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Fitzpatrick v. Allen

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


August 23, 2006

DAVID J. FITZPATRICK, ET AL., PLAINTIFFS,
v.
KENNETH J. ALLEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

In their most recent submission in support of their effort to vacate this Court's dismissal order entered July 25, 2006 (the "Order"), plaintiffs have filed a memorandum captioned "Plaintiff's [sic] Supplemental Brief in Support of a Stay in This Action." That filing reasserts plaintiffs' concern that in the event of a dismissal rather than a stay of this action (either is permissible under the Supreme Court's teaching in Wilton v. Seven Falls Co., 515 U.S. 277 (1995)), plaintiffs might be barred from asserting their claimed rights if the previously-filed Indiana litigation between the parties were not finally resolved before June 9, 2009.*fn1

That concern appears to be greatly exaggerated in light of what the parties have disclosed regarding the status of the Indiana litigation. But to give plaintiffs the benefit of a doubt to which they have at best a dubious claim to be entitled, this Court hereby amends the Order to provide that the dismissal of this action is without prejudice to its potential reinstatement by a timely motion that may be filed on or shortly before June 8, 2009 if the Indiana litigation has not then come to a final conclusion.

That said, this Court is constrained to apprise counsel of the possibility that the "without prejudice" amendment just ordered here may deprive the dismissal of final-order status. In that respect, see, e.g., last week's opinion in Kaba v. Stepp, No. 05-3531, 2006 WL 2358002, at *1 (7th Cir. Aug. 16) and cases cited there.


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