In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2737 & 09-2620
D ANIEL J. W ICKENS and
P AMELA W ICKENS,
Plaintiffs,
and
M ARK E. S HERE ,
Appellee,
Cross-Appellant,
v.
S HELL O IL C OMPANY and
S HELL O IL P RODUCTS C OMPANY, LLC,
Defendants-Appellants,
Cross-Appellees.
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:05-CV-645—Sarah Evans Barker, Judge.
A RGUED JANUARY 19, 2010—D ECIDED A UGUST 31, 2010
2 Nos. 09-2737 & 09-2620
Before B AUER and W OOD, Circuit Judges, and K ENNELLY,
District Judge.
W OOD , Circuit Judge. Though the parties’ voluminous
filings might suggest otherwise, this case had humble
beginnings and there is not much left of it at this point.
Pamela and Daniel Wickens owned a small shoe store
in Anderson, Indiana. The store rested on a plot of
land that once had been used as a Shell gas station. In
2004, when the Wickenses began preparing to sell the
store and retire, they received the unwelcome news
that their store rested on a bed of contaminated soil.
Not long after, the Wickenses retained Mark Shere as
their attorney and began talks with Shell regarding
its liability for the contamination. Their discussions
centered largely on Shell’s responsibilities under Indiana’s
Underground Storage Tank Act (the “Act”or the “USTA”),
Ind. Code § 13-23-13-8. This statute provides that any
person who takes corrective action to remedy damage
caused by an underground storage tank may obtain
a contribution from the owner or operator of the tank.
Ind. Code § 13-23-13-8(b). If the party taking corrective
action brings a successful suit, she is also entitled to
attorneys’ fees. Id.
Dissatisfied with the outcome of those discussions, the
Wickenses filed suit on March 24, 2005. Much legal wran-
gling followed, but eventually the parties hammered out
a settlement agreement that resolved most of the
Of the Northern District of Illinois, sitting by designation.
Nos. 09-2737 & 09-2620 3
lingering liability issues. Critically for our purposes, the
agreement provided that the calculation of corrective
action costs and attorneys’ fees would be left to the court.
The district court granted most, but not all, of the
Wickenses’ requests for corrective action costs and attor-
neys’ fees. After the court issued its decision, Shere re-
vealed for the first time that the Wickenses’ litigation
team had been funded in part by Employers Fire Insur-
ance Company (“Employers”). Shell quickly filed a Rule
60(b) motion to vacate, which the court denied. Both
parties have appealed. We conclude that the district
court made the best of a fractious situation and but for
a small calculation mistake, we find nothing erroneous
in its judgment. Thus, we affirm in part and reverse
and remand in part for further proceedings consistent
with this opinion.
I
The district court’s opinion provides an exhaustive
account of the background to this case. See Wickens v.
Shell Oil Co., 569 F. Supp. 2d 770, 773-83 (S.D. Ind. 2008).
Much of that detail is unnecessary to the resolution of
this appeal, however, and so we limit ourselves to a
brief rehearsal of the facts that remain pertinent.
Before putting their land on the market, in July 2004
the Wickenses hired HydroTech Corporation to conduct
an environmental investigation of the soil. Borings re-
vealed that the land was contaminated with pollutants
that probably had leaked from an underground
4 Nos. 09-2737 & 09-2620
gasoline storage tank. Acting pursuant to notification
requirements imposed by Indiana law, HydroTech re-
ported the leak to the Indiana Department of Environ-
mental Management (“IDEM”). IDEM then sent a
letter to the Wickenses informing them that they were
responsible as the property owners for carrying out
further investigations into the nature of the leak. The
Wickenses responded by hiring Shere and authorizing
HydroTech to pursue further investigatory work.
As part of its investigation, HydroTech examined the
soil of a neighboring property owned by Richard Gardner
and found that it too was contaminated. The Gardner
property also had formerly hosted a gas station, but it
had been affiliated with a different oil company. After
HydroTech submitted its findings to IDEM, the Depart-
ment sent a letter in November 2004 informing the
Wickenses that they were now responsible for inves-
tigating the Gardner property as well. This proved to be
a turning point in the parties’ dispute; in the months
that followed, they fought bitterly over the source of the
contaminants and Shell’s responsibility for remediating
the Gardner property. Relying on HydroTech’s deter-
mination that the Wickenses’ property was the likely
source of the contamination, the Wickenses believed
that Shell should have assumed full responsibility for
the entire IDEM investigation. Shell, on the other hand,
found HydroTech’s analysis wanting and insisted that
IDEM bifurcate the investigation of the two parcels.
