Opinion
99 C 6450.
November 23, 2004
On June 7, 2004, I entered an order granting Defendant's Motion for Summary Judgement, terminating this case. On July 21, 2004, Plaintiff filed a motion for reconsideration, which I denied on August 16, 2004. On September 16, 2004, Plaintiff filed a Notice of Appeal. In response, the Seventh Circuit entered an order questioning the jurisdiction of Plaintiff's appeal and instructing Plaintiff to file a memorandum stating why the appeal should not be dismissed for lack of jurisdiction and advising Plaintiff that she could also file a motion in this court requesting an extension of time to file a notice of appeal. Pursuant to that order, Plaintiff filed the instant motion, requesting that I extend the time allowed for her to file an appeal on the basis of excusable neglect. Under Fed.R.App.P. 4(a), the appellant must file the appeal within 30 days after judgment is entered. In this case, the 30-day window expired on July 7, 2004.
In her motion, Plaintiff asks that I extend the 30-day period because she made the mistaken assumption that her earlier filed motion for reconsideration had tolled the time for her appeal. Plaintiff argues that her failure to timely file should constitute excusable neglect because her assumptions on timeliness were based on my grant of two extensions of time for her to file a motion for reconsideration. As a general rule, the excusable neglect exception is narrowly construed and usually involves cases of estoppel or a reasonable failure to learn of the entry of judgment. Hardin v. Synthes U.S.A., No. 90 C 2426, 1991 U.S. App. LEXIS at *2 (7th Cir. Oct. 10, 1991). "Ignorance of the law or unfamiliarity with the federal rules almost invariably falls short of excusable neglect." U.S. v. Tait, 963 F.2d 375, 1992 U.S. App. LEXIS 11752 at *6 (7th Cir. 1992).
Plaintiff claims that I erred by granting her an extension of time to file her motion for reconsideration and, thereby, created grounds for her reliance. Plaintiff's argument, however, is based on an incorrect premise. It was well within my jurisdiction to allow Plaintiff to file a motion to reconsider, under Rule 60(b), more than 10 days after judgment had been entered. Hope v. U.S., 43 F.3d 1140, 1143 (7th Cir. 1994). Courts have allowed motions challenging the merits of a district court's opinion to be reviewed either under Rule 59(e) or Rule 60(b). Starr v. Levin, No. 02 C 2258, 2002 U.S. Dist. LEXIS 22834 at *2 (N.D. Ill. Nov. 25, 2002) (citing GHSC Assocs. Ltd. P'ship v. Wal-Mart Stores, 29 Fed. Appx. 382, 384 (7th Cir. 2002)). Although a litigant may pursue review under either rule, they are procedurally distinct. A key difference between the two rules has to do with timing. A Rule 59(e) motion must be filed within 10 days of the entry of judgment and, when timely filed, tolls the time for appeal. A Rule 60(b) motion, on the other hand, may be filed within a "reasonable" amount of time and does not toll the time for appeal. When a motion is filed more than 10 days after the entry of judgment, regardless of designation, the motion automatically becomes a Rule 60(b) motion. Talano v. Northwestern Med. Faculty Found., Inc. 273 F.3d 757, 762 (7th Cir. 2001) (quotations omitted).
Plaintiff asked for her first extension of time to file her motion for reconsideration on June 22, 2004, fifteen days after entry of the final judgment. Plaintiff made no designation as to which type of motion she was filing and made no representations about her plans for appeal. I granted that extension and Plaintiff ultimately submitted her motion for reconsideration on July 21, 2004. Because every filing made by Plaintiff in regards to her motion was submitted after the 10-day deadline, there can be no question that her unspecified motion fell under Rule 60(b) and did not toll the time for her appeal.
Despite Plaintiff's assertions to the contrary, I was under no obligation to educate her on the ramifications of filing her motion after the 10-day deadline for a Rule 59(e) motion had expired. As the courts in this circuit have clearly and repeatedly stated, "it is not the district court's duty, nor [the opposing party's] duty, to sort through postjudgment motions and advise the moving party whether his appeal clock [is] ticking," Hope, 43 F.3d. at 1143-44 (footnote omitted). It was Plaintiff's responsibility to familiarize herself with the procedural rules of this court and any failure to do so was done at her own peril. I make no dispensation for this pro se Plaintiff's lack of prior experience with the federal courts because, as I have stated before, Plaintiff is an attorney licensed to practice in Illinois. Had Plaintiff acted in a reasonably diligent manner, she could and should have, given her prior training and experience, determined the consequences of filing her motion after the 10-day period for a Rule 59(e) motion had expired. Plaintiff's failure to familiarize herself with the procedures of this court does not rise to the level of excusable neglect and does not create grounds for an extension of time to appeal. See Tait at *6.
Plaintiff's Motion to Extend the Time to File Notice of Appeal is DENIED.