Adams et al v. USA et al

Filing 62

WRITTEN Opinion entered by the Honorable Elaine E. Bucklo on 6/26/2012: For the reasons provided in the Statement section of this Order, "Plaintiffs' Motion Pursuant to Rule 60(b)" (Dkt. No. 53 ) is granted. Status set for 7/13/12 at 9:30 am. Mailed notice (For further detail see Written Opinion) (nf, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Elaine E. Bucklo

CASE NUMBER

10 C 3600

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/26/12

Adams vs. United States of America, et al.

DOCKET ENTRY TEXT

For the reasons provided in the Statement section of this Order, “Plaintiffs’ Motion Pursuant to Rule 60(b)”
(Dkt. No. 53) is granted. Status set for 7/13/12 at 9:30 am.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
On Aug. 31, 2011, I entered an order granting plaintiffs’ motion to voluntarily dismiss the United
States as a defendant in this medical malpractice action. At the same time, I dismissed the case against the
remaining, non-federal defendants without prejudice. Because subsequent events have shown the case
cannot proceed against those non-federal defendants in state court, plaintiffs have filed a Fed. R. Civ. P.
60(b) motion to vacate that portion of my order dismissing the claims against the non-federal defendants
without prejudice. They request that I exercise supplemental jurisdiction over those claims. For the reasons
stated, the motion is granted.
I.
Because the procedural history of his case is complex and central to understanding my ruling in this
matter, I will provide it in some detail. Plaintiffs Alexander and Laura Adams first filed this suit on May 17,
2009, in the Cook County Circuit Court. Named in the suit were: Ingalls Memorial Hospital, podiatrists Dale
Brink and Timothy Krygsheld, Performance Foot and Ankle Center, LLC, and Family Christian Health
Center and two of its doctors.
Because Family Christian Health Center is federally funded, the case was removed to federal court on
Sept. 9, 2009. The United States was substituted as defendant in place of Family Christian Health Center and
its doctors. The United States then moved to dismiss for plaintiffs’ failure to exhaust their administrative
claim under the Federal Tort Claims Act, 28 U.S.C. § 2675(a). I granted that motion on Oct. 21, 2009, and
remanded the case against the remaining defendants to state court. (See Case No. 09-5577, Dkt. No. 16.)
On April 6, 2010, plaintiffs’ Federal Tort Claims Act claim was denied. On June 10, 2010, with their
case against the non-federal defendants still pending in state court, plaintiffs filed suit in this court, naming
all defendants. The non-federal defendants moved to dismiss on the ground that the same claims were
pending in state court. In response, plaintiffs filed a motion to stay in the state case, which was denied on
July 30, 2010. On Aug. 11, 2010, plaintiffs voluntarily dismissed the state case, and shortly thereafter the
non-federal defendants withdrew their motion to dismiss in this case.
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STATEMENT
On Aug. 24, 2011, plaintiffs filed a motion to voluntary dismiss the United States as a defendant. The
single-page motion did not reference the non-federal defendants or ask for any relief in regard to those
defendants. I granted the motion in an Aug. 31, 2011, minute entry, and dismissed the case as to the nonfederal defendants without prejudice.
On Sept. 27, 2011, plaintiffs filed a motion to clarify or vacate this order.1 They sought clarification
that the dismissal of the non-federal defendants would not be considered a voluntary dismissal under Fed. R.
Civ. P. 41(a)(1), so as to avoid the potential implications of the two-dismissal rule. See Fed. R. Civ. P.
41(a)(1)(B) (“Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the
plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a
notice of dismissal operates as an adjudication on the merits.”). Plaintiffs asked that I clarify my ruling to
show that dismissal was without prejudice, or in the alternative vacate the dismissal of the non-federal
defendants. Plaintiffs also requested that “[i]f this matter is dismissed for reasons unknown to the Plaintiff
that would prejudice this Plaintiff from re-filing, Plaintiff respectfully requests that the dismissal order be
vacated.”
I denied plaintiffs’ motion on Oct. 21, 2011, explaining that the two-dismissal rule was not implicated
by my dismissal of the non-federal defendants, which was pursuant to Fed. R. Civ. P. 41(a)(2). (See Dkt. No.
52.) Both plaintiffs’ motion and my order referenced the fact that at the Aug. 31, 2011, hearing on plaintiffs’
motion to voluntarily dismiss the United States, both I and the parties believed the case could be remanded to
state court because it was a re-filed case based on a case which itself had been removed from state court.