Unable to convince Shell to agree to the Wickenses’ list
of demands, Shere filed this lawsuit in March 2005. Over
the course of the next year, the parties offered competing
Nos. 09-2737 & 09-2620 5
environmental assessments and vied for control of
the IDEM investigation. Bombarded with the parties’
conflicting ideas for further investigations, IDEM decided
that it would deal exclusively with the Wickenses as of
November 2006. Making matters worse for Shell, the
district court denied the company’s motion for sum-
mary judgment, finding that Shell in all likelihood bore
full responsibility for the contamination.
At this point, the Wickenses had a significant amount of
leverage, which put Shell in a bind. As the district court
put it, “[s]o long as the litigation continued and the
Wickenses retained ownership of the real estate, Shere
and HydroTech controlled any and all responses to the
IDEM-directed investigation and remediation and could
elect to continue to incur, or generate, costs that, under
USTA, would be on Shell’s dime.” 569 F. Supp. 2d at 779-
80. The parties spent a lot of time haggling over the
terms of a settlement agreement, but they were unable
to reach any consensus. In the meantime, Shere and
HydroTech continued to rack up additional attorneys’
fees and corrective action costs.
In an effort to staunch the runaway fees and promote
settlement, the district court entered an order on
January 9, 2007, temporarily freezing the parties’ liability
for each other’s attorneys’ and experts’ fees. It instructed
the parties to use this time to select a mutually accept-
able independent consultant, who would investigate
the property and submit a joint report to IDEM. Though
the freeze was to last only three months, Shere submitted
an emergency motion challenging the so-called “time-out
6 Nos. 09-2737 & 09-2620
period,” arguing that it undermined the purpose of the
Act. The court was not moved to reconsider its decision,
but it did leave open the possibility of recovery for fees
“upon a showing of extremely good cause and clear
necessity.” Despite the court’s warnings, the parties
both continued to incur substantial expenses during
this period; ostensibly, those expenses were for over-
sight of the work of the independent consultant. After
the “time-out period” expired, HydroTech continued to
work on the land pursuant to a work plan IDEM ap-
proved on March 28, 2007.
After a series of meetings with a magistrate judge, the
parties eventually were able to nail down the details of a
settlement agreement. Under the agreement, Shell prom-
ised to purchase the Wickenses’ property for $139,900
and to pay $60,100 in “property damages.” The parties
stipulated that the Wickenses were entitled to attorneys’
fees and corrective action costs, but they delegated to
the court the job of calculating the amount of those costs.
In calculating the fee award, the district court awarded
the Wickenses most of what they wanted, but it declined
to award anything for attorneys’ fees incurred after
January 9, 2007. Shere’s work after that date, the court
explained, was aimed at achieving successes unrelated
to the goals of the Act and thus it was not compensable.
Similarly, the court refused to put Shell on the hook for
HydroTech’s expenses past this date, with the exception
of the costs related to work devoted to carrying out
IDEM’s March 2007 work plan. Since the fee award
was not easily ascertainable, the court decided not to
award prejudgment interest.
Nos. 09-2737 & 09-2620 7
Naturally, this was not the end. Shell filed post-
judgment motions under both FED. R. C IV. P. 59(e) and
60(b). The court granted in part Shell’s Rule 59(e) motion
to modify or alter the judgment by deducting fees that
Shere received for the legal services attributable to his
wife, Colleen Shere. Although Colleen Shere had once
been licensed to practice law in Indiana, she had allowed
her law license to lapse. The court concluded that
Shere had improperly billed her hours as attorney
services and thus those amounts should not have been
included in his award. After this deduction, the
Wickenses received $391,307.83 in attorneys’ fees and
$116,511.27 for corrective action costs.
