Century Surety Company v. Collins et al, No. 3:2011cv00724 - Document 72 (S.D. Ill. 2013)
Court Description: ORDER denying 68 Motion for Relief from Order. Signed by Judge Michael J. Reagan on 3/29/13. (caa)
Download PDF
<![CDATA[
Century Surety Company v. Collins et al Doc. 72 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS CENTURY SURETY COMPANY, Plaint iff, v. BP CORPORATION NORTH AMERICA, INC. f/ k/ a BP Amoco Corporat ion, BUCK’ S, INC., and BP PRODUCTS NORTH AMERICA, INC., Defendant s. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 11-cv-0724-MJR MEMORANDUM AND ORDER REAGAN, Dist rict Judge: On August 23, 2011, Cent ury Suret y Company filed a complaint for declarat ory j udgment against t he above-named Defendant s. Cent ury asks t he Court t o find and declare t hat it has no dut y t o defend, indemnify or reimburse Defendant s wit h respect t o any of t he claims assert ed in t he underlying act ion, Vincent Brown v. Terry Collins, et al., Case No. 11-L-140, now pending in t he Circuit Court of St . Clair Count y, Illinois. On Oct ober 6, 2012, Cent ury filed it s mot ion for ent ry of default against Defendant Vincent Brown (Doc. 42). The Clerk ent ered default on Oct ober 9, 2012 (Doc. 43). On November 19, Cent ury moved for a j udgment of default (Doc. 46). That same day, t he Court set a hearing on Cent ury’ s mot ion, direct ing Cent ury’ s counsel t o serve a copy of t he hearing not ice on Brown (Doc. 47). Defendant Brown failed t o appear at t he hearing, but t he Court reserved ruling on t he mot ion for default j udgment pending Cent ury’ s submit t ing proof of 1 Dockets.Justia.com service on Brown of t he Court ’ s November 19 Order (Doc. 54). Approximat ely six weeks lat er, t he Court denied Cent ury’ s mot ion for default j udgment because Cent ury had not submit t ed t he proof of service required by Court Order (Doc. 60). On February 21, 2013, pursuant t o Federal Rule of Civil Procedure 41(b), t he Court dismissed t his act ion as t o Defendant Brown wit hout prej udice for failure t o seek a default j udgment wit h proper document at ion and failure t o prosecut e. Cent ury moves for relief from t hat Order, st at ing, In reviewing t he Court ’ s Order (Doc. 64) and previous pleadings and orders in t his mat t er, Plaint iff’ s at t orney realizes t hat his failure t o file t he ret urn of service of t he summons on Defendant Brown and t he proof of service of t he Not ice of t he December 13, 2012, hearing is int erpret ed by t he Court as failure t o comply wit h t he Court ’ s previous Orders and lack of diligence in pursuing Plaint iff’ s act ion as t o Defendant Brown. The undersigned at t orney apologizes t o t he Court for not having filed proof of service earlier, and asks t he Court t o reconsider it s Order of December 21st . In ot her words, Cent ury asks t he Court t o reconsider it s ruling. Technically, a “ mot ion t o reconsider” does not exist under t he Federal Rules of Civil Procedure. But such mot ions are rout inely filed, and t hey generally are t reat ed as mot ions t o alt er or amend j udgment under Rule 59(e) or mot ions for relief from j udgment / order under Rule 60(b). See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7 th Cir. 1994). Different st andards and t ime-t ables govern Rule 59(e) and Rule 60(b) mot ions. Rule 59(e) permit s a court t o amend a j udgment only if t he movant demonst rat es a manifest error of law or present s newly discovered evidence t hat was not previously available. See, e.g., Sigswort h v. Cit y of Aurora, 487 F.3d 506, 511- 2 12 (7th Cir. 2007).Rule 60(b) permit s a court t o relieve a part y from an order or j udgment based on such grounds as mist ake, surprise or excusable neglect by t he movant ; fraud or misconduct by t he opposing part y; a j udgment t hat is void or has been discharged; or newly discovered evidence t hat could not have been discovered wit hin t he deadline for filing a Rule 59(b) mot ion. Prior t o 2006, t he law of t his Circuit provided a bright -line t est -- any mot ion filed wit hin t en days of j udgment had t o be const rued as falling under Rule 59(e), and any mot ion filed aft er t hat period had t o be const rued as falling under Rule 60(b). See, e.g., Talano v. Nort hwest ern Medical Facult y Foundat ion, Inc., 273 F.3d 757, 762 (7th Cir. 2001)(reiterating that when a motion to alter or amend under Rule 59(e) “is filed more than 10 days after entry of judgment, [it] automatically becomes a Rule 60(b) motion.”). In Borrero v. Cit y of Chicago, 456 F.3d 698, 701-02 (7 th Cir. 2006), t he Court of Appeals declared t hat dist rict court s should analyze each post -j udgment mot ion based on it s subst ance, as opposed t o t he dat e on which t he mot ion was filed. The Sevent h Circuit reit erat ed t his in Obriecht v. Raemisch, 517 F.3d 489, 493-94 (7th Cir. 2008): “ whet her a mot ion … should be analyzed under Rule 59(e) or Rule 60(b) depends on t he subst ance of t he mot ion, not on t he t iming or label affixed t o it .” Rule 59(e) was amended effect ive December 1, 2009 so t hat t he 10-day deadline became a 28-day deadline, but Borrero and Obriecht st ill guide t he dist rict court ’ s analysis. Thus, t his Court assesses mot ions t o reconsider based on t heir subst ance – i.e., t he reasons for relief art iculat ed by t he movant – as opposed t o t he t it le t he movant chose for t he mot ion or solely t he dat e on which he filed it . 