Circumstances Warrant Recognizing Next Friend's Pro Se Motion
ELUSTRA v. MINEO (February 9, 2010)
Three sisters and their friends were enjoying a night at Buffalo Wild Wings restaurant in the summer of 2007. A dispute arose over the girls' bill. The police were called and the girls were arrested on charges of disorderly conduct. The charges were dropped. The sisters brought an action against the restaurant, its owner, and the responding police officer. The girls' mother, Christine Lopez, appeared as next friend of the two minor girls. The magistrate held a settlement conference, attended by the plaintiffs, Lopez, their attorney, and the defendants' attorneys. Although the conference was off the record, the magistrate judge reported that the parties agreed to a $6000 settlement. The girls' father, a nonparty, argued with the girls' attorney and declared that he would find new representation. At that point, the family left, although their attorney remained. The Magistrate Judge entered a recommendation to the district court to dismiss the case with prejudice in accordance with the settlement agreement. At a hearing a short time later before the district court, the girls' attorney appeared again and advised the district court that the girls' recollection was that was no agreement. The district court dismissed the case with prejudice. Ten business days later, Lopez filed a handwritten pro se “Motion to vacate and Reinstate.” Newly retained counsel supplemented the motion nine days later. The district court did not recognize the pro se filing as a Rule 59(e) motion and treated counsel’s motion as a Rule 60(b) motion and denied it. The girls appeal.
In their opinion, Judges Flaum, Wood and Sykes affirmed. The Court first considered its scope of review. If Lopez' handwritten motion is considered as a timely Rule 59(e) motion, then the time to appeal the underlying judgment did not begin to run until that motion was denied and the Court can consider the merits. If not, the Court can only review the denial of the motion to reconsider. The problem with the first motion is that it was brought pro se by Christine Lopez. Normally, next friends and other representative parties may not appear pro se. Although the Court determined that federal law controlled whether Lopez’ filing should be allowed, it found guidance within Illinois state law. The Court cited several Illinois cases where the court applied a flexible rule, particularly where the filing simply preserved a party's right to go forward, as opposed to a more general prosecution of a suit. The Court also emphasized that the purpose of the rule is to protect the rights of the represented party. The Court concluded that the circumstances of the case -- where the parties had counsel through judgment, where the parties retained counsel to litigate the Rule 59(e) and later proceedings, where the parties were only unrepresented for a short time, but where the next friend filed a pro se motion during that time to preserve their appellate rights -- warranted a recognition of the motion. The Court also concluded that the motion met the requirements of Rule 7(b)(1), notwithstanding its brevity. It was in writing, it stated the grounds for seeking the order, and it stated the relief sought. Having reached the merits, however, the Court rejected the girls' position. An oral settlement agreement is valid if there is an offer, acceptance, and meeting of the minds. Here, the only contemporaneous evidence is the magistrate judge’s statement on the record that the parties understood the consequences of their agreement and reached a settlement. That is enough to conclude that there was a meeting of the minds.
Ibrihim Kiswani was arrested for, and later acquitted of, an unlawful use of weapon charge. He filed an action against several police officers and the Phoenix Security Agency, alleging unlawful arrest and malicious prosecution, as well as other counts. Most of the counts were resolved prior to trial. Two counts against one individual officer were resolved at trial -- one on a motion for judgment as a matter of law and one by the jury. Judgment was entered on June 16, 2008. On June 24, Kiswani filed a renewed motion for judgment as a matter of law and a Rule 59 motion for a new trial. The magistrate judge denied the motions on August 20. On September 12, Kiswani moved for reconsideration of those motions. That motion was denied on September 24. Kiswani appeals (on September 29).
Michelle Eskridge died of pneumonia after having been treated at Access Community Health Network (Access) and Stroger Hospital. Access was a U. S. Public Health Service facility and Stroger was a Cook County facility. Michelle's parents sued Access and Cook County in state court. The United States removed the case to federal court, where the case against the U.S. was dismissed for failure to exhaust Federal Tort Claims Act remedies. The court remanded the case against Cook County to state court. The Eskridges exhausted their remedies and filed a second suit in federal court against the county and the United States and dismissed the earlier suit. Later, having decided to pursue only Cook County, the Eskridges filed yet a third lawsuit, in state court, against Cook County and moved to dismiss the federal suit. Their motion was granted. Meanwhile, in state court, Cook County moved to dismiss the suit on procedural grounds. Upon realizing the merits of the County’s defense, the Eskridges filed a motion in federal court for relief from their own voluntary dismissal, claiming they intended only to dismiss the United States. The court denied the motion. They then moved for reconsideration, a motion which was considered a second Rule 60(b) motion, which was also denied. The Eskridges appeal.