United States District Court, S.D. Illinois
June 3, 2005.
BABATUNDE OWOSENI, Plaintiff,
CITY OF BELLEVILLE, THE CITY OF BELLEVILLE BOARD OF FIRE AND POLICE COMMISSIONERS, THE CITY OF BELLEVILLE POLICE DEPARTMENT, and MAYOR MARK A. KERN, Defendants.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
MEMORANDUM & ORDER
Plaintiff Babatunde Owosensi filed a two-count pro se
complaint against Defendants City of Belleville, the City of
Belleville Board of Fire and Police Commissioners, the City of
Belleville Police Department, and Mayor Mark A. Kern, alleging
they violated the Fair Credit Reporting Act (FCRA),
15 U.S.C. 1681, et seq., when Defendants allegedly relied on a credit
history report in deciding not to offer Owoseni employment as a
probationary patrol officer with the City of Belleville, and did
not disclose to Owoseni the consumer-reporting agency Defendants
used to obtain his credit history and that he had a right to
obtain a free copy of his credit report. Count One alleged all
Defendants willfully violated the FCRA, while Count Two alleged
all Defendants negligently violated the FCRA.
Defendants moved for summary judgment and the Court granted
Defendants' motion for summary judgment and dismissed with prejudice all claims in
their entirety against all Defendants (Doc. 55). Accordingly,
judgment was entered in Defendants' favor and against Owoseni.
Now before the Court is Owoseni's "Motion to Reconsider Summary
Judgment" (Doc. 57). Defendants responded in opposition at Doc.
58, which Owoseni replied to at Doc. 59. This matter being fully
briefed, for the foregoing reasons, the Court denies Owoseni's
While Owoseni does not cite to any basis for his motion to
reconsider (that is, until his reply to Defendants' response),
the only possible basis for Owoseni's motion for reconsideration
is either FEDERAL RULE OF CIVIL PROCEDURE 59 or 60. However,
pursuant to Rule 59(e), a Rule 59 motion must be brought within
ten days of the entry of judgment, and Owoseni's motion was not.
Therefore, the motion is a Rule 60 motion.
Rule 60(b) permits a court to relieve a party from a final
judgment, order, or proceedings for the following reasons:
. . . (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered
in time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of
an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying
relief from the operation of the judgment. . . .
Granting relief under Rule 60(b) is an "extraordinary remedy and
is granted only in exceptional circumstances." Harold Wash.
Party v. Cook County, Ill. Democratic Party, 984 F.2d 875
(7th Cir. 1993). The Court finds that such exceptional
circumstances are not present in the case at bar. Owoseni contends in his reply to Defendants' response to his
motion to reconsider, that he is entitled to relief under
subsections (1), (3) and (6) of Rule 60(b). However, nowhere in
either his motion or in his reply brief, does Owoseni put forward
any reason justifying relief from this Court's order granting
summary judgment in favor of Defendants under any of Rule 60(b)'s
subsections. Owoseni cites to no mistake, inadvertence, surprise,
or excusable neglect so as to warrant granting his motion under
Rule 60(b)(1). He also does cite to any fraud, misrepresentation,
or other misconduct of an adverse party to warrant granting his
motion under Rule 60(b)(3). And, finally, he does not cite to any
other reason justifying relief from the operation of the judgment
under Rule 60(b)(6). The Seventh Circuit has consistently held
that to obtain relief under Rule 60(b)(6), a party must make a
showing of extraordinary circumstances that would justify such
relief. See, e.g., Lowe v. McGraw-Hill Companies, Inc.,
361 F.3d 335
, 342 (7th Cir. 2004) ("[Because] the first five
subsections [of Rule 60(b)] . . . cover the waterfront[,] [t]he
only work left for [subsection] (6) to do is to allow judgments
to be set aside, without limitation of time, when the
circumstances of its invocation are `extraordinary.'"). Owoseni
does not demonstrate any extraordinary circumstances. Owoseni
appears simply to disagree with this Court's decision and to
desire to reargue the matter. That is not an appropriate basis
for a Rule 60(b) motion. See Russell v. Delco Remy Div. Of Gen.
Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995) (stating that
a Rule 60(b) motion "is not an appropriate vehicle for addressing
simple legal error; otherwise, a party could circumvent the
ordinary time limitation for filing a notice of appeal.").
Because this Court gave full consideration to each of Owoseni's
arguments and Defendants' arguments at the summary judgment
stage, and nothing in Owoseni's motion convinces the Court that
it erred in granting Defendants summary judgment on both of
Owoseni's claims, the Court hereby DENIES Owoseni's Rule 60(b) motion (Doc. 57).
Also before the Court is Owoseni's "Late Notice of Appeal"
(Doc. 60). Therein, Owoseni requests that in the event his motion
to reconsider is denied, he asks that the Court grant his late
notice of appeal. In his late notice of appeal, Owoseni states
that when he filed his motion for reconsideration, he submitted
the wrong caption to the Court as it did not alternatively plead
"Notice of Appeal".*fn1 The Court notes that Owoseni does
not cite to any rule or caselaw in support of his late notice of
appeal. Defendants objected to Owoseni's late notice of appeal at
Doc. 61, to which Owoseni replied at Doc. 62.
FEDERAL RULE OF APPELLATE PROCEDURE 4(a)(1)(A) provides that
a notice of appeal must be filed with the district clerk within
30 days after judgement has been entered. In the case at bar,
judgment was entered on September 28, 2004. Therefore, Owoseni
had until October 28, 2004 to file a notice of appeal, which he
did not do.
The only other avenue for Owoseni's request for a late notice
of appeal is under Rule 4(a)(5)(A). Rule 4(a)(5)(A)(i) and (ii)
provides that a district court may extend the time to file a
notice of appeal if (1) a party so moves no later than 30 days
after the time prescribed by Rule 4(a) expires, and (2) the party
shows excusable neglect or good cause. Defendants object because
Owoseni's late notice of appeal is not a motion for extension of
time. Owoseni replies that the Court should construe his late
notice of appeal as a motion for extension of time. However, the
Court is unable to do so.
The United States Court of Appeals for the Seventh Circuit has
clearly held that a "late notice of appeal which fails to allege excusable neglect or
good cause can no longer be construed as a motion for an
extension of time" to file a notice of appeal. Leonard v.
O'Leary, 788 F.2d 1238, 1240 (7th Cir. 1986). Further, the
Seventh Circuit has stated that the fact that the petitioner is
proceeding pro se does not warrant exception to the rule. Id.
In the case at bar, Owoseni's late notice of appeal does not
allege excusable neglect or good cause. It simply states that
Owoseni made a harmless error. As a result, the Court finds that
Owoseni's late notice does not allege excusable neglect or good
cause so that it can be construed as a motion for an extension of
In the alternative, even if the Court could construe the late
notice of appeal as a motion for an extension of time, the Court
finds that the motion would be denied on the merits under Rule
4(a)(5). In order for this Court to extend Owoseni's appeal
deadline, the Court, as stated previously, would have to find
that Owoseni has demonstrated excusable neglect or good cause.
Defendants argue that Owoseni's submission of the wrong caption
does not amount to excusable neglect, that Owoseni is required to
read every motion before he files it, and if he had done so, he
would have realized his error. This Court agrees.
In Cange v. Stotler and Co., 913 F.2d 1204 (7th Cir. 1990),
the Seventh Circuit found that the district court therein had
abused its discretion when it granted an extension of time to
file a notice of appeal where the petitioner simply miscalculated
the due date. The Seventh Circuit found that excusable neglect
did exist as "[a] simple miscalculation [in the appeal deadline],
rather than a plausible misconstruction of the law or rules, does
not establish excusable neglect." Cange, 913 F.2d at 1212.
Comparably, Owoseni claims he simply mislabeled the caption.
Owoseni does not state he somehow made a mistake in construing
the law or appellate rules. As such, the Court finds that such a simple mistake does not constitute
excusable neglect in this Circuit so as to allow an extension of
the appeal deadline. Accordingly, the Court DENIES Owoseni's
"Late Notice of Appeal" (Doc. 60). This matter REMAINS CLOSED.
IT IS SO ORDERED.