Archibald et al v. Singh et al

Filing 26

ORDER, GRANTING 23 Motion for Relief from the Court's Order of Dismissal with Prejudice of Defendant Navdeep Singh filed by Plaintiffs. The 21 Order entered on December 22, 2017 dismissing Navdeep Singh with prejudice is VACATED. The Clerk's Office is DIRECTED to reinstate Navdeep Singh as a defendant in this action. Plaintiffs shall promptly file the executed summons. Signed by Judge Nancy J. Rosenstengel on 1/9/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES ARCHIBALD and
ANGELA ARCHIBALD,
Plaintiffs,
vs.
NAVDEEP SINGH and
ORBIT EXPRESS, INC.,
Defendants.

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Case No. 17-CV-848-NJR-RJD

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is Plaintiffs’ “Motion for Relief from the Court’s Order
of Dismissal with Prejudice of Defendant Navdeep Singh” (Doc. 23). Plaintiffs filed this
action on August 9, 2017. On December 14, 2017, the Court notified Plaintiffs that,
should they fail to serve Mr. Singh or otherwise respond to the Court’s Notice by
December 21, 2017, the Court would dismiss Mr. Singh for want of prosecution (See
Doc. 19). Involuntary dismissals for want of prosecution pursuant to Federal Rule of
Civil Procedure 41(b) are presumed to be with prejudice unless a court specifies
otherwise. See Hill v. United States, 762 F.3d 589, 591 (7th Cir. 2014). Plaintiffs took no
action in response to the Court’s Notice. Thus, on December 22, 2017, the Court
dismissed Defendant Navdeep Singh for want of prosecution pursuant to Rule 41(b)
(Doc. 21).
On January 5, 2018, Plaintiffs filed a motion to set aside the Court’s December 22

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Order pursuant to Federal Rule of Civil Procedure 60(b) (Doc. 23). Plaintiffs explain that,
on January 2, 2018, they received notice from the Ministry of the Attorney General of the
Ontario Court of Justice that service of Mr. Singh had already been effectuated. Mr.
Singh was actually served in Canada on December 5, 2017, prior to the Court entering its
initial Notice to Plaintiffs. Due to the fact that Mr. Singh is a foreign citizen, and given
the lack of response to the summons from the serving entity at the time, Plaintiffs were
under the mistaken belief that service on Mr. Singh would not be effectuated within a
reasonable time. Plaintiffs further explain that they were under the mistaken belief that
dismissal of Mr. Singh would be without prejudice, given that an Illinois state court
dismissal for want of prosecution is non-prejudicial.
Rule 60(b) permits a court to vacate a judgment, order, or proceeding when a
party brings a motion based on one of six specific grounds:
(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies
relief.
FED. R. CIV. P. 60(b). Whether to grant relief under Rule 60(b) rests with the trial court’s
discretion. See Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845,
848 (7th Cir. 2009).
The applicable subsection here, as invoked by Plaintiffs, is (b)(1), which permits
relief from an order on grounds of “mistake, inadvertence, surprise, or excusable

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neglect.” FED. R. CIV. P. 60(b)(1). Mr. Singh was actually served on December 5, 2017, but
Plaintiffs did not receive notice of this until January 2, 2018 (see Doc. 23-1, p. 1-3). After
receiving such notice, Plaintiffs promptly notified the Court by filing a Rule 60 motion
on January 5, 2018. Granting Plaintiffs’ requested relief would not cause any apparent
prejudice as this case is still in the early stages of litigation. Further, although dismissals
under Rule 41(b) are presumed to be with prejudice, the Court made no mention in the
Notice as to the prejudicial effect of Mr. Singh’s impending dismissal. In considering the
totality of the circumstances, the Court finds that Plaintiffs have made a sufficient
showing of mistake and/or excusable neglect to warrant relief.
Accordingly, the Court GRANTS Plaintiffs’ motion (Doc. 23) and VACATES the
Order entered on December 22, 2017. The Clerk’s Office is DIRECTED to reinstate
Navdeep Singh as a defendant in this action. Plaintiffs shall promptly file the executed
summons.
IT IS SO ORDERED.
DATED: January 9, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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