Shell’s Rule 60(b) motion asked the court to vacate its
judgment on the ground that Shere had fraudulently
concealed Employers’s role in funding a large part of
the Wickenses’ litigation efforts. The district court ad-
monished Shere for failing to disclose his relationship
with Employers when the issue of fee arrangements was
discussed at a recent hearing. Nevertheless, the court
concluded that Shere’s evasiveness did not warrant
relief under Rule 60. Shell has appealed. After the
district court granted Shere’s motion to allow him to
appear in the case in his own name as the real party
in interest, Shere has cross-appealed. (We are not con-
cerned here about the ability of any creditor of the
Wickenses to reach those funds, cf. Astrue v. Ratliff, 130
S. Ct. 2521 (2010) (holding that an award of fees under
the Equal Access to Justice Act, 28 U.S.C. § 2412(d), is
payable to the litigant, not to the attorney, and thus is
available to offset a debt to the government); as no one
8 Nos. 09-2737 & 09-2620
has challenged the district court’s decision to allow
Shere to appear as the party-in-interest, we have no
further comment about it.)
II
To a great degree, the issues on the appeal and cross-
appeal overlap. Shell and Shere both attack the district
court’s calculation of attorneys’ fees and corrective
action costs. Shere thinks that the court should not have
used a cut-off date at all, and both parties dispute the
particular date the court selected. Shere also contests the
district court’s treatment of fees attributed to Colleen
Shere’s work and the court’s tabulation of his bills.
Whatever the size of the attorneys’ fees and corrective
action costs award, Shere contends that he is entitled to
prejudgment interest. For its part, Shell argues that the
district court’s decision should have been tossed out
under Rule 60(b) because Shere misrepresented his fee
arrangement. Lastly, Shere quarrels with the district
court’s findings that are critical of his professionalism
and candor. We address each issue in turn and apply
the law of Indiana, as this case is based on the diversity
jurisdiction.
A
Though trial courts are given wide latitude in formu-
lating awards of attorneys’ fees, their discretion is
cabined in a few important respects. Indiana courts look
Nos. 09-2737 & 09-2620 9
for guidance to a series of common-sense factors set out
in the state’s Rules of Professional Conduct. See Ind. Rules
of Professional Conduct 1.5(a) (discussing things like
customary fees for similar legal services, time, and labor
required). When the parties haggle over the number of
attorney hours billed, Indiana courts permit the judge to
take into account the “responsibility of the parties in
incurring the attorneys’ fees.” Weiss v. Harper, 803 N.E.2d
201, 208 (Ind. Ct. App. 2003). For cases relying on the
Underground Storage Tank Act, a court must also be
careful to allocate attorney hours to each particular
cause of action, because a court cannot “authorize re-
imbursement of fees incurred in pursuing . . . non-USTA
claims . . . , regardless of how closely related those
claims might be to the USTA claim.” Shell Oil Co. v.
Meyer, 684 N.E.2d 504, 524 (Ind. Ct. App. 1997); summarily
affirmed in relevant part, 705 N.E.2d 962, 981 (1998).
Noting that the Act protects only a narrow right to
contribution from an operator for corrective action costs,
the district court concluded that the statutory purpose
is satisfied “once a defendant accepts its legal obliga-
tion and agrees to assume responsibility for remediating
the site.” Wickens, 569 F. Supp. 2d at 791. After this point,
any further action by the plaintiff’s attorney logically
must relate to claims outside the scope of the Act for
additional damages or indemnification. Applying its
statutory-purpose test, the district court selected Janu-
ary 9, 2007, as the date after which Shere’s efforts were
no longer focused on obtaining relief under the Act and
thus were not recoverable from Shell. By January 9, 2007,
10 Nos. 09-2737 & 09-2620
Shell had offered to cover all of the Wickenses’ past
and future corrective action costs; all that remained, the
district court explained, were claims outside the scope
of the Act for additional damages and attorneys’ fees.
As the parties have raised objections to various aspects
of the district court’s decision on fees, it is helpful to
clarify the standard of review that pertains to each issue.
We review de novo the district court’s legal analysis and
methodology, which includes its decision to employ an
approach based on statutory purpose. Montgomery v.
Aetna Plywood, Inc., 231 F.3d 399, 408 (7th Cir. 2000). The
application of that test, assuming that it is the correct
one, is subject to a more lenient abuse-of-discretion stan-
dard. Anderson v. AB Painting and Sandblasting, Inc., 578
F.3d 542, 544 (7th Cir. 2009).
