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
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
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 ...