After the hearing, but before entering my order, I realized I did not have authority to remand the case. As
such, and because all the remaining claims were based on state law, I declined to exercise supplemental
jurisdictional over the claims against the remaining defendants and dismissed them without prejudice.
In the normal course of events, of course, I would not exercise supplemental jurisdiction over state
claims when dismissing a federal defendant. See RWJ Mgmt. Co., Inc. v. BP Prod. N. Am., 672 F.3d 476,
479–80 (7th Cir. 2012). That general presumption can be overcome under certain circumstances, including
where a statute of limitations precludes the filing of the pendent claim in state court. Id. at 480. I perceived
no reason why the general presumption should not be applied when I entered my Aug. 31, 2011, order,
however, nor did I when I denied plaintiffs’ initial motion to clarify or vacate that order.
Unfortunately, plaintiffs’ first motion to amend the judgment missed the obstacle to their proceeding
in state court, which emanated not from the Federal Rules of Civil Procedure, but from state law. On Nov. 4,
2011, plaintiffs again filed suit in state court against the non-federal defendants. This ran afoul of Illinois
law, which, in the case of voluntary dismissals, allows for one re-filing within a year of the voluntary
dismissal. 735 ILCS 5/13-217, see Timberlake v. Illini Hosp., 661 N.E.2d 1145, 1146 (Ill. App. Ct. 1996).
Cook County Circuit Judge Kathy M. Flanagan, ruling on defendants’ motion to dismiss, held that plaintiffs
had one year from Aug. 11, 2010, to re-file their suit in state court. Because they failed to do so, Judge
Flanagan granted the motion to dismiss on March 21, 2012. (See Dkt. No 53, Ex. D.) Judge Flanagan
recently denied plaintiffs’ motion to reconsider her ruling. (See Dkt. No. 60, Ex. A.)
In light of the dismissal in state court, plaintiffs filed this Rule 60(b) motion. Plaintiffs contend that
events since my Aug. 31, 2011, dismissal order show that my dismissal of the non-federal defendants was the
result of “mistake, inadvertence, or surprise.” See Fed. R. Civ. P. 60(b)(1). The mistake, according to
plaintiffs, was the belief of all the parties that the case against the non-federal defendants could proceed in
state court. Defendants contend that plaintiffs’ motion is untimely, and that Rule 60(b) relief is not available
simply because plaintiffs’ counsel misunderstood the law.
II.
Under Fed. R. Civ. P. 60(b)(1), the district court “may relieve a party . . . from a final judgment,
order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” See Eskridge v. Cook
County, 577 F.3d 806, 808 (7th Cir. 2009). “Relief under Rule 60(b) is an extraordinary remedy granted only
in exceptional circumstances.” Nelson v. Napolitano, 657 F.3d 586, 589 (7th Cir. 2011). Additionally, a
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STATEMENT
motion under Rule 60(b)(1) “must be made within a reasonable time,” but in no event longer than a year after
the entry of judgment. Fed. R. Civ. P. 60(c)(1). What constitutes a reasonable time for making such a
motion “‘depends upon the facts of each case, taking into consideration the interest in finality, the reason for
delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and [the consideration of]
prejudice [if any] to other parties.’” Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th Cir. 1986)
(quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)).
III.
Both sides agree that this case is strikingly similar to Eskridge, 577 F.3d at 807, in which a medical
malpractice suit “developed into multiple actions in both Illinois and federal court, and, amid the procedural
complexity, the Eskridges’ counsel made a critical error.” The Eskridge suit, like the instant case, began in
Cook County Circuit Court, but was removed to this court because some of the defendants were federal
employees. Id. Again, as in this case, the plaintiffs failed to exhaust their administrative remedies as to the
federal defendants as required by the Federal Torts Claim Act, so the case was dismissed as to those
defendants and remanded to state court as to the remaining defendant, Cook County. Id. After exhausting
their administrative remedies, the plaintiffs filed a second lawsuit in federal court against the United States
and Cook County. Id. They then voluntarily dismissed their suit in state court. Id.
At some point, the Eskridge plaintiffs decided to dismiss the United States as a defendant and proceed
only against the county in state court. Id. They re-filed their suit in Cook County Circuit Court, and moved
in this court to voluntarily dismiss both defendants, a motion the court granted. Id. at 807–08.
However, this was the plaintiffs’ second re-filing of their state lawsuit, and so they ran headlong into
Illinois’ “single re-filing” rule under 735 ILCS 5/13-217. Id. at 808. When Cook County moved to dismiss