We begin with the fundamental question whether
the court’s use of the statutory-purpose test was permissi-
ble. Rather than looking at purpose, Shere contends that
the Act permits reimbursement of all fees that contribute
to the plaintiffs’ success. In so arguing, he relies on
the following statement in the statute: “A person who
brings a successful action to receive a contribution from
an owner or operator is also entitled to receive rea-
sonable attorney’s fees and court costs from the owner
or operator.” Ind. Code § 13-23-13-8(b) (emphasis
added). Shere contends that the district court ignored
significant legal victories that he achieved for his clients
after January 9, 2007. This argument, however, entirely
ignores the fact that the Indiana courts have interpreted
the statutory language to be limited to claims under
Nos. 09-2737 & 09-2620 11
the Act; in Meyer, the court expressly held that fees
may not be awarded on the basis of non-Act claims. 684
N.E.2d at 524. The district court was therefore correct
to disregard the fact that the Wickenses received a
large lump-sum payment from Shell or that Shell
promised to indemnify the Wickenses for tort lia-
bility related to the contamination.
Shere also complains, relying on Anderson, 578 F.3d at
545, that the district court’s approach to attorneys’ fees
was inappropriately guided by its concern that the par-
ties’ litigation costs were disproportionate to the value of
the Wickenses’ property. The record, however, does not
support this accusation. Shere points to only a few in-
stances where the court made an off-hand refer-
ence comparing the relative size of the settlement
with Shere’s attorneys’ fees request. At most, these com-
ments might indicate that the court momentarily lost
sight of the large projected cost of future corrective
action. The court’s remarks do not, however, imply that
it calculated its fee award using an inappropriate pro-
portionality analysis. The only reasonable inference
from the record is that the dispositive factors were the
time when the fees were incurred and their relation to
the Wickenses’ claims under the Act, and nothing else.
The court’s decision to rely on the purpose behind the
Act was therefore supported by Indiana law and not
otherwise objectionable. The more difficult question—or
at least the question to which the parties have devoted
more energy—relates to the court’s selection of a date
by which the statutory purpose was fully satisfied. The
12 Nos. 09-2737 & 09-2620
court used January 9, 2007, as the appropriate cut-off
date. Shell suggests three earlier alternative dates as
better choices: January 13, 2005; August 21, 2006; or
November 21, 2006. Shere, not surprisingly, urges us to
choose a later date.
We consider first whether it was an abuse of discretion
to choose any date later than January 13, 2005, when
Shell’s attorney allegedly offered to remediate the
Wickenses’ property and to respond in good faith to
IDEM. Assuming that Shell did in fact make this offer, a
fact Shere contests, the district court found that Shell’s
refusal to take responsibility for the Gardner property
was an abdication of the duties the company owed to the
Wickenses under the Act. IDEM, recall, had combined
both pieces of property into a single investigation, and
the district court found that the state agency’s action
effectively made the Wickenses responsible for the
Gardner property. Under those circumstances, it would
not make any sense for the Wickenses to agree to limit
Shell’s liability solely to their own property when they
believed that Shell should also be on the hook for the
liability the Wickenses faced because Shell’s tanks alleg-
edly caused harm to the Gardner property.
Shell contends that the Act does not require it to take
responsibility for another person’s property and thus
that attorneys’ fees were not available for this part of the
Wickenses’ case. The Act, however, specifically provides
that any person who either voluntarily or by order
from IDEM undertakes corrective actions “is entitled to
receive a contribution from a person who owned or
Nos. 09-2737 & 09-2620 13
operated the underground storage tank.” Ind. Code § 13-
23-13-8(b). This language shows that it is irrelevant
under the Act whether the person ordered to take action
owns the property, and thus that Shell’s argument
cannot prevail.
The district court also erred, Shell asserts, when it
found that the Wickenses “lacked the power . . . to accept
Shell’s partial acceptance of responsibility” in Janu-
ary 2005. Because the Act allowed the Wickenses to
recover a “contribution” from Shell, Shell reasons that
the Wickenses had the ability to accept Shell’s offer to
cover a portion of the liability. Though this is obviously
true, it is beside the point. The Wickenses had a
right under the Act to hold Shell liable for the full ex-
tent of the corrective action costs they owed, and that
amount was greater than the offer Shell was making
at the time.
Shell’s first fallback position from its preferred date of
January 2005 is August 21, 2006, which is when it sub-
mitted its Further Site Investigation work plan to IDEM.
Shell asserts that a few months earlier, on March 13,
2006, it informed IDEM that it would take responsibility
for the Wickenses’ property. Delivery of the work plan,
it continues, was the final step needed to take full re-
sponsibility under the Act. The district court rejected
this alternative date because Shell’s work plan was
neither approved by IDEM nor accompanied by an
express commitment to indemnify the Wickenses for
future corrective action costs. Indeed, at that time Shell
was still contending that some of the contamination on
14 Nos. 09-2737 & 09-2620
the Wickenses’ property was attributable to the other
company’s tanks on the Gardner lot.
