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May 17, 1984


The opinion of the court was delivered by: Leighton, District Judge.


Plaintiffs bring this action, pursuant to 42 U.S.C. § 1983, to have declared unconstitutional the practice of the Chicago Board of Education allowing military recruiters access to its schools while denying the same privilege to plaintiffs who are anti-war activists. The cause is before the Court on defendants' motion to vacate an order of January 20, 1984 granting summary judgment in favor of plaintiffs, and for leave to file their answer to plaintiffs' summary judgment motion. For the following reasons, the motion is denied.


Plaintiffs are the Clergy and Laity Concerned, an organization opposed to war that has developed programs, presentations and literature regarding legal alternatives to the draft and military service; Father Andrew Skotnicki, a draft counsellor associated with the Clergy and Laity Concerned; Brian Kracher, a student at Chicago's Morgan Park High School; Stephen Chevrier, a student at Chicago's Kenwood Academy; and David and Eloise Chevrier, parents of plaintiff Stephen Chevrier. Defendants are the Board of Education of the City of Chicago and General Superintendent of Schools, Dr. Ruth B. Love.

This suit was filed on April 19, 1983; defendants answered on May 23, 1983; and as set forth in the Court's January 20, 1984 Memorandum, briefing was scheduled on a motion for summary judgment to be filed by plaintiffs. Adhering to the schedule, plaintiffs filed their motion, memorandum of law, supporting affidavits and exhibits. Defendants did not answer, nor did they seek an extension of time. Based on the record as of January 20, 1984, the Court determined that there was no issue of material fact and granted summary judgment in favor of plaintiffs. It is this judgment that defendants now seek to vacate.

Defendants' one paragraph motion merely states that they are asking the Court to set aside the judgment and allow them to file their answer to plaintiffs' summary judgment motion. In support they attach the affidavit of Edward C. Peterson, Esq., one of their attorneys, which sets forth the reasons he failed to contest the summary judgment motion. Although the motion does not specify under what authority it is predicated, a review of it and the attached affidavit clearly indicates that defendants are seeking to vacate the judgment under Rule 60(b), Fed.R.Civ.P. After carefully reviewing the record, defendants' motion and attached affidavit, the Court concludes that reasons given for their failure to contest plaintiffs' summary judgment motion are insufficient as a matter of law to justify setting aside the judgment.


Relief from a judgment under Rule 60(b) is extraordinary and will only be granted "upon a showing of exceptional circumstances." DiVito v. Fidelity and Deposit Company of Maryland, 361 F.2d 936, 938 (7th Cir. 1966); Ben Sager Chemicals International, Inc. v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977); Flett v. W.A. Alexander & Co., 302 F.2d 321, 323 (7th Cir. 1962). In order to qualify for relief under the rule, a "movant must demonstrate that he has a meritorious defense and that arguably one of the four conditions for relief applies — mistake, inadvertence, surprise or excusable neglect." Ben Sager Chemicals International, Inc. v. E. Targosz & Co., supra at 809; See Universal Films Exchange v. Lust, 479 F.2d 573, 576 (4th Cir. 1973); Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970). Thus, the test to determine whether this Court will vacate the judgment is two pronged: (1) whether the failure of defendants' attorneys to contest the summary judgment motion was due to mistake, inadvertence, surprise or excusable neglect; and (2) if so, whether defendants can show a meritorious defense to the summary judgment which has been granted in plaintiffs' favor.

The affidavit of attorney Edward Peterson simply states that he was one of the attorneys having responsibilities for defending this suit; because he was responsible for answering the summary judgment motion, no other attorney handling this case worked on the answer; and, besides other pressing matters in the office, the death of his father and the settling of his fathers affairs kept him from complying with the briefing schedule with which he was aware. Although the Court is sympathetic with the personal problems faced by defendants' attorney, his reasons for failing to contest the motion for summary judgment do not entitle defendants to relief under Rule 60(b).

Defendants contend that the failure of their lawyer to contest the motion was "excusable neglect." Excusable neglect is generally understood to be that course of action which a reasonably prudent person would take under the same or similar circumstances. See e.g. U.S. for the Use and Benefit of Davison v. York Electrical Construction Co., 25 F.R.D. 478, 479 (D.N. D. 1960). Obviously, however, the fact that an attorney has other pressing matters to handle, is faced with personal problems and elects or fails to answer a motion for summary judgment, is not excusable neglect. See e.g., Pinero Schroeder v. Federal National Mortgage Ass'n., 574 F.2d 1117, 1118 (5th Cir. 1978); Maghan v. Young, 154 F.2d 13 (D.C.Cir. 1946); Greene v. Pyatt, 78 F.R.D. 362, 363 (E.D.N.Y. 1978). When encountered with problems that apparently caused his failure to contest plaintiffs' motion, the reasonably prudent action which defendants' counsel should have taken under the circumstances, would have been to file a routine request for an extension of time. This Court was never informed of the fact that defendants' attorney was not able to prepare an answer to plaintiffs' motion.

Further, the affidavit states that attorney Peterson was the only one of defendants' several attorneys who was handling this matter; defendants do not show why another of their several attorneys could not have answered the summary judgment motion or, at the very least, why another of their attorneys did not seek an extension of time for defendants to answer. See Flett v. W.A. Alexander Co., 302 F.2d 321, 323 (7th Cir. 1962) (no showing of why second attorney could not have handled case). Therefore, the affidavit in support of defendants' motion to vacate does not establish that the failure to answer the motion was due to excusable neglect. In fact, the conduct of defendants' attorney falls far short of the exceptional circumstances required to vacate a judgment. For these reasons, the motion to vacate should be denied.


But assuming, arguendo, that defendants have made a showing of excusable neglect, their proposed answer to plaintiffs' motion for summary judgment does not interpose a meritorious defense. Their opposing memorandum and supporting material do not contradict or raise any issue of fact or assert any principle of law which would require this Court to deny plaintiffs' motion.*fn1 It appears that the undisputed facts are as follows.

During the period alleged in the complaint, defendants have maintained a policy that allows representatives of the armed forces access to the Chicago public high schools; military recruiters can disseminate literature, post advertisement on school grounds and in school papers, conduct workshops, counsel students as to careers in the armed services, and administer vocational aptitude tests. Father Skotnicki, during the same period, repeatedly contacted employees of the Chicago Board of Education to request permission on behalf of himself and the Clergy and Laity Concerned for access to the public high schools for the purpose of providing students with information and counselling regarding draft registration, military service, conscientious objection and legal alternatives to the ...

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