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Alexander v. Casino Queen Hotel and Casino
July 7, 2008
STACY ALEXANDER, KATHIE MILLER AND KIM ROGERS, PLAINTIFFS,
CASINO QUEEN HOTEL AND CASINO, DEFENDANT.
The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is plaintiff's motion for reconsideration and motion for extension of time (Doc. 23), to which defendants have not filed a response. On May 28, 2008, Magistrate Judge Philip M. Frazier entered, sua sponte, aReport and Recommendation that this Court dismiss plaintiff's case with prejudice for want of prosecution (Doc. 20).*fn1 On June 20, 2008, this Court adopted Judge Frazier's Report and Recommendation and dismissed plaintiff's case with prejudice for want of prosecution (Doc. 21). Plaintiffs now seek reconsideration of this Court's Order dismissing their case (Doc. 23) on the grounds that their attorney "grossly misrepresented" them.*fn2 In addition, plaintiffs seek an extension of time for a period of thirty (30) days to find new counsel.
Under Rule 60(b) of the Federal Rules of Civil Procedure, this Court may relieve plaintiffs from the final judgment in this case for, inter alia, "mistake, inadvertence, surprise, or excusable neglect" or for "any other reason that justifies relief." Fed. R. Civ. Pro. 60(b)(1). Rule 60(b)(1) relief is an extraordinary remedy and is granted only in exceptional circumstances. McCormick v. City of Chi., 230 F.3d 319, 327 (7th Cir. 2000). Attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences on the litigant and regardless of the attorney's degree of culpability. Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004). Whether attorney neglect is excusable is an equitable determination, which requires taking account of all relevant circumstances surrounding the omission, including the danger of prejudice to the parties, the length of the delay and its potential impact on judicial proceedings, the reason for the dely, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. See Pioneer Inv. Serv. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993).
Plaintiffs offer no explanation as to why their attorney failed altogether either to participate in the May 20, 2008 discovery conference or to file a response to the Court's May 21 Show Cause Order.*fn3 Without some explanation for these failures, which followed repeated failures throughout the course of this litigation, see fn.1, the Court cannot excuse plaintiffs' attorney's inattentiveness. Upon review of the record, the Court DENIES plaintiff's motion for reconsideration (Doc. 23). The Court FURTHER DENIES plaintiff's motion for extension of time (Doc. 23) to seek new counsel as moot.*fn4
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