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Civil Procedure – Voluntary dismissal – motions to reopen

By: WISCONSIN LAW JOURNAL STAFF//September 15, 2011//

Civil Procedure – Voluntary dismissal – motions to reopen

By: WISCONSIN LAW JOURNAL STAFF//September 15, 2011//

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Civil Procedure
Voluntary dismissal; motions to reopen

Where plaintiffs voluntarily dismissed a complaint for strategic reasons, they cannot reopen the case.

“Counsel conceded at oral argument that he assumed that Rule 60(b) operates the same way as the Illinois statute governing voluntary dismissals. See 735 ILCS 5/13- 217. That provision specifies that if a plaintiff voluntarily dismisses an action, the plaintiff ‘may commence a new action within one year or within the remaining period of limitation, whichever is greater[.]’ 735 ILCS 5/13- 217. There is no such safe harbor in the federal rules, although in federal cases governed by Illinois’ statute of limitations, we will apply the coordinate tolling rule set forth in Section 5/13-217. Jenkins, 506 F.3d at 623- 24. The instant case is governed by a federal statute of limitations, however, so that exception does not help the plaintiffs here. In federal cases, the limitations period continues to run after the case is dismissed without prejudice. Lee v. Cook County, Ill., 635 F.3d 969, 971-72 (7th Cir. 2011). As counsel acknowledged at oral argument, he should have moved to stay proceedings pending the outcome of the criminal case. He did not do so because he did not wish to reveal to the court or to his opponent the reason for the stay. This was a tactical decision based on a mistaken reading of Rule 60. ‘An inadvertent “mistake” that might justify relief typically involves a misunderstanding of the surrounding facts and circumstances.’ Eskridge, 577 F.3d at 809. Counsel here simply misunderstood the applicable rule of civil procedure. It is well within a district court’s discretion to determine whether this kind of mistake or neglect was excusable. Webb, 147 F.3d at 622. See also Cash v. Illinois Div. of Mental Health, 209 F.3d 695, 697-98 (7th Cir. 2000) (Rule 60(b) is not intended to correct mere legal blunders). The district court declined to relieve the plaintiffs of the consequences of their tactical decision to voluntarily dismiss. A court abuses its discretion only when no reasonable person could agree with the decision to deny relief. Eskridge, 577 F.3d at 809. There is no abuse of discretion here.”


10-2260 Nelson v. Napolitano

Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Rovner, J.

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