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Aleman v. Dart

July 9, 2010

ALEMAN
v.
DART, ET AL.



Name of Assigned Judge or Magistrate Judge Robert M. Dow, Jr. Sitting Judge if Other than Assigned Judge

DOCKET ENTRY TEXT

For the reasons stated below, Plaintiff' s motion for reconsideration [60] is respectfully denied.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

I. Background

On February 9, 2010, the Court entered a memorandum opinion and order [57] that, inter alia, dismissed the claims against Defendants Jessie Anderson, George Turner, Julian Salazar, Elvis Slaughter, Antoinette Hines, and Mae Williams on statute of limitations grounds. Those individuals were not named as Defendants until after the statute of limitations on Plaintiff' s Section 1983 claim expired. The Court concluded that Plaintiff was not entitled to equitable tolling because Plaintiff failed to allege any facts indicating that he exercised reasonable diligence in attempting to identify the guards and medical personnel between the time he learned of his injury (no later than January 2007) and the time that he filed his initial complaint 22 months later (in November 2008) -- just two months before the limitations period expired.

At a status hearing held on February 23, 2010, Plaintiff' s counsel indicated that she wished to file a motion for reconsideration of the Court' s February 9 decision and made an oral motion for an extension of time to file such a motion. At that time, the Court expressed uncertainty as to whether it could grant an extension of time to file a motion for reconsideration. Tr. at 4 (stating that "I don' t know that I can" grant a motion for extension of time to file a Rule 59(e) motion). Counsel for Defendants responded, "[i]t' s your discretion." Id. Based on that representation, the Court granted the motion. Id.; see [59]. Plaintiff filed a motion to reconsider [60] on March 29, 2010 -- outside the 28 days permitted by the Rules. See Fed. R. Civ. P. 59(e).

II. Analysis

A. Whether Rule 59 or Rule 60 Governs Plaintiff's Motion

Rule 6(b)(2) bars courts from extending the time within which a party may move to alter or amend a judgment under Rule 59(e). The Seventh Circuit has held that when a motion to alter or amend a judgment under Rule 59(e) is not timely filed, it "automatically becomes a Rule 60(b) motion." Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742-43 (7th Cir. 2009). Which Rule applies is relevant because, "[a]lthough both Rules 59(e) and 60(b) have similar goals of erasing the finality of a judgment and permitting further proceedings, Rule 59(e) generally requires a lower threshold of proof than does Rule 60(b)." Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1121 n.3 (7th Cir. 2001).

Because Plaintiff' s motion to reconsider is untimely under Rule 59, the Court must treat it as a Rule 60 motion unless the "unique circumstances"doctrine applies. The "unique circumstances" doctrine excuses a late filing where the party "has received specific assurance by a judicial officer that [the] act has been properly done." Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989); see also Robinson v. City of Harvey, 2003 WL 21696191 (N.D. Ill. July 21, 2003); Spencer v. Dawson, 2007 WL 2892640 (N.D. Ill. Sept. 28, 2007). The Seventh Circuit has "taken a narrow view of the Osterneck rule,"holding that "[m]erely entering a minute order that apparently extends the time for filing a motion under Fed. R. Civ. P. 59, for example, is not enough to count as a ' specific assurance'from the court." Properties Unlimited, Inc. Realtors v. Cendant Mobility Services, 384 F.3d 917, 921 (7th Cir. 2004). The Seventh Circuit also has held that "it cannot be enough if the district court announces that it is giving the parties more time than the rules permit, because the rules then would impose no limits on the court' s discretion." Id. at 921-22. Rather, in this circuit, "the ' unique circumstances' exception is available only when there is a genuine ambiguity in the rules to begin with, and the court resolves that ambiguity in the direction of permitting additional time to appeal." Id. at 922.

Here, the Court finds no basis for applying the "unique circumstances" doctrine. First, there is no ambiguity in the rules. Moreover, there was no "act of affirmative representation by a judicial officer." Green v. Bisby, 869 F.2d 1070, 1072 (7th Cir. 1989). Rather, the motion for extension of time was granted only after counsel for Defendants assured the Court that such an extension was permitted in the exercise of its discretion and counsel for Plaintiff did not correct that assurance. See Robinson v. City of Harvey, 2003 WL 21696191 (N.D. Ill. July 21, 2003) (finding that the unique circumstances doctrine did not apply where party represented to the court orally that it could extend time under Rule 59). However, the Court hastens to add that, as explained below, the confusion over the timing of Plaintiff' s motion for reconsideration ultimately has no effect on the disposition of the motion, because even if Rule 59(e) did govern Plaintiff' s request for reconsideration,

Plaintiff' s motion would be denied.

B. Plaintiff Fails to Present New Evidence for Purposes of Either ...


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