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Lavite v. Cook

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


July 23, 2010

GARY A. LAVITE, PLAINTIFF,
v.
JUDGE COOK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's motion to reconsider (Doc. 9). On June 22, 2010, this Court issued an Order dismissing Plaintiff's complaint without prejudice to await the outcome of a parallel proceeding pending in state court. Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817 (1976). In the instant motion, Plaintiff seeks an order from this Court staying - rather than dismissing - his federal action.

Technically, a "Motion to Reconsider" does not exist under the Federal Rules of Civil Procedure. The Seventh Circuit has held, however, that a motion challenging the merits of a district court order will automatically be considered as having been filed pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). When, as here, the motion is filed within 28 days of the entry of judgment, whether the motion is analyzed under Rule 59(e) or Rule 60(b) depends upon the substance of the motion, not on the timing or label affixed to it. Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006). When the substance and the label of the post-judgment motion are not in accord, district courts are directed to evaluate it "based on the reasons expressed by the movant." Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (quoting Jennings v. Rivers, 394 F.3d 850, 855 (10th Cir. 2005)). In this case, Plaintiff argues that the Court erred as a matter of law in dismissing, rather than staying, his case.

A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be granted if a movant shows there was mistake of law or fact or presents newly discovered evidence that could not have been discovered previously. Matter of Prince, 85 F.3d 314 (7th Cir. 1996), reh'g and suggestion for reh'g en banc denied, cert. denied 117 S.Ct. 608; Deutsch v. Burlington Northern R. Co., 983 F.2d 741 (7th Cir. 1993).

Upon review of the record, the Court remains persuaded that its ruling dismissing the case without prejudice was correct. Therefore, the instant motion (Doc. 9) is DENIED.

IT IS SO ORDERED.

J. Phil Gilbert U. S. District Judge

20100723

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