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Paul F. Moriconi v. Neil Williamson

June 2, 2011

PAUL F. MORICONI, PLAINTIFF,
v.
NEIL WILLIAMSON, SHERIFF, SANGAMON COUNTY, ILLINOIS;
TRAVIS KOESTER, DEPUTY SHERIFF, SANGAMON COUNTY, ILLINOIS; AND BRAD TWERYON, DEPUTY SHERIFF, SANGAMON COUNTY, ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge.

E-FILED

Thursday, 02 June, 2011 11:26:32 AM Clerk, U.S. District Court, ILCD

OPINION

On April 20, 2011, this Court granted the Motion to Dismiss (d/e 17) filed by Defendants Neil Williamson, Travis Koester, and Brad Tweryon due to Plaintiff's failure to file a response thereto. On April 28, 2011, this Court clarified that the dismissal was with prejudice.

On May 16, 2011, Plaintiff filed a Notice of Appeal. On the same date, Plaintiff filed a Motion to Vacate Order of Dismissal of Complaint Pursuant to Rule 60(b)(1) and (b)(6) (d/e 23) and a Motion to Vacate Judgment of Dismissal Pursuant to Rule 59(a) and (e) (d/e 24). Plaintiff also filed a memorandum in support thereof and the affidavit of Plaintiff's attorney.

On May 20, 2011, this Court, believing it lacked jurisdiction to rule on the motions because of the Notice of Appeal, did not rule on the motions and instead entered an order indicating the Court would grant the Rule 60 motion if the Seventh Circuit remanded the action. The post-judgment motions remain pending in this Court.

This Court now finds that, pursuant to Rule 4 of the Federal Rules of Appellate Procedure, the Court has jurisdiction to rule on the two pending pos-judgment motions, even though a Notice of Appeal has been filed. Under Rule 4, "the district court retains jurisdiction to decide certain timely post-judgment motions," including motions pursuant to Rule 59 and, if filed within 28 days of the judgment, motions filed pursuant to Rule 60. Benson v. Grant Food Stores, L.L.C., 2011 WL 722256 (E.D. Pa. 2011); see also ConocoPhillips Co. v. Milestone Pacific Properties, LLC, 2010 WL 4608223 (N.D. Cal. 2010) (finding "a notice of appeal does not become effective, and the district court does not lose jurisdiction, until the district court rules on all motions for reconsideration" filed within 28 days of judgment). Rule 4 provides as follows:

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(iv) to alter or amend the judgment under Rule 59;

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.

(B)(i) If a party files a notice of appeal after the court announces or enters a judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A)--the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

Fed.R.App.P. 4.

Here, Plaintiff filed his Rule 60 motion within 28 days of judgment and also filed a timely motion pursuant to Rule 59. Plaintiff's previously filed notice of appeal is ineffective until this Court disposes of his two pending posttrial ...


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