In In re Marriage of Heinrich, 2014 IL App (2d) 121333, the Illinois Appellate Court, Second District, held that a ruling on a declaratory judgment motion within a marriage dissolution proceeding was not appealable until a subsequent ruling on a motion to reconsider, brought 17 months later, that contained a specific finding pursuant to Supreme Court Rule 304(a) (eff. Feb. 26, 2010). The court’s opinion, with one justice dissenting, represents an apparent split among the First and Second Appellate Districts as to whether a trial court’s declaratory judgment order entered pursuant to section 2-701(a) of the Code of Civil Procedure (735 ILCS 5/2-701(a) (West 2010)) is immediately appealable without a Rule 304(a) finding.

In Heinrich, the parties were married on May 26, 2001. The day prior to their marriage, they signed a premarital agreement. On April 28, 2010, the wife-petitioner filed a petition to dissolve the parties’ marriage.

On March 3, 2011, the husband-respondent moved for a declaratory judgment pursuant to section 2-701(a) of the Code, seeking a general termination of the parties’ rights under the premarital agreement, arguing an actual controversy as to the agreement’s validity and enforceability. Petitioner requested a finding that the premarital agreement was valid and enforceable. On April 8, 2011, the court reviewed the agreement and found it valid and enforceable. Between May 2011 to October 2012, various further proceedings took place in the dissolution proceeding not relevant to the appeal.

However, on October 1, 2012, respondent filed a motion asking the trial court to reconsider its April 8, 2011, declaratory order finding that the premarital agreement was valid and enforceable. In response, petitioner filed in the trial court an emergency motion for an immediate hearing on respondent’s motion to reconsider and for a Rule 304(a) finding. The trial court first found the petitioner’s motion not an emergency. Noting that respondent’s motion to reconsider “was untimely and that it presented ‘nothing new,’ ” the court denied respondent’s motion to reconsider. The court found that, pursuant to Rule 304(a), there was no just reason to delay enforcement or appeal or both of its order of April 8, 2011, declaratory order.

On appeal, the majority held that the April 8, 2011 declaratory order was final, but not appealable, on the date it was entered because the dissolution matter had continued. Therefore, the order did not become final and appealable until the trial court made its Rule 304(a) finding over 17 months later. The dissent considered a declaratory judgment entered pursuant to section 2-701(a) to be final under Supreme Court Rule 303 and, when part of a larger lawsuit, that determination should be treated as immediately appealable pursuant to Rule 304(b).

The majority cited In re Marriage of Best, 228 Ill.2d 107 (2008) (Best I). In Best I, the husband petitioned for dissolution of the parties’ marriage and, later, moved for declaratory judgment, seeking a ruling concerning the validity and construction of their premarital agreement. According to the majority in Heinrich, the Supreme Court in Best I held that, even though a final dissolution order had not been entered, a reviewing court could review the trial court’s rulings if the requirements of the declaratory judgment statute were met. But the majority then noted from Best I that, as “critical to this appeal, the Supreme Court further declared that the ruling was appealable under Rule 304(a).” Thus according to the majority, in Best I the “parties’ two requests for relief (declaratory and non- declaratory) had different statutory bases and were ‘not so closely related that they must be deemed part of a single claim for relief.’ ”

Relying on Best I, the majority held that jurisdiction was conferred pursuant to Rule 304(a), where a judgment in the case involving multiple parties or multiple claims disposes of at least one, but not all, of such parties or claims. Here, the trial court’s declaratory judgment, which addressed claims relating to the premarital agreement, was final on April 8, 2011. However, the majority opined, the trial court’s April 8, 2011, order only became appealable on October 31, 2012, by virtue of the court’s express Rule 304(a) finding. The majority further stated: "[a]lthough the Rule 304(a) finding here was not made until over 17 months later (in an order also denying respondent’s motion to reconsider), that delay is of no import because a Rule 304(a) finding may be made at any time.”

As the majority further explained:

“[T]he fact that respondent filed his motion to reconsider over 17 months after the declaratory judgment does not alter our conclusion. The declaratory judgment was final, but not appealable, on the date it was entered – April 8, 2011. [Citation omitted.] The order did not become appealable until the court made its Rule 304(a) finding. [Best I, 228 Ill.2d at 113.] The fact that respondent filed a motion to reconsider in the interim, which prompted petitioner’s request for Rule 304(a) language, does not alter this conclusion. The 30-day period for filing a notice of appeal was triggered by the issuance of the trial court’s Rule 304(a) language, not by any earlier filings. To hold otherwise, as the dissent suggests, would have the effect of swallowing Rule 304(a) and ignoring Best I”.

The majority also distinguished Pritza v. Village of Lansing, 405 Ill.App.3d 634 (2010), a case the dissent relied upon, as not involving a marriage dissolution action, and as not addressing Best I. In Pritza, the First District held that finality attached to a declaratory judgment on the date of its entry even without a Rule 304(a) finding, and that a trial court’s declaratory judgment order “ ‘fixed absolutely the rights of plaintiff and defendants on plaintiff’s claim for declaratory judgment for uninsured motorist’s coverage.’ ” As a result, the court in Pritza held that a party was required to appeal from a trial court’s declaratory order within 30 days of the orders entry even if that order did not contain a Rule 304(a) finding. The majority in Heinrich reiterated that, in a dissolution context, a declaratory judgment order is final when entered; but while finality may attach to a declaratory judgment order on the date it is entered, that order is not appealable in a dissolution context absent Rule 304(a) language where, as here, the declaratory judgment did not dispose of the entire action because the dissolution claim remained pending.

