United States District Court, N.D. Illinois, Eastern Division
November 3, 2005.
DENNIS MOORE, Plaintiff,
CINGULAR WIRELESS, Defendant.
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff's Federal Rule of
Civil Procedure ("Rule") 60 motion for reconsideration. Dennis
Moore ("Plaintiff") asserts that the Court should reconsider its
September 14, 2004 ruling which granted Cingular Wireless's
("Cingular" or "Defendant") motion for summary judgment.
Plaintiff claims that because his attorney was unaware of the
existence of Defendant's Rule 56.1 statement of facts, his
failure to submit his own Rule 56 statement of facts should be
considered as excusable neglect. He asks this Court to now accept
his statement of facts and reconsider its September 2004
judgment. For the reasons set forth below, the motion is denied.
Moore filed a complaint against Cingular, alleging racial
discrimination and retaliation in violation of Title VII. On
December 18, 2003, with its motion for summary judgment, Cingular
submitted a memorandum of law in support thereof and a statement
of material facts with supporting materials as contemplated by LR
56.1(a)(3). Almost six months later, Moore submitted a response
memorandum of law and an affidavit accompanied by exhibits. Moore
did not respond to Cingular's statement of material facts as
required by LR 56.1(b)(3)(A) nor did he submit a statement of
additional facts as allowed by LR 56.1(b)(3)(B). In July 2004, Cingular
filed its reply in which it noted Moore's failure to comply with
LR 56.1. Almost one month later, on August 9, 2004, Moore
submitted "Plaintiff's Response to Defendant's Statement of
Material Facts As To Which It Contends There Is No Genuine
Issue." This Court denied Moore leave to file this document;
therefore, all material facts set forth in Cingular's LR
56.1(a)(3) statement were deemed admitted. See LR
56.1(b)(3)(B); see also Waldridge v. American Hoechst Corp.,
24 F.3d 918, 922 (7th Cir. 1994) (upholding strict enforcement of LR
56.1 where non-movant failed to submit factual statement in form
called for by rule, thus conceding the movant's version of the
On September 14, 2004, this Court granted Defendant's motion
for summary judgment. Plaintiff then sought relief of judgment,
contending that his attorney, Maurice Salem, was negligent in not
submitting the requisite LR 56.1 statement of facts. On September
21, 2004, Salem withdrew from representing Moore. Over the next
several months, the Court appointed approximately four attorneys
to represent Plaintiff. Moore contends that because Salem was
unaware that Defendant's Rule 56.1 statement of facts existed
when he responded to Defendant's motion, this Court should find
excusable neglect and reconsider its September 14, 2004 judgment.
Motions for reconsideration serve a limited function to correct
manifest errors of law or fact or to present newly discovered
evidence or an intervening change of law. Cosgrove v.
Bartolotta, 150 F. 3d 729, 732 (7th Cir. 1998). Rule 60(b)
allows a court to reconsider a final judgment on the grounds of
mistake, inadvertence, surprise or excusable neglect; newly
discovered evidence, fraud, void judgments, judgments satisfied,
or "any other reason justifying relief." Fed.R.Civ.P. 60(b). Under this rule, relief is "an extraordinary remedy and is
granted only in exceptional circumstances." McCormick v. City of
Chicago, 230 F.3d 319, 327 (7th Cir. 2000). Reconsideration is
appropriate only when the facts or law on which the decision was
based have changed or "the [c]ourt has patently misunderstood a
party or has made a decision outside the adversarial issues
presented to the [c]ourt by the parties or has made a an error
not of reasoning but of apprehension." Bank of Waunakee v.
Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.
1990). A motion for reconsideration should not be used as an
opportunity for parties to rehash old arguments or raise new
arguments that could have previously been offered. Caisse
Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264,
1270 (7th Cir. 1996); Publishers Res., Inc. v. Walker-Davis
Publ'ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985) (noting
reconsideration not appropriate to introduce arguments or
evidence that could have been previously heard.) Furthermore, the
Seventh Circuit has consistently determined that the non-movant
risks concession of movant's version of the facts if the
non-movant fails to strictly adhere to the federal rules'
directives on what must be included in the pleadings. See, e.g.
Hedrich v. Bd. Regents, 274 F.3d 1174, 1177-78 (7th Cir. 2001).
Here, Plaintiff attempts to rehash and introduce summary
judgment arguments. But because our function here is to only
determine whether there is justification under Rule 60(b) to
reconsider the prior judgment, we will not review Plaintiff's
summary judgment arguments. In his motion, Plaintiff claims that
because Salem was allegedly unaware of Defendant's statement of
facts, his failure to comply with Rule 56 should be considered
excusable. Plaintiff has not presented newly discovered evidence
or law, nor has this Court found any errors of law or fact to
justify reconsideration. Plaintiff has not shown that the Court
has misunderstood a party, made an improper decision or that
mistake, inadvertence, or fraud was involved in the summary
judgment ruling. Even so, Moore contends that this Court granted Defendant's
motion for summary judgment because he did not submit a Rule 56.1
statement of facts. In its September 2004 ruling, this Court
commented that the absence of Plaintiff's statement of facts did
not bolster his case. The Court, however, did not grant
Defendant's motion simply because Plaintiff failed to comply with
LR 56. Rather, Defendant's motion was granted because Moore
failed to establish several of the elements of a prima facie case
in both his employment discrimination and retaliation claims.
