Attorney's Misunderstanding Of Federal Procedure Does Not Entitle Client To Rule 60 Relief

Posted on November 4, 2011 by Michael Rigney

NELSON v. NAPOLITANO (September 15, 2011)

Herman Nelson and two other federal air marshals brought suit against the Department of Homeland Security, alleging age and race discrimination and retaliation. While the suit was pending, but before the DHS had answered the complaint, one of the plaintiffs was arrested and charged with sexual assault. Fearing that that fact might negatively affect their lawsuit, the plaintiffs voluntary dismissed their complaint under Rule 41(a)(1)(A). Nine months later, after the statute of limitations had run, the plaintiffs moved under Rule 60(b) to “reinstate the complaint.” Judge Dow (N.D. Ill.) denied the motion. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Kanne, Rovner, and Sykes affirmed. Although a voluntary dismissal under Rule 41 is generally treated as if the underlying case were never filed, the district court retains jurisdiction to consider a Rule 60(b) motion. So the district court did have jurisdiction to consider the motion. The Court concluded, however, that the district court did not abuse its discretion in denying it. Rule 60(b) allows the court to provide relief for several stated reasons. The plaintiffs never identified which basis it relied on – nor did it make any argument in support of any particular basis. In fact, plaintiffs' counsel mistakenly thought that federal practice mirrored Illinois practice. Under Illinois practice, he would have had a one-year safe harbor within which to refile his complaint. The district court was well within its discretion to determine that counsel's misunderstanding of federal practice did not justify Rule 60 relief.

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Second Post-Judgment Motion Defers Time To Appeal Only When First Motion Is Considered A New Proceeding

Posted on March 3, 2011 by Michael Rigney

THE YORK GROUP v. WUXI TAIHU TRACTOR CO. (February 4, 2011

The York Group was involved in a lawsuit in federal district court in Texas. It wanted Daniel Benefield to provide evidence in that lawsuit, so it subpoenaed him. Benefield neither complied with the subpoena nor sought any protection from it. Benefield also ignored a district court order enforcing the subpoena and two contempt hearings. The district court found him in civil contempt, fined him $22,000, and ordered him to pay York's legal fees. Benefield continued to ignore the proceedings -- until York garnished his checking account. Benefield sought relief under Rule 60(b), arguing that he was never served with the subpoena. Judge Lindberg (N.D. Ill.) held an evidentiary hearing and concluded that he had been properly served. Benefield sought reconsideration under Rule 59(e), in which he presented some new arguments. The court denied the motion. Benefield appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Tinder affirmed. The Court first had to decide which of the three orders (the contempt finding, the 60(b) order, and the 59(e) order) were reviewable. The contempt finding is not reviewable because it was a final order, the time for appeal has elapsed, and no post-judgment motion was filed in time to suspend its finality. The Rule 60 order, because it was not filed within the time to suspend the original judgment's finality, is treated as a new proceeding. Therefore, the timely Rule 59 motion deferred the time to appeal the Rule 60 order. Therefore, Benefield's notice of appeal on the Rule 60 order is timely and the Court has jurisdiction to consider it (and the Rule 59 motion arguments, if they are not waived). With respect to the Rule 60 motion, the district judge conducted an evidentiary hearing where he consider evidence from Benefield, a process server, and a next-door neighbor. The Court concluded there was clearly adequate evidence to support the district court's conclusion. The two new Rule 59 arguments, that the subpoena named both Benefield and his proprietorship and that the neighbor held a grudge against him, were forfeited. Both arguments should have been raised before or at the Rule 60 hearing. The Court did add that neither argument could be successful on the merits. The addition of the name of one's proprietorship on the face of a subpoena does not make it unenforceable. With respect to the neighbor, Benefield’s counsel rejected an opportunity to recess the hearing in order to rebut the affidavit.

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Movant Failed To Establish "Excusable Neglect" In Motion For Extension Of Time

Posted on July 8, 2010 by Michael Rigney

MURPHY v. EDDIE MURPHY PRODUCTIONS (July 1, 2010)]

Eddie Murphy Productions and the other defendants were involved in the creation of The PJs, an animated television show. In its three seasons on the air, the show won three Emmy Awards. Daryl Murphy (unrelated to Eddie) brought suit in 2004, asserting that the defendants used his copyrighted material for the show. The district court judge viewed videotapes of Murphy's material and The PJs and granted summary judgment to the defendants. The court concluded that the works were not substantially similar, there was evidence of prior creation, and there was no evidence of defendants' access to Murphy's material. While that decision was on appeal, Murphy filed another similar complaint. The district court promptly dismissed it. In 2008, Murphy filed a pro se pleading styled as a Rule 60 motion. Counsel for Murphy then appeared, withdrew the motion, and asked for leave to file an amended complaint. Several days after missing a second deadline, Murphy asked for another extension. Judge Darrah (N.D. Ill.) denied the request on the grounds both that he already missed two deadlines and that an amendment would be futile. Murphy appeals.

In their opinion, Judges Cudahy, Posner, and Evans affirmed. The Court noted the different standards governing a request for extension of time made before the deadline and one made after the deadline. The former may be granted for "good cause" while the latter should be granted only upon a showing of "excusable neglect." Here, the Court concluded that the district court acted within its discretion in finding no "excusable neglect." Both factors, prejudice to the defendant and reason for the delay, favored the defendants. The Court also concurred in the independent rationale for denial of the motion that an amendment would be futile.

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