) (“Fraud on the court occurs only
in the most extraordinary and egregious circumstances and relates to conduct that
might be thought to corrupt the judicial process itself, such as where a party bribes a
judge or inserts bogus documents into the record.”); Best v. United States, No.
2:00-CR-171, 2011 WL 321153, at *1 (N.D. Ind. Jan. 26, 2011) (“An action for fraud on the
court is available only to ‘prevent a grave miscarriage of justice.’” (quoting United States
v. Beggerly, 524 U.S. 38, 47 (1998))). For these reasons, Vukadinovich’s motion must be
denied.
Vukadinovich’s Rule 60(b)(2) motion regarding newly discovered evidence
references and includes as an exhibit a note that he says was mysteriously placed in his
mailbox by an unknown individual and alleges a conspiracy between two gentlemen
(Lou Lindinger and John Machowicz) from the Hammond Schools, with which
Vukadinovich settled a prior age discrimination lawsuit when his employment contract
was terminated, and Justin Biggs, who Vukadinovich alleged was on a mission to get
him fired from the Hanover Community School Corporation , in part, because he
previously sued the Hammond Schools. [DE 413.] Attached to the note was a letter
from April 2000 on School City of Hammond letterhead directed to Lou Lindinger
recommending that Hammond Schools hire John Mackowicz. [Id. at 6.] The senders of
both the note to Vukadinovich and the letter to Lindinger are unknown. These
documents are unathenticated and inadmissible hearsay. See Fed. R. Evid. 802, 901.

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In order for evidence to be newly discovered under Rule 60(b)(2), it must be
“evidence” in the first place. In other words, the new evidence “must be material,
admissible, credible, not merely cumulative or impeaching, and likely to change the
outcome upon retrial.” Peacock v. Bd. of Sch. Comm'rs of City of Indianapolis, 721 F.2d 210,
213-14 (7th Cir. 1983). This evidence certainly is not that and, as such, cannot be used to
support a claim for relief from judgment under Rule 60(b).
ACCORDINGLY:
For the aforementioned reasons, Vukadinovich’s Motion To Be Heard As To
Petition For Judicial Notice Pursuant To Rule 201 Of The Federal Rules Of Evidence [DE
411] and Motion For Relief From Judgment Pursuant To F.R.C.P. 60 [DE 413] are
DENIED.
SO ORDERED.
ENTERED: November 2, 2016
_s/ Philip P. Simon_________________
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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