United States District Court, N.D. Illinois
January 22, 2004.
BRIAN ALSTON, Plaintiff
DEUTSCH BORSE, AG and DEUTSCH BOSE SYSTEMS, INC., Defendants
The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
After repeated failures and delays on the part of plaintiff
regarding responding to written discovery, appearing for his own
deposition, appearing to take the deposition of a defendant witness, and
appearing for court hearings, the sanction of dismissal was imposed.
Although defendants' motion for dismissal was presented in court on
November 21, 2002, judgment as to the dismissal was not entered on the
docket until December 1, 2002. On November 4, 2003, the Seventh Circuit
issued an unpublished order affirming the dismissal. Alston v.
Deutsch Borse, AG, 80 Fed. Appx. 517, 2003 WL 22535210 (7th Cir.
Nov. 4, 2003). On December 1, 2003, plaintiff filed his Rule 60(b)
motion to vacate the judgment, primarily reasserting the arguments he
raised on appeal and adding a contention regarding
an alleged misrepresentation that defendants had made in support of
the motion to dismiss that had been granted. The motion was presented on
December 16, 2003. Plaintiff denominates his motion as being pursuant to
subsections (I), (3), and (6) of Fed.R.Civ.P. 60(b).
Motions under Rule 60(b)(1) and (3) must be "made" both (a) "not more
than one year after the judgment . . . entered" and (b) "within a
reasonable time." Fed.R.Civ.P. 60(b). Motions under Rule 60(b)(6) have
no specified maximum time limit, but must be made "within a reasonable
time." Id. The parties argue over whether plaintiff's present
motion was brought within one year from the November 27, 2002 ruling
granting the motion. That dispute starts from a false premise. The
one-year time period is measured from the December 1, 2002 entry of
judgment, not the November 21, 2002 ruling itself. See Marquip,
Inc. v. Fosber America, Inc., 198 F.3d 1363, 1369 (Fed. Cir. 1999);
Ceqlarek v. John Crane, Inc., 2000 WL 1745183 *2 (N.D. Ill.
Nov. 27, 2000); Charles Alan Wright, Arthur R. Miller, & Mary Kay
Kane, Federal Practice & Procedure § 2866 at 390 (2d
ed. 1995). The motion is "made" when filed. See Berwick Grain Co. v.
Illinois Department of Agriculture, 189 F.3d 556, 560 (7th Cir.
1999); Young v. R.J. Reynolds Tobacco Co., 1999 WL 1144830 *1
(N.D. Ill. Dec. 9, 1999). Since judgment was entered on December 1,
2002 and plaintiff filed his rule 60(b) motion on December 1, 2003, he
made the motion within one year, satisfying that part of the
timeliness requirement for a Rule 60(b)(1) or Rule 60(b)(3) motion.
That does not end the inquiry regarding timeliness; the motion still
must be made within a reasonable time. Here, plaintiff does not make any
arguments that were not available to him at the time the motion to
dismiss was presented. The alleged misrepresentation by counsel concerns
facts known to plaintiff (through counsel) and the purportedly false
facts were expressly stated in defendants' written motion to dismiss. At
the time the motion was presented, plaintiff's primary attorney was on
vacation and instead sent an attorney who had no familiarity with the
case. The primary attorney still could have advised the stand-in attorney
of the facts of the case. But even assuming the present factual
contention could not have been raised prior to the entry of judgment,
within 10 court days after December I, 2002 plaintiff could have
presented additional facts in a Fed.R.Civ.P. 59(e) motion to vacate
the judgment. And even after the 10-day period for a Rule 59(e) motion,
plaintiff could have brought a Rule 60(b) motion at any time, even while
the appeal was pending. Waiting one year to bring the motion was not a
reasonable time. Since bringing the motion within a reasonable time is a
requirement under all subsections of Rule 60(b),
plaintiff's present motion is untimely and will be denied on that
Alternatively, even if the merits of the present motion were to be
considered, it would be denied. The Seventh Circuit's affirmance recites
the repeated delays and failures to appear that were the basis for
granting the motion to dismiss. A listing of that conduct need not be
repeated here. The only fact that plaintiff questions in his present
motion is who was responsible for cancelling plaintiff's October 10, 2002
deposition of Carlos Reyes. Defendants represented in their motion to
dismiss that plaintiff cancelled the deposition of Reyes. Plaintiff now
contends, as supported by his counsel's affidavit, that defendants
cancelled the Reyes deposition after defendants moved the deposition of
plaintiff from October 9 to October 10. That is not a material fact.
Plaintiff desired to depose Reyes. Plaintiff's failure to take that
deposition, even if due to plaintiff's fault, would not be (and was not)
a basis for dismissing the case. At most, it would have resulted in
plaintiff not being permitted to take that deposition. Instead, the
dismissal was based on plaintiff's failure to cooperate in providing
discovery to defendants. Even if the merits of the Rule 60(b) motion
could be considered, no basis is stated for granting relief.
In defendants' answer to the Rule 60(b) motion, they raise the
possibility of Rule 11 sanctions. That request is not considered because
any motion for sanctions under Rule 11 must be raised in a separate
motion. See Fed.R.Civ.P. 11(c)(1)(A).
IT IS THEREFORE ORDERED that plaintiff's motion to vacate judgment 
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