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NARWICK v. WEXLER

November 16, 1995

LISA NARWICK, f/k/a BRATCHER, and ROBERT GRIGUS, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
NORMAN P. WEXLER and MITCHELL H. WEXLER, d/b/a WEXLER & WEXLER, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 I. Rule 60(b) Motion

 In the opinion and order denying class certification, we held that the plaintiffs had failed to show that the class met the numerosity prerequisite of Rule 23(a)(1). We also rejected the plaintiffs' proffered justification for failing to prove the class size, namely, that we had stayed discovery and thereby prevented the plaintiffs from gathering the relevant information. We explained that, according to the express terms of the order staying discovery, discovery was stayed only from January 13, 1995, to March 24, 1995. Slip op. at 6. Accordingly, the plaintiffs had over four months in which to discover information in support of the numerosity prerequisite. Id. We also emphasized that the plaintiffs

 
acknowledged that the discovery stay was no longer in effect in their motion for class certification, which was filed on April 28, 1995, but stated that they had not received responses to their discovery requests from defendant. However, they never filed a motion to compel, nor have they indicated to this court that they have made any informal effort to obtain the responses. In short, notwithstanding forewarning that this issue would arise and ample time to collect the information needed to effectively respond, plaintiffs have chosen to place their full reliance on the Schultz affidavit. Under these circumstances, we decline plaintiffs' implicit request to further delay ruling on the pending motions, so that they may prepare another bite at the proverbial apple.

 Id. at 6-7.

 In their Rule 60(b) motion, the plaintiffs contend that they did not know that the discovery stay was no longer in effect after March 24, 1995. The plaintiffs point out that the discovery stay was ordered in conjunction with a briefing schedule on the defendants' motion for summary judgment; according to the plaintiffs, they believed that the discovery stay would elapse when this court ruled on the summary judgment motion. Pls.' 60(b) Mot. at 3. To prove that they held this belief, the plaintiffs highlight, from their reply brief in support of the motion for class certification, language to the effect that the plaintiffs had been hampered in gathering relevant information because of the discovery stay. Pls.' 60(b) Motion at 4 (quoting Pls.' Reply Br. at 3-4). The plaintiffs conclude that they thus failed to prove numerosity due to "mistake, inadvertence, . . . or excusable neglect," Fed. R. Civ. P. 60(b)(1).

 Rule 60(b)(1) provides that "the court may relieve a party . . . from an . . . order . . . for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect." *fn1" In evaluating a motion for relief under Rule 60(b)(1), we reiterate the "'well-established'" rule that "'Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances.'" Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994) (quoting Harold Washington Party v. Cook County, Ill. Democratic Party, 984 F.2d 875, 879 (7th Cir.), cert. denied, 510 U.S. 825, 126 L. Ed. 2d 54, 114 S. Ct. 86 (1993)) (internal quotation omitted).

 We deny the plaintiffs' motion for relief. First, we find incredulous the plaintiffs' assertion that they did not know the discovery stay ended on March 24, 1995. Initially, we point out that the order granting the discovery stay expressly stated, "Discovery is stayed until March 24, 1995." R. 18 (Minute Order of January 13, 1995). Furthermore, on March 29, just a few days after the expiration of the discovery stay, we directed the plaintiffs to file a motion for class certification, R. 41 (Minute Order of March 29, 1995); discovery was, of course, then available to them for use in preparing their class certification motion.

 Furthermore, even if the plaintiffs actually believed that the discovery stay remained in effect after March 24, they had sufficient time to move this court to lift the stay in order to prepare their motion for class certification. On March 29, we directed the plaintiffs to file the class certification motion by April 28; accordingly, if the plaintiffs actually believed that the stay remained in effect, and if the plaintiffs believed that they required discovery on the numerosity prerequisite, the plaintiffs had a month in which to move this court to lift the stay. Thus, even if the plaintiffs mistakenly believed that the stay remained in effect, they cannot now invoke an "extraordinary remedy" in light of their inexplicable failure to move to lift the purported stay. We deny the Rule 60(b) motion.

 II. Rule 23(d)(4) Motion

 In pertinent part, Rule 23(d) ...


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