In contesting the district court’s conclusion, Shell
argues that IDEM’s rejection of its work plan is irrelevant
to the fee inquiry, intimating that it was sufficient for
Shell to make a good-faith effort to comply with IDEM’s
directives. Even if this were true—and we are not
saying that it is—the district court was entitled to find
that Shell had not met even that more modest standard.
Notably, as of August 21, 2006, Shell still had not
promised to cover the Wickenses’ corrective action
costs. Indemnifying the Wickenses for these costs,
Shell counters, is outside the scope of the Act because
“indemnification and statutory contribution” are “two
separate theories.” Bourbon Mini-Mart, Inc. v. Gast
Fuel Services, Inc., 783 N.E.2d 253, 257 (Ind. 2003). Bourbon
Mini-Mart, however, does not help Shell, because in
that case the court was drawing a distinction between
indemnification for tort claims and liability under the
Act. Id. at 256-57. The Wickenses’ request for indemni-
fication against future corrective action costs deals
strictly with the liability imposed pursuant to the Act.
As the Act permits plaintiffs to recover future cor-
rective action costs, there is no impediment to seeking
indemnification under its terms. Meyer, 684 N.E.2d at
520-21.
Shell’s final fallback date is November 21, 2006, the day
when it offered “to pay 100% of the past and future
corrective action costs at the Wickens property, to indem-
nify the Wickens and any future owners or tenants of
Nos. 09-2737 & 09-2620 15
the property against these costs . . . , and to pay rea-
sonable costs of litigation as determined by the Court.”
Though the district court admitted that “[Shere’s] efforts
at this point to collect attorneys’ fees and repayment of
costs from Shell clearly appear to be driving the litiga-
tion,” it recognized that negotiations over attorneys’
fees was “routine” and nothing indicated that Shere’s
actions in prolonging the litigation at this stage were
unreasonable. Shell’s refusal to accept the magistrate
judge’s December 2006 settlement proposal, the district
court reasoned, implied that Shell too was responsible
for the continuation of the litigation.
Shell comes closest to a reasonable position with this
argument, but we are satisfied that the district court
did not abuse its discretion when it rejected this option
as well. As the court noted, this offer did not resolve
the issue of the precise amount of costs and fees that
Shell would assume. Shere responded to it with an
email dated November 30, 2006, in which he did propose
specific numbers, but Shell rejected that counteroffer.
The district court took the position that Shell’s Novem-
ber 21, 2006, offer did not effectively resolve the case;
there is no rigid rule saying that offers to litigate must be
accepted. See Moriarty v. Svec & Sons Funeral Home, 233
F.3d 955, 967-68 (7th Cir. 2000) (noting that a settlement
offer is only one of many factors to be taken into consider-
ation when awarding attorneys’ fees). Though the fees
awarded by the court are required to be reasonable,
counsel may legitimately hold out for a better deal (for
at least some time) because fee litigation is costly and
often is not reimbursed as part of the fee award.
16 Nos. 09-2737 & 09-2620
Having disposed of Shell’s challenges to the district
court’s choice of January 9, 2007, as the cut-off date, we
turn now to Shere’s arguments for a later date. Shere
criticizes the district court’s decision because it was
based in part on the court’s earlier “time-out” order
temporarily limiting attorneys’ fees. That order, Shere
asserts, conflicted with the fee-shifting provisions in
the Act. As detailed above, the district court permitted
Shere to recover fees incurred after Shell’s November 21,
2006, settlement offer, because it recognized that Shere
needed some time to try to tie up the last few details of
a full settlement. But the court was entitled to force an
end to that process, and that is just what it did by deter-
mining that on January 9, 2007, it would not wait
any longer for the parties to resolve the fee dispute. In
fact, the court was more generous than this, since it
restricted fees for only 90 days while the litigation was on
pause. There was thus little reason for Shere’s hyperbolic
emergency motion to reconsider the imposition of the
“time-out” period. The court saw Shere’s overblown
reaction as evidence that by this time he was unneces-
sarily expanding the scope of the IDEM investigation.