The dissent countered that the majority’s holding “promotes uncertainty over certainty,” as the parties will “now be able to revisit a declaratory judgment 17 months, or 17 years, after that order was entered.” The dissent looked to section 2-701(a) of the Code, which allows a court in cases of actual controversy to “make binding to declarations of rights, having the force of final judgments *** .” The dissent emphasized that the declaratory judgment procedure was designed to settle and fix litigants’ rights before there has been an irrevocable change in their respective positions, and to “afford security and relief against uncertainty so as to avoid potential litigation.”

Here, the dissent asserted, the respondent’s motion to reconsider “asked the trial court to bring the parties back 17 months to step one and place them in the exact same position that they were in when respondent filed his motion for declaratory judgment in March 2011.” Instead of a declaratory judgment being final, therefore, the parties “were once again uncertain as to their respective rights and obligations under the premarital agreement.”

The dissent distinguished Best I because that holding “did not speak to whether a party could request adding Rule 304(a) language to a declaratory judgment order 17 months after the trial court entered that order.” Therefore, the dissent could not read Best I “as broadly as the majority,” and did not believe that case to be controlling under the specific circumstances of the instant matter."

Rather, the dissent deemed the rationale and holding in Pritza more analogous to the instant matter. Recognizing that Pritza involved a declaratory judgment with respect to uninsured motorist’s coverage, as opposed to the instant matter involving a declaratory judgment in a dissolution proceeding, the dissent nevertheless deemed the holding in Pritza that a declaratory order is immediately appealable absent a Rule 304(a) finding “sound with respect to the finality of a declaratory judgment order.”

Appellate practitioners should take note of the split between Heinrich and Pritza as to whether a declaratory order entered pursuant to section 2-701(a) of the Code is immediately appealable without a Rule 304(a) finding. Until this conflict is settled, the prudent course would be to request a Rule 304(a) finding on the date the trial court issues a declaratory judgment order.

 

 

Recommended Citation: Robert G. Black, Is a Declaratory Judgment Order Immediately Appealable Without a Rule 304(a) Finding?, The Brief, (July 7, 2014), http://applawyers-thebrief.blogspot.com/2014/07/is-declaratory-judgment-order.html.

On June 19, 2014, the Association hosted a luncheon honoring the Justices of the Illinois Appellate Court, Third District. The luncheon was held at the scenic Starved Rock State Park in Ottawa.

Newly installed ALA President Steve Pflaum welcomed the attendees and introduced Presiding Justice Tom M. Lytton, who presented the other five justices in attendance. Justice Lytton also introduced  the Third District's new Clerk, Barbara Trumbo.

Following the introductory remarks, a roundtable luncheon was held. A trademark feature of such luncheons, the justices sat at different tables with attendees, allowing appellate practitioners to gain insight and perspective from the bench in an up-close and collegial environment. The attendees were encouraged to question the justices regarding their opinions and practices with written briefs, tips for oral arguments, and use of clerks and other court personnel.

The ALA thanks the Justices of the Illinois Appellate Court, Third District, for an enjoyable and informative luncheon.

Recommended Citation: Natalie Thompson, ALA Hosts Third District Luncheon at Starved Rock, The Brief, (July 1, 2014), http://applawyers-thebrief.blogspot.com/2014/07/ala-hosts-third-district-luncheon-at.html.

The United States Court of Appeals for the Seventh Circuit recently issued a "Notice of Proposed Circuit Rule Changes And Opportunity for Comment." If adopted, the proposed changes will affect a number of circuit rules, including rules governing the notice of appeal and docketing statement (Rule 3); the record on appeal (Rule 11); the disclosure statement (Rule 26.1); briefs (Rule 28); and oral arguments (Rule 34).

The Advisory Committee is soliciting written comments regarding the proposed rule changes, which must be sent to the Committee by August 1, 2014. 

Recommended Citation: Charlie Ingrassia, Seventh Circuit Proposes Circuit Rule Changes, The Brief, (June 26, 2014), http://applawyers-thebrief.blogspot.com/2014/06/seventh-circuit-proposes-circuit-rule.html.

Interpreting Illinois Supreme Court Rule 369(b) (eff. July 1, 1982), the Illinois Appellate Court, First District, ruled that, post appeal, a trial court has jurisdiction over a case where the trial court’s ruling is affirmed in part, even if the reviewing court did not remand the case. The holding clarifies that an express remand is not necessary to revest jurisdiction in the trial court when a reviewing court affirms, even in part.