3 Alt hough Borrero and Obriecht direct t he Court t o focus on t he subst ance of t he mot ion, t he t iming of t he mot ion remains relevant . Rule 59(e) only applies t o mot ions filed wit hin 28 days af t er ent ry of j udgment . 1 By cont rast , a mot ion under Rule 60(b)(1) assert ing mist ake, inadvert ence, surprise or excusable neglect may be filed wit hin one year aft er ent ry of j udgment . FED. R. CIV. P. 60(c)(1). Wit h t hese principles in mind, t he Court t urns t o t he mot ion in t he inst ant case. Because t he basis of Cent ury’ s mot ion appears t o be excusable neglect , t he Court analyzes t he mot ion under Rule 60(b)(1). The Court cannot find t hat Cent ury’ s counsel’ s inat t ent iveness was even part ially j ust ified so as t o fall “ wit hin t he gray area bet ween carelessness and excusable neglect .” Hough v. Local 134, Int ’l Bhd. of Elec. Workers, 867 F.2d 1018, 1022 (7th Cir. 1989). counsel had a responsibilit y t o follow Court Cent ury’ s orders and provide required document at ion. It is clear from t he at t achment s t o t he mot ion t hat service was made and t hat proof merely needed t o be submit t ed t o t he Court t o obt ain default j udgment . Even when t he Court denied default j udgment for failure t o provide t he document at ion, Cent ury did not act . Inst ead, approximat ely a year-and-a-half aft er t his act ion was filed, Defendant Brown had not appeared, and Cent ury had not t aken t he st eps necessary t o achieve default j udgment . 1 And only motions filed within the 28-day deadline of Rule 59(e) toll the time for filing an appeal. Stated another way, motions filed after the 28-day period do not suspend the finality of a judgment. See York Group, Inc. v. Wuxi Taihu Tractor Co., Ltd., 632 F.3d 399, 401 (7th Cir. 2011). 4 “ Alt hough at t orney carelessness can const it ut e ‘ excusable neglect ’ under Rule 60(b)(1), … at t orney inat t ent iveness t o lit igat ion is not excusable, no mat t er what t he result ing consequences t he at t orney's somnolent behavior may have on a lit igant .” Easley v. Kirmsee, 382 F.3d 693, 698 (7 th Cir. 2004) (citing In re Plunket t , 82 F.3d 738, 742 (7th Cir.1996) (“Missing a filing deadline because of slumber is fatal.”) (internal citation and additional citations omitted). Cent ury’ s at t orneys’ conduct can only be classified as inexcusable inat t ent iveness or neglect , rat her t han excusable carelessness. Moreover, court s possess an inherent aut horit y t o dismiss for want of prosecut ion “ t o achieve t he orderly and expedit ious disposit ion of cases.” Id. (citations omitted). In summary, Cent ury has not demonst rat ed excusable neglect or any ot her basis under t he Rules for grant ing relief from it s February 21, 2013, Order. Accordingly, t or t he foregoing reasons, t he Court DENIES Cent ury’ s Mot ion for Relief from Order (Doc. 68). IT IS SO ORDERED. DATED t his 29t h day of March, 2013 s/ Michael J. Reagan MICHAEL J. REAGAN Unit ed St at es Dist rict Judge 5 In summary, t he record reflect s a failure by Cent ury t o prosecut e t his act ion against Brown. Cent ury had not filed evidence showing service on Brown wit hin a year aft er t he case was filed but was able t o show t hat service was effect ed wit hin four days of t he Clerk issuing a not ice of impending dismissal. That alone st alled t he case against Brown for approximat ely six mont hs because Cent ury did not move for ent ry of default unt il warned by t he Clerk. Moreover, Cent ury again delayed t he case by failing t o obt ain a j udgment of default because it did not submit proper document at ion as required by Court Order. Eight een mont hs have passed since t his case was filed, and t rial is set in approximat ely five weeks. Yet , Cent ury has not t aken t he st eps necessary t o obt ain default j udgment against Brown. A j udge is not required t o warn a plaint iff repeat edly, nor is he required t o issue a formal rule t o show cause before dismissing a case. Aura Lamp & Light ing Inc. v. Int ’l Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003) (citing Ball v. Cit y of Chicago, 2 F.3d 752, 755 (7th Cir.1993)). In ot her words, “ ‘ A j udge is not obliged t o t reat lawyers like children.’ ” Id. (quoting Ball, 2 F.3d at 755). The court need 6 only give an explicit warning. Id. This t he Court did in Sept ember 2012 when t he Court not ified Cent ury t hat t he case would be dismissed if it did not effect service or, if service had been effect ed, seek a default . Five mont hs lat er, t his case is no fart her forward as t o Brown. For t he foregoing reasons, pursuant t o Federal Rule of Civil Procedure 41(b), t he Court DISMISSES t his act ion as t o Defendant Vincent Brown wit hout prej udice for failure t o seek a default j udgment wit h proper document at ion and failure t o prosecut e. IT IS SO ORDERED. DATED t his 21st day of February, 2013 s/ Michael J. Reagan MICHAEL J. REAGAN Unit ed St at es Dist rict Judge 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