Shere also challenges the district court’s decision to
deny fees related to the work he did after January 9,
2007, drafting the settlement agreement. The costs associ-
ated with putting an agreement into writing would
have been incurred even if the Wickenses had agreed to
settle before January 9, 2007. The district court did, how-
ever, award Shere fees for the month and a half after
Shell offered to litigate the fee award in court. This, the
court was entitled to conclude, was enough. The same
Nos. 09-2737 & 09-2620 17
reasoning applies to Shere’s contention that he should
have been awarded fees for his work in litigating his fee
petition. The district court did not abuse its discretion
when it chose not to sort through Shere’s bills to calculate
how many hours were devoted solely to finalizing the
settlement agreement or litigating the fee dispute.
The cut-off date is not the only bone of contention
Shere has with the district court. He also objects to the
court’s decision to grant Shell’s Rule 59(e) motion re-
questing that Colleen Shere’s fees be deducted from his
fee award. (The award did not identify Colleen Shere as
the recipient of these fees; instead, they were folded
into Shere’s own award.) The district court ex-
plained that these fees could not be recovered because
Colleen Shere was not a licensed attorney and thus
was not authorized to bill her services as an attorney
under Rule 5.5 of the Indiana Rules of Professional Con-
duct.
On appeal, Shere contends that Colleen Shere’s work
was cost-effective and consistent with the practice of
unlicensed attorneys temporarily working under the
supervision of other attorneys while they seek an
Indiana license. Yet, as the district court pointed out,
Colleen Shere was not actively trying to reinstate her
license. Nothing prevented Shere from simply billing
Colleen Shere’s time using some non-attorney designation.
Shere notes that even if the district court properly
excluded the fees associated with Colleen Shere’s work
product, the court made a small calculation error that
should be corrected. In its August 2008 final judgment
18 Nos. 09-2737 & 09-2620
order, the court awarded 89% of Colleen Shere’s fees,
because it determined that 11% of all attorneys’ fees
incurred prior to January 9, 2007, were devoted to the
pursuit of claims not covered by the Act. Later, in its
ruling on Shell’s Rule 59 motion, the district court sub-
tracted $9,275, which constituted 100% of the fees Shere
originally requested for Colleen Shere’s work. This
appears to have been a clerical error that cost Shere
$1,020.25; thus, this error should be corrected on remand.
Relatedly, Shere claims that the district court’s fee
award failed to account for $5,419.23 in disbursements.
He draws this court’s attention to a series of bills and
receipts in the record that purportedly support this
claim. Given the complexity of the bills involved and
the need to apportion pre- and post-cut-off date costs, it is
startling that Shere failed to present evidence linking up
individual billing entries with his total calculation. This
court will not do Shere’s work for him, especially when
our review of the materials indicates that it is likely
that Shere made several miscalculations. Without a
better showing from him, we will assume that the
district court did its job properly when it decided to
award $37,443.25 in litigation costs and disbursements.
B
Attorneys’ fees are not the only topic on appeal. Shell
also takes issue with the district court’s decision to
award the Wickenses costs related to the environ-
mental testing that HydroTech conducted in May and
June 2007. While the court felt that HydroTech and Shere
Nos. 09-2737 & 09-2620 19
were by then unnecessarily expanding the scope of the
IDEM investigation, it concluded that the Wickenses
were nonetheless entitled to these costs because they
were incurred pursuant to an IDEM-approved plan. This
decision, Shell asserts, incorrectly presumed that IDEM
officially approved HydroTech’s plan. Furthermore, as
none of HydroTech’s data was ever supplied to IDEM,
Shell says that it is beyond the pale to reimburse the
Wickenses for useless work. The court’s approach to
corrective action costs was irreconcilable, in Shell’s
view, with its decision denying attorneys’ fees covering
the same period. It was Shere, Shell argues, who pushed
for the expanded March 2007 work plan.
We review a district court’s award of damages under
the deferential clear error standard, Int’l Production Special-
ists, Inc. v. Schwing America, Inc., 580 F.3d 587, 598 (7th
Cir. 2009), and Shell has not come close to upsetting
our confidence in the district court’s decision. Shell’s
representation that IDEM never approved HydroTech’s
work plan is misleading. In fact, IDEM conditionally
approved the work plan and ordered HydroTech to
commence further investigation or risk being subjected to
civil penalties.
