The opinion of the court was delivered by: David R Herndon Chief Judge United States District Court
Because it was unconvinced that it had subject matter over this case, either pursuant to federal question or diversity jurisdiction, on October 17, 2008, the Court entered an order (Doc. 42) dismissing Plaintiffs' Complaint without prejudice, allowing them until November 21, 2008 to file an Amended Complaint. Because Plaintiffs were proceeding pro se, the Court mailed a hard copy of this order to the mailing address provided by Plaintiffs in their Complaint (Doc. 2). Noting that Plaintiffs had failed to timely file an Amended Complaint, the Court entered a further order on March 5, 2009, dismissing the case without prejudice (Doc. 49). Again, a hard copy of this order was mailed to Plaintiffs at their mailing address, as reflected by the docket sheet.
Now before the Court is Plaintiffs' Request for Hearing & Motion to Vacate the Court's March 5, 2009 Order Dismissing Case (Doc. 50), filed by Plaintiffs on March 8, 2010. Defendants have timely responded to Plaintiffs' Motion (Doc. 51). Although Plaintiffs request a hearing, the Court does not find one will be necessary for it to properly rule upon their Motion. Thus, the Court will now turn to the issues presented therefrom.
In support of their Motion, Plaintiffs assert that the dismissal of their Complaint was wrongful (Doc. 50, ¶ 2). They claim to have pending motions yet unheard (Id. at ¶ 1). Plaintiffs also believe they have a constitutional right to counsel (Id. at ¶ 3). Without counsel, Plaintiffs claim, they are hindered from obtaining justice or perfecting their Complaint (Id. at ¶¶ 6-8 & 12). Lastly, and perhaps most crucial to their Motion, Plaintiffs assert that they did not receive proper notice of the Court's previous dismissal order (Id. at ¶ 10) and that they "just discovered at the end of last week the complaint against the Defendants has been dismissed" (Id. at ¶ 9).
Plaintiffs do not cite any legal authority or rule that permits them to bring their Motion to Vacate the Court's Order, however, as Defendants proffer, the Court will construe Plaintiffs Motion as made pursuant to FEDERAL RULE OF CIVIL PROCEDURE 60(b).*fn1 Essentially, "'Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances.'" Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005)(quoting Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 628 (7th Cir. 1997)). Rule 60(b) allows a party to seek relief from a final judgment, order, or other proceeding for one of the following six reasons as set forth in the provision:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Rule 60(c)(1) requires that parties filing motions pursuant to Rule 60(b) do so "within a reasonable time." FED.R.CIV.P.60(c). However, a Rule 60(b) motion that is made regarding subsections (1) through (3) (as listed above), must be made "no more than a year after the entry of the judgment or order or date of the proceeding" from which that party seeks relief. Plaintiffs' Motion, as Defendants suggest, seems best construed as arguing under Rule 60(b)(1) that either the Court dismissed Plaintiffs' Complaint due to a ...