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ALSTON v. DEUTSCH BORSE

United States District Court, N.D. Illinois


January 22, 2004.

BRIAN ALSTON, Plaintiff
v.
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 On November 4, 2003, the Seventh Circuit issued an unpublished order affirming the dismissal.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 Page 2 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 ยง 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 Page 3 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), Page 4 plaintiff's present motion is untimely and will be denied on that ground.

  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. Page 5

  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 [45] is denied.

20040122

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