The fact that HydroTech never submitted the data to
IDEM is almost certainly a result of the magistrate
judge’s order on July 18, 2007, barring the parties
from engaging in any further corrective action. Though
HydroTech may have finished testing by that time, it
may still have been compiling its data and working on a
report. Before the magistrate judge’s order was lifted, the
20 Nos. 09-2737 & 09-2620
parties settled. At that point, HydroTech ideally should
have handed over what it had to IDEM, but it is hard to
blame it for inaction when it no longer would be compen-
sated for its time. (Shell apparently has no interest in
HydroTech’s data.)
There is admittedly some tension between the district
court’s treatment of corrective action costs and its
handling of attorneys’ fees. Even so, the district court
could reasonably have believed that carrying out a
sensible (albeit expansive) investigation as ordered by
IDEM was less blameworthy than prolonging the litiga-
tion past January 2007 by using the Wickenses’ control
of the investigation as leverage over Shell. Thus, we see
no error in ordering Shell to pay for the corrective
action costs incurred in May and June 2007.
C
In his cross-appeal, Shere also argues that the district
court erred when it denied his request for prejudgment
interest on the attorneys’ fees and corrective action costs
awarded. Under Indiana law, prejudgment interest
is warranted if the damages are “ascertainable in accor-
dance with fixed rules of evidence and accepted
standards of valuation at the time the damages accrued.”
Cincinnati Ins. Co. v. BACT Holdings, Inc., 723 N.E.2d 436,
441 (Ind. Ct. App. 2000) (internal quotation marks omit-
ted). Though damages must typically be subject to
“simple mathematical calculation,” courts have awarded
prejudgment interest “even where some degree of judg-
ment must be used to measure damages.” Hayes v. Chap-
Nos. 09-2737 & 09-2620 21
man, 894 N.E.2d 1047, 1054 (Ind. Ct. App. 2008). Thus,
an attorney may recover prejudgment interest for bills
related to litigation even though her client disputed the
bill and the court rejected the attorney’s proposed
hourly rate. Community State Bank Royal Center v. O’Neill,
553 N.E.2d 174, 177-78 (Ind. Ct. App. 1990) (applying
general rule to attorneys’ fees).
Nonetheless, “[d]amages that are the subject of a good
faith dispute cannot allow for an award of prejudgment
interest.” Whited v. Whited, 859 N.E.2d 657, 665 (Ind.
2007) (internal quotation marks omitted). As the dis-
trict court found that the corrective action costs and
attorneys’ fees were reasonably contested, it declined to
award prejudgment interest. We review this decision for
an abuse of discretion. See Twenhafel v. State Auto Prop.
and Cas. Ins. Co., 581 F.3d 625, 630-31 (7th Cir. 2009).
We are tempted to say that Parts II.A and II.B of this
opinion show conclusively that the awards here were
subject to dispute and thus not eligible for prejudgment
interest under Indiana law. We will nonetheless
address Shere’s argument briefly. First, the decision in
Meyer does not mandate the imposition of prejudgment
interest. The court there approved the award of interest
only as a better alternative to the trial court’s use of a
lodestar-multiplier to capture its concern about the
delay in payment. Meyer, 684 N.E.2d at 526-27. Further-
more, the attorneys’ fees in Meyer were much more
easily calculable than in this case: in order to distinguish
between claims within and outside the Act, the court
had only to review the billing records or apply a simple
apportionment formula. Id. at 524-25; see also O’Neill,
22 Nos. 09-2737 & 09-2620
553 N.E.2d at 177-78 (routine dispute over hourly
rate). In contrast, the district court here could not begin
to calculate fees or costs until it had determined the
precise point at which the goals of the litigation
shifted away from pursuing the Wickenses’ claim under
the Act. See Whited, 859 N.E.2d at 665 (denying
claim for prejudgment interest because of complex dam-
ages calculations); Hammes v. Frank, 579 N.E.2d 1348,
1357 (Ind. Ct. App. 1991) (same). This methodology
involved more than a “simple mathematical calculation,”
and so the district court did not abuse its discretion
in denying Shere’s request for prejudgment interest.
D
Finally, Shell argues that the district court’s judgment
should be vacated pursuant to Federal Rules of Civil
Procedure 60(b)(3) because Shere failed to disclose Em-
ployers’s role as a major source of the Wickenses’ litiga-
tion funds. Though the district court faulted Shere
for not revealing his relationship with Employers, it
decided that Shere’s conduct did not warrant the
relief requested. We review the district court’s decision
denying Shell’s Rule 60(b) motion for an abuse of dis-
cretion. Musch v. Domtar Industries, Inc., 587 F.3d 857, 861
(7th Cir. 2009).