Specifically, Moore failed to show he suffered an adverse
employment action, that he was similarly situated and was treated
less favorably than others outside his race, that he was
qualified for the position, and that causation pretext were
present. Despite the Court's reasoning, Plaintiff believed
Salem's failure to submit a Rule 56 statement of facts was fatal
and that failure should be considered as excusable neglect,
thereby compelling this Court's reconsideration. Plaintiff
references a Supreme Court case interpreting excusable neglect in
a bankruptcy context. Pioneer Inv. Serv. v. Brunswick Assoc.,
507 U.S. 380 (1993). Plaintiff contends that to determine whether
neglect is excusable, a court should consider: (1) the danger of
prejudice to the other party; (2) the length of delay and its
impact on the judicial proceeding; (3) the reason for delay or
whether it was in movant's control; and (4) whether the movant
acted in good faith. Id. at 395. Plaintiff conclusively, without
support, claims that because there will be no prejudice to
Defendant, Plaintiff was persistent in requesting the opportunity
to file a response, the delay was not in his control, and
Plaintiff acted in good faith, this Court should find excusable
neglect. (Pl's Mem. Supp. Mot. Recon. at 4-5) We disagree.
Applying this test, we believe Defendant will, in fact, be
prejudiced in having to further utilize resources to defend an
action already determined on the merits; the length of the delay
due to Plaintiff's extensions and other motions brings this
motion almost a year after the final judgment; and the reason for the failure to file the statement of facts was
wholly in Plaintiff's control, as he personally received the
documents from Defendant and presented them to his attorney.
Furthermore, Plaintiff ultimately possessed the duty to oversee
the progress and effectiveness of his counsel. These factors
alone prevent us from finding that Plaintiff's delay was
excusable. Moreover, as the Seventh Circuit has concluded, such
"communication breakdowns" between attorney and client, as seen
exhibited by Moore and Salem, are not a sufficient basis to
establish excusable neglect. Lomas Co. v. Wiseley,
884 F.2d 965, 967 (7th Cir. 1989).
Moore further contends that because of his counsel's error,
reconsideration is appropriate. "Attorney carelessness can
constitute excusable neglect" under Rule 60(b)(1). Castro v. Bd.
of Educ., 214 F.3d 932, 934 (7th Cir. 2000) (referring to
Federal Election Comm'n v. Al Salvi for Senate Comm.,
205 F.3d 1015, 1020 (7th Cir. 2000) (citing Pioneer Inv. Servs. Co. v.
Brunswick Assoc., 507 U.S. 380, (1993)). However, "attorney
inattentiveness to litigation is not excusable, no matter what
the resulting consequences the attorney's somnolent behavior may
have on a litigant." Easley v. Kirmsee, 382 F.3d 693, 698 (7th
Cir. 2004) (holding that a failure to timely respond to the
summary judgment motion can "only be classified as inexcusable
inattentiveness or neglect, rather than excusable carelessness.")
A court will not excuse such inattentiveness and neglect. Id.
Salem is a licensed attorney permitted to practice law in
federal court. He should be well versed in the filing
requirements that are mandated under Federal Rule of Civil
Procedure 56. Furthermore, he was adequately notified of the
existence of the statement of facts from the numerous references
to Defendant's Rule 56.1 statement of facts in Defendant's
memorandum in support of its motion. This misstep of choosing not
to acknowledge the existence of the requisite documents, should
be categorized as inattentiveness, rather than carelessness, to
the federal filing requirements and the information set forth in Defendant's memorandum of law.
Therefore, Salem's neglect will not be consider as excusable.
Moreover, an individual has an affirmative duty to "`vigilantly
oversee' and ultimately bear responsibility for, their attorneys'
actions or failures." Modrowski v. Mote, 322 F.3d 965, 968 (7th
Cir. 2003) (citing Johnson v. McCaughtry, 265 F.3d 559, 566
(7thh Cir. 2001). It was Moore's duty to ensure that when he
began to work with Salem, that he turn over all pertinent
documents to him and that he be an active member in overseeing
the case. Moore failed to vigilantly oversee his attorney's
progress and though he will not prevail in this motion to
reconsider, as the Seventh Circuit has held, he may have a viable
remedy against his counsel, but that cause of action should not
be transferred or thrust upon the district court and its
defendants. Tango Music, L.L.C. v. Deadquick Music, Inc.,
348 F.3d 244, 247-48 (7th Cir. 2003). We believe that Plaintiff and
his counsel inexcusably failed to adhere to LR56 and,
accordingly, this Court will not reconsider its September 14,
For the reasons set forth above, Plaintiff's motion to
reconsider this courts September 14, 2004 ruling is denied. This
is a final and appealable order.
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