Moriconi v. Williamson et al
Filing
32
OPINION: The Court GRANTS the Motion to Vacate Order of Dismissal of Complaint Pursuant to Rule 60(b)(1) and (6) (d/e 23) and DENIES AS MOOT the Motion to Vacate Judgment of Dismissal Pursuant to Rule 59(a) and (e) (d/e 24). The Judgment (d/e 19) ent ered April 29, 2011, pursuant to this Court's April 20 and April 28, 2011, orders, is VACATED. Defendants' Motion to Dismiss (d/e 17) is REINSTATED and Plaintiff is directed to file his response to the Motion to Dismiss by June 13, 2011. Entered by Judge Sue E. Myerscough on 6/2/11. (ME, ilcd)
E-FILED
Thursday, 02 June, 2011 11:26:32 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PAUL F. MORICONI,
)
)
Plaintiff,
)
)
v.
)
)
NEIL WILLIAMSON, Sheriff,
)
Sangamon County, Illinois; TRAVIS )
KOESTER, Deputy Sheriff, Sangamon )
County, Illinois; and BRAD
)
TWERYON, Deputy Sheriff,
)
Sangamon County, Illinois,
)
)
Defendants.
)
No. 11-3022
OPINION
SUE E. MYERSCOUGH, United States District Judge.
On April 20, 2011, this Court granted the Motion to Dismiss (d/e
17) filed by Defendants Neil Williamson, Travis Koester, and Brad
Tweryon due to Plaintiff’s failure to file a response thereto. On April 28,
2011, this Court clarified that the dismissal was with prejudice.
On May 16, 2011, Plaintiff filed a Notice of Appeal. On the same
date, Plaintiff filed a Motion to Vacate Order of Dismissal of Complaint
Pursuant to Rule 60(b)(1) and (b)(6) (d/e 23) and a Motion to Vacate
Judgment of Dismissal Pursuant to Rule 59(a) and (e) (d/e 24). Plaintiff
also filed a memorandum in support thereof and the affidavit of
Plaintiff’s attorney.
On May 20, 2011, this Court, believing it lacked jurisdiction to rule
on the motions because of the Notice of Appeal, did not rule on the
motions and instead entered an order indicating the Court would grant
the Rule 60 motion if the Seventh Circuit remanded the action. The
post-judgment motions remain pending in this Court.
This Court now finds that, pursuant to Rule 4 of the Federal Rules
of Appellate Procedure, the Court has jurisdiction to rule on the two
pending pos-judgment motions, even though a Notice of Appeal has been
filed. Under Rule 4, “the district court retains jurisdiction to decide
certain timely post-judgment motions,” including motions pursuant to
Rule 59 and, if filed within 28 days of the judgment, motions filed
pursuant to Rule 60. Benson v. Grant Food Stores, L.L.C., 2011 WL
722256 (E.D. Pa. 2011); see also ConocoPhillips Co. v. Milestone Pacific
Properties, LLC, 2010 WL 4608223 (N.D. Cal. 2010) (finding “a notice
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of appeal does not become effective, and the district court does not lose
jurisdiction, until the district court rules on all motions for
reconsideration” filed within 28 days of judgment). Rule 4 provides as
follows:
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district
court any of the following motions
under the Federal Rules of Civil
Procedure, the time to file an appeal
runs for all parties from the entry of
the order disposing of the last such
remaining motion:
***
(iv) to alter or amend the
judgment under Rule 59;
***
(vi) for relief under Rule 60
if the motion is filed no
later than 28 days after the
judgment is entered.
(B)(i) If a party files a notice of appeal after the
court announces or enters a judgment--but before
it disposes of any motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal a judgment
or order, in whole or in part, when the order
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disposing of the last such remaining motion is
entered.
Fed.R.App.P. 4.
Here, Plaintiff filed his Rule 60 motion within 28 days of judgment
and also filed a timely motion pursuant to Rule 59. Plaintiff’s previously
filed notice of appeal is ineffective until this Court disposes of his two
pending posttrial motions. See Simmons v. Thurmer, 2009 WL
1687676 (E.D. Wis. 2009).
Pursuant to Rule 60(b)(1), a court may “relieve a party . . . . from a
final judgment” for “mistake, inadvertence, surprise, or excusable
neglect.” To vacate a default judgment under Rule 60(b), a party must
show good cause for the default, quick action to correct it, and a
meritorious claim in the underlying action. See Somerset Songs Pub. v.
Bertsos, 1992 WL 407297 (N.D. Ill. 1992). Whether to grant or deny a
motion to vacate under Rule 60(b) is within this Court’s discretion. See
Easley v. Kirmsee, 382 F.3d 693, 697 (2004).
Plaintiff claims he has a meritorious claim and his failure to file a
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response to the motion to dismiss was inadvertent and excusable neglect.
Specifically, Plaintiff’s attorney, by affidavit, stated he dictated a
response to the motion to dismiss and placed it on a side table for
transcription. The response was not, however, transcribed. Counsel
stated he became distracted regarding the filing due to trials the weeks of
April 11, 2011, and April 18, 2011.
Attorney carelessness can constitute excusable neglect, although it
remains within this Court’s discretion whether to grant relief. Federal
Election Com’n v. Al Salvi for Senate Committee, 205 F.3d 1015, 1020
(7th Cir. 2000), citing Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380 (1993); see also Harrington v.
City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (distinguishing
carelessness, which can constitute excusable neglect, with attorney
inattentiveness, which is not excusable). Here, this Court finds Plaintiff
acted quickly to vacate the judgment, has shown a meritorious claim in
the underlying action, and that his attorney’s actions constitute excusable
neglect.
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Therefore, this Court GRANTS the Motion to Vacate Order of
Dismissal of Complaint Pursuant to Rule 60(b)(1) and (6) (d/e 23) and
DENIES AS MOOT the Motion to Vacate Judgment of Dismissal
Pursuant to Rule 59(a) and (e) (d/e 24). The Judgment (d/e 19) entered
April 29, 2011, pursuant to this Court’s April 20 and April 28, 2011,
orders, is VACATED. Defendants’ Motion to Dismiss (d/e 17) is
REINSTATED and Plaintiff is directed to file his response to the Motion
to Dismiss by June 13, 2011.
ENTER: June 2, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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