Rule 60(b)(3) provides that a court may set aside
a judgment if a party engaged in “fraud (whether previ-
ously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party.” To obtain relief
under Rule 60(b)(3), a party must show that she has a
Nos. 09-2737 & 09-2620 23
meritorious claim that she was prevented from “fully
and fairly presenting” at trial as a result of the adverse
party’s fraud, misrepresentation, or misconduct. See Ty
Inc. v. Softbelly’s Inc., 353 F.3d 528, 536 (7th Cir. 2003);
Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). “It
is well-established that Rule 60(b) relief is an extra-
ordinary remedy and is granted only in exceptional
circumstances.” Dickerson v. Board of Educ., 32 F.3d 1114,
1116 (7th Cir. 1994) (internal quotation marks omitted).
Rule 60(b)(3) does not, however, displace a judge’s
power to set aside a judgment for fraud on the court. FED.
R. C IV. P. 60(d)(3). Fraud on the court is actionable only
if it prejudices the adverse party. See Oxxford Clothes XX,
Inc. v. Expeditors Int’l of Washington, Inc., 127 F.3d 574, 578
(7th Cir. 1997). A party seeking to set aside a judgment
under Rule 60(b)(3) or the court’s inherent power must
prove fraud by clear and convincing evidence. See Ty
Inc. v. Softbelly’s, Inc., 517 F.3d 494, 498 (7th Cir. 2008);
Lonsdorf, 47 F.3d at 897.
Shell contends that Shere hid Employers’s role in the
litigation in violation of its obligation under the Federal
Rules of Civil Procedure to disclose insurance arrange-
ments. The rules provide that a litigant must auto-
matically disclose “any insurance agreement under
which an insurance business may be liable to satisfy all
or part of a possible judgment in the action or to
indemnify or reimburse for payments made to satisfy
the judgment.” FED. R. C IV . P. 26(a)(1)(A)(iv). Given
Employers’s involvement as the insurance company
funding the litigation, the district court concluded, as do
we, that Shere appears to have evaded his responsibilities.
24 Nos. 09-2737 & 09-2620
The choice of a proper sanction for violations of the
discovery rules, however, lies in the discretion of the
district court. Here, the court reasonably drew a line
between an apparent discovery violation and fraud. In
its Rule 60(b) motion, Shell has not come close to
showing by clear and convincing evidence that the
district court erred and that Shere’s actions were fraudu-
lent in nature. Furthermore, Shell suffered no prejudice
as a result of Shere’s misrepresentations. Though the
district court criticized Employers for doing little to
control the costs of litigation, Shell’s knowledge of Em-
ployers’s role would not have changed anything. Shell’s
assertion that it would have reached a different settle-
ment if it knew about Employers’s “deep pockets” may
even cut against it. In that situation, Shell might have
offered a larger settlement, thinking that it could not
simply wait until the Wickenses’ funds ran out.
E
Shere devotes a significant portion of his brief to con-
testing a number of the district court’s findings that
portray him in a less than favorable light. But his
request shows why we cannot do anything about this. He
says, in his brief, that “this appeal also concerns pages
of dicta, partially and ambiguously withdrawn, in
which the district court gave scathing treatment to hard-
earned professional reputations. The undersigned re-
spectfully requests that this Court vacate and remand
the district court’s orders to allow this dicta to be cor-
rected.” Even if the district court had formally found
Nos. 09-2737 & 09-2620 25
misconduct, an appeal is not the proper remedy. See, e.g.,
Seymour v. Hug, 485 F.3d 926, 929 (7th Cir. 2007) (explaining
that attorneys can only appeal monetary sanctions).
What Shere does not mention is that the district court
was, in many places, equally critical of Shell’s approach
to this case, and that it had some complimentary things
to say about Shere. We sit to review judgments, not
particular language in district court opinions, and Shere
will have to be satisfied with our decision on the
merits, which is largely favorable to him.
***
We R EVERSE the district court’s judgment insofar as it
miscalculated when it deducted Colleen Shere’s fees
from Shere’s attorneys’ fees award and R EMAND for
further proceedings consistent with this opinion. We
A FFIRM the remainder of the district court’s judgment.
8-31-10