United States District Court, N.D. Illinois
November 23, 2004.
Illinois Department of Employment Security.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
On June 7, 2004, I entered an order granting Defendant's Motion
for Summary Judgement, terminating this case. On July 21, 2004,
Plaintiff filed a motion for reconsideration, which I denied on
August 16, 2004. On September 16, 2004, Plaintiff filed a Notice
of Appeal. In response, the Seventh Circuit entered an order
questioning the jurisdiction of Plaintiff's appeal and
instructing Plaintiff to file a memorandum stating why the appeal
should not be dismissed for lack of jurisdiction and advising
Plaintiff that she could also file a motion in this court
requesting an extension of time to file a notice of appeal.
Pursuant to that order, Plaintiff filed the instant motion,
requesting that I extend the time allowed for her to file an
appeal on the basis of excusable neglect. Under Fed.R. App. P.
4(a), the appellant must file the appeal within 30 days after
judgment is entered. In this case, the 30-day window expired on
July 7, 2004.
In her motion, Plaintiff asks that I extend the 30-day period
because she made the mistaken assumption that her earlier filed
motion for reconsideration had tolled the time for her appeal.
Plaintiff argues that her failure to timely file should
constitute excusable neglect because her assumptions on
timeliness were based on my grant of two extensions of time for
her to file a motion for reconsideration. As a general rule, the
excusable neglect exception is narrowly construed and usually
involves cases of estoppel or a reasonable failure to learn of
the entry of judgment. Hardin v. Synthes U.S.A., No. 90 C 2426,
1991 U.S. App. LEXIS at *2 (7th Cir. Oct. 10, 1991).
"Ignorance of the law or unfamiliarity with the federal rules
almost invariably falls short of excusable neglect." U.S. v.
Tait, 963 F.2d 375, 1992 U.S. App. LEXIS 11752 at *6 (7th
Plaintiff claims that I erred by granting her an extension of
time to file her motion for reconsideration and, thereby, created
grounds for her reliance. Plaintiff's argument, however, is based
on an incorrect premise. It was well within my jurisdiction to
allow Plaintiff to file a motion to reconsider, under Rule 60(b),
more than 10 days after judgment had been entered. Hope v.
U.S., 43 F.3d 1140, 1143 (7th Cir. 1994). Courts have
allowed motions challenging the merits of a district court's
opinion to be reviewed either under Rule 59(e) or Rule 60(b).
Starr v. Levin, No. 02 C 2258, 2002 U.S. Dist. LEXIS 22834 at
*2 (N.D. Ill. Nov. 25, 2002) (citing GHSC Assocs. Ltd. P'ship v.
Wal-Mart Stores, 29 Fed. Appx. 382, 384 (7th Cir. 2002)).
Although a litigant may pursue review under either rule, they are
procedurally distinct. A key difference between the two rules has
to do with timing. A Rule 59(e) motion must be filed within 10
days of the entry of judgment and, when timely filed, tolls the
time for appeal. A Rule 60(b) motion, on the other hand, may be
filed within a "reasonable" amount of time and does not toll the
time for appeal. When a motion is filed more than 10 days after
the entry of judgment, regardless of designation, the motion
automatically becomes a Rule 60(b) motion. Talano v.
Northwestern Med. Faculty Found., Inc. 273 F.3d 757, 762
(7th Cir. 2001) (quotations omitted).
Plaintiff asked for her first extension of time to file her
motion for reconsideration on June 22, 2004, fifteen days after
entry of the final judgment. Plaintiff made no designation as to
which type of motion she was filing and made no representations
about her plans for appeal. I granted that extension and
Plaintiff ultimately submitted her motion for reconsideration on
July 21, 2004. Because every filing made by Plaintiff in regards
to her motion was submitted after the 10-day deadline, there can
be no question that her unspecified motion fell under Rule 60(b)
and did not toll the time for her appeal.
Despite Plaintiff's assertions to the contrary, I was under no
obligation to educate her on the ramifications of filing her
motion after the 10-day deadline for a Rule 59(e) motion had
expired. As the courts in this circuit have clearly and
repeatedly stated, "it is not the district court's duty, nor [the
opposing party's] duty, to sort through postjudgment motions and
advise the moving party whether his appeal clock [is] ticking,"
Hope, 43 F.3d. at 1143-44 (footnote omitted). It was
Plaintiff's responsibility to familiarize herself with the
procedural rules of this court and any failure to do so was done
at her own peril. I make no dispensation for this pro se
Plaintiff's lack of prior experience with the federal courts
because, as I have stated before, Plaintiff is an attorney
licensed to practice in Illinois. Had Plaintiff acted in a
reasonably diligent manner, she could and should have, given her
prior training and experience, determined the consequences of
filing her motion after the 10-day period for a Rule 59(e) motion
had expired. Plaintiff's failure to familiarize herself with the
procedures of this court does not rise to the level of excusable
neglect and does not create grounds for an extension of time to
appeal. See Tait at *6.
Plaintiff's Motion to Extend the Time to File Notice of Appeal
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