the state lawsuit on that ground, the Eskridge plaintiffs returned to federal court and sought relief under Rule
60(b). Id. The district court denied the motion, rejecting plaintiffs’ claim that they intended only to dismiss
the United States from the federal suit. Id. The court further reasoned that this type of “procedural misplay”
was not the “mistake or inadvertence” referred to in Rule 60(b). Id.
Affirming, the Seventh Circuit noted the broad discretion to which district courts are entitled in ruling
on 60(b) motions. Id. at 609. The appeals court said that discretion was even greater in the Eskridge case
given that plaintiffs’ appeal was timely only with respect to their motion for reconsideration of the court’s
ruling on their Rule 60(b) motion. Id. In light of this broad discretion, the appeals court held that the district
court’s ruling must stand. Id. The appeals court noted that the procedural error did not fit neatly into the
categories of relief spelled out in Rule 60(b). Id.
Specifically, the Seventh Circuit found that the error did not fall squarely into the “excusable neglect”
category, given that the dismissal order was entered on the plaintiffs’ own motion. Id. The Seventh Circuit
noted, however, that it was not holding that the type of legal error made by plaintiffs’ counsel, “based on the
pitfalls of parallel federal and state lawsuits,” would never justify relief. Id. at 810 (citing Arrieta v.
Battaglia, 461 F.3d 861, 865 (7th Cir. 2006)). A different district judge, the court noted, may have been
persuaded to excuse the procedural error based on plaintiffs’ sunk litigation costs and their interest in
reaching the merits of the case. Id. (citing Webb v. James, 147 F.3d 617, 622 (7th Cir. 1998)).
The teaching of Eskridge, then, is that a district court has broad discretion to consider whether
attorney error constitutes excusable neglect. Id.; see Robb v. Norfolk & Western Railway Co., 122 F.3d 354,
357 (7th Cir. 1997). In this case, I find that it does. Plaintiffs did not seek dismissal of all defendants in their
initial motion, but sought dismissal only of the United States. Despite the initial confusion over my ability to
remand the case against the non-federal defendants, plaintiffs’ counsel should have realized the implications
of Illinois’ single-refiling rule. Nonetheless, I find that this error was excusable neglect in light of the
complicated procedural history of this case and the complex interplay of state and federal rules of civil
procedure.
Defendants additionally argue that plaintiffs’ Rule 60(b) motion is untimely because it was not made
within a reasonable amount of time. What constitutes a reasonable amount of time, however, is flexible and
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STATEMENT
depends on the circumstances. See Kagan, 795 F.2d at 610. It was not unreasonable for plaintiffs’ counsel to
wait until the state court ruled on the motion to dismiss before seeking relief in this court.
The podiatrist defendants also argue that the showing of a meritorious claim against them is a
precondition for relief under Rule 60(b). Plaintiffs cannot show that they have a meritorious claim because
their deposition testimony shows that this lawsuit was not filed within the statute of limitations, the podiatrist
defendants contend. There is some authority for the proposition that a movant seeking relief from a judgment
must show that he or she has a potentially meritorious claim. See Barnes v. City of Chicago, No. 98 C 5590,
2000 WL 1745180, at *4 (N.D. Ill. Nov. 27, 2000) (citing Teamsters, Chauffeurs, Warehouseman & Helpers
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992)). In the absence of fuller
briefing on the statute of limitations issue, however, I decline to base my ruling on this issue.
Finally, the podiatrist defendants argue that because the single re-filing rule is not a statute of
limitations, it is an inappropriate basis for exercising supplemental jurisdiction over the claims against the
non-federal defendants. I disagree. While not a statute of limitations, Illinois’ single-refiling rule functions
in much the same way in this case given that it is a procedural bar to plaintiffs’ seeking relief on the merits.
As such, and in the interests of providing a forum for reaching the merits of this case, I vacate that
portion of my Aug. 31, 2011, order that dismissed the case against the non-federal defendants without
prejudice. I will exercise supplemental jurisdiction over those claims.
IV.
For the reasons stated herein, “Plaintiffs’ Motion Pursuant to Rule 60(b)” (Dkt. No. 53) is granted.

1. This motion was not brought under any particular Rule of Civil Procedure. Defendants
describe it as a Rule 60(b) motion, but it could be considered a Rule 59(e) motion to alter or
amend a judgment, given that it was filed within 28 days of the entry of judgment.

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