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Smothermann v. Humphrey

United States District Court, S.D. Illinois

February 21, 2017



          J. PHIL GILBERT United States District Judge.

         This matter comes before the Court on plaintiff Sanchez Smotherman's pro se motion to reopen this case in light of his counsel's failure to file a Fourth Amended Complaint identifying the unknown defendants in a timely matter, which caused the Court to dismiss this case for lack of prosecution (Doc. 47). Defendant Rick Watson responded to the motion, arguing that the Court should not reopen the case because it is old, Smotherman has had enough time to file an amended pleading, and the statute of limitations has passed without any reason for tolling it (Doc. 50). The Court also considers Smotherman's appointed counsel's motion for leave to belatedly file the Fourth Amended Complaint (Doc. 54). He represented in a February 8, 2017, telephone status conference and again in his motion that his failure to file an amended pleading was inadvertent.

         The decision whether to reopen this case is governed by Rule 60(b). It is well settled that Rule 60(b) 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) (citing Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994)). Rule 60(b) allows a court “to address mistakes attributable to special circumstances and not merely to erroneous applications of law.” Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). The rule authorizes a Court to grant relief from judgment for the specific reasons listed in the rule but does not authorize action in response to general pleas for relief. See Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995).

         Rule 60(b)(1) allows a court to reopen a case that was closed because of inadvertence or excusable neglect. Excusable neglect can include omissions through an attorney's carelessness and mistake. Robb v. Norfolk & Western Ry., 122 F.3d 354, 359 (7th Cir. 1997) (attorney's negligence in meeting summary judgment briefing deadline may be excusable neglect) (citing In re Bulic, 997 F.2d 299, 302 (7th Cir. 1993)); see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 388-89 (1993). A court should determine whether an attorney's neglect is excusable by weighing the equities, taking into account all of the relevant circumstances. Pioneer, 507 U.S. at 395; In re Bulic, 997 F.2d at 302. The court has discretion to determine whether neglect is excusable. Robb, 122 F.3d at 361.

         The Court finds the dismissal of Smotherman's case was due to his counsel's excusable neglect. Counsel was appointed solely to conduct discovery to identify the unknown defendants and to amend Smotherman's pro se pleading. He conducted that discovery and some settlement negotiations. He neglected, however, to timely amend Smotherman's complaint. The Court finds it would be inequitable to allow the dismissal to stand in light of the fact that it was not Smotherman's fault, there is no evidence Smotherman ever acted in bad faith, Smotherman did not select his own counsel so he has less reason to be forced to suffer from his counsel's errors, and allowing this case to remain dismissed after the statute of limitations has run would likely doom Smotherman's claims even though they were dismissed without prejudice. The Court is aware that the passage of time means memories of witnesses may have faded and that the defendants are entitled to a timely end to this case. Nevertheless, on balance, the Court finds it more appropriate to reopen this case to decide it on its merits (or on other procedural bases).

         Therefore, the Court:

• GRANTS Smotherman's motion to reopen this case (Doc. 47);
• VACATES the order and judgment terminating this case (Docs. 45 & 46);
• DIRECTS the Clerk of Court to reopen this case;
• GRANTS Smotherman's motion for leave to amend the complaint out of time (Doc. 54);
• ACCEPTS the Fourth Amended Complaint (Doc. 53) as timely filed;
• DIRECTS the Clerk of Court to terminate Watson as a party to this case as he was not named in the Fourth Amended Complaint; and
• TERMINATES Smotherman's appointed counsel in this case as contemplated by Chief Judge Reagan when he appointed counsel only to accomplish specific tasks.

         As to the newly identified unknown defendants, the Clerk of Court is DIRECTED to prepare a waiver of summons as to defendants DON HUMPHREY, LEVI BRIDGES and PHILLIP MCLAURIN Thus, as to defendants HUMPHREY, BRIDGES and MCLAURIN the Clerk of Court shall prepare: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the Fourth Amended Complaint (Doc. 53), the threshold order (Doc. 30), and this Memorandum and Order to the defendants' place of employment as identified by Plaintiff. If a defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take ...

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