In POM 1250 N. Milwaukee, LLC, v. F.C.S.C., Inc., 2014 IL App (1st) 132098, the plaintiff POM appealed an attorney fees award, in which the trial court ordered it to pay the defendant FCSC more than $54,000 in attorney fees. FCSC cross-appealed, claiming that the trial court had erred in denying its request for sanctions pursuant to Rule 137 (eff. Feb. 1, 1994). During the pendency of that appeal, POM did not seek a stay of enforcement. While the appeal was pending, POM obeyed a turnover order that FCSC obtained during enforcement proceedings before the trial court and paid FCSC in excess of $50,000. The reviewing court reversed FCSC's fee award and affirmed the trial court's decision not to impose Rule 137 sanctions. The reviewing court’s order did not include a remand.

Thereafter, POM returned to the trial court, which, upon POM’s request, ordered FCSC to return the money POM had paid pursuant to the prior turnover order. FCSC refused, arguing that the trial court did not have jurisdiction to order it to return the money because the reviewing court did not expressly remand the case, which was necessary to revest jurisdiction in the trial court. FCSC appealed after the trial court denied its motion to reconsider.

FCSC lost the second appeal based upon the appellate court's review of Rule 369(b) and relevant case law. Rule 369(b) provides: "When the reviewing court dismisses the appeal or affirms the judgment and the mandate is filed in the [trial] court, enforcement of the judgment may be had and other proceedings may be conducted as if no appeal had been taken." 

The appellate court held that, when it affirms all or part of a trial court's judgment, the reviewing court need not expressly order a remand for the trial court to take action. Rule 369(b) allows the trial court to enforce the judgment and conduct other proceedings as if no appeal had been taken. As the court in POM explained, "[b]y affirming in part, the [reviewing] court necessarily revested the trial court with jurisdiction over the case and permitted the court to conduct 'other proceedings,' namely POM's post[-]appeal motion for a reverse turnover order." Thus, in an odd procedural twist, it was FCSC's decision to cross-appeal the trial court's decision not to impose Rule 137 sanctions, which the appellate court affirmed after reversing the trial court's fee award, that revested jurisdiction in the trial court without an express remand.

The appellate court rejected FCSC’s other argument, that the doctrine of res judicata barred the trial court from challenging the turnover order, which POM did not appeal. The court in POM reasoned that the parties were involved in the same proceeding after the first appeal, so, in the absence of a subsequent proceeding, res judicata did not apply.

Recommended Citation: Karen Kies DeGrand, Pursuant to Rule 369(b), Express Remand Not Necessary When Reviewing Court Affirms in Part,The Brief, (June 25, 2014), http://applawyers-thebrief.blogspot.com/2014/06/pursuant-to-rule-369b-express-remand.html

On June 13, 2014, the Association gathered at the Union League Club in Chicago for the Installation luncheon of Steven F. Pflaum as the Association's 47th President. Attendees included ALA members as well as judges from the United States Court of Appeals for the Seventh Circuit, the Illinois Supreme Court, the Illinois Appellate Court, and the Circuit Court of Cook County. Also in attendance were a number of special guests, including President Pflaum's wife and children and attorneys from Pflaum's law firm, Neil, Gerber & Eisenberg LLP.

Outgoing president Brad Elward began the festivities by providing welcoming remarks and recounting a successful bar year, which included holding events within every appellate district. Pursuant to its bylaws, the Association also elected a new slate of Officers and Directors. The newly elected Officers are Michael Scodro of Jenner & Block LLP as Vice President; JoAnne Driscoll of Forde Law Offices LLP as Secretary; and Evan Siegel of the Illinois Attorney General's Office as Treasurer. Newly elected Directors, who will serve a two-year term, are E. King Poor of Quarles & Brady LLP; John Fitzgerald of Tabet DiVito & Rothstein LLC; Natalie Thompson of Heyl, Royster, Voelker & Allen, P.C.; and Matthew Elster of Beermann Pritikin Mirabelli Swerdlove LLP.

Thereafter, Elward introduced Justice Michael B. Hyman of the Illinois Appellate Court, First District, to administer the oath of office. Justice Hyman began his remarks by thanking Elward and the Association for promoting education and professionalism within the legal profession.

ustice Hyman then, as he phrased it, began his "roast" of incoming President Pflaum by quipping that Pflaum shares many of the same physical characteristics as Hollywood actor Nicolas Cage. Drawing a large laugh from the audience, Justice Hyman remarked that the similarities did not end with appearance. For example, Pflaum is a member of the California bar, while Cage frequents many bars in California. Turning to a more serious note, Justice Hyman recounted Pflaum's many achievements within the legal profession and commented that Pflaum is a "meticulous and forthright" attorney who has a reputation for handling high-stake and complex matters.

After taking the oath of office, President Pflaum performed his first official act by thanking Elward, the judges in attendance, and his family. Pflaum shared his vision for the Association. Noting that the ALA is the "hardest working Association in show business," Pflaum stated that the Association will be "Rock Steady," in reference to a famous Aretha Franklin song. That is, the Association will remain steady by continuing to present luncheons, brown bag luncheons, and advanced appellate advocacy seminars throughout the state, but will also "shake things up" by implementing new initiatives started by his predecessors. 

Pflaum discussed the Association's effort to expand its social media presence by transitioning The Brief publication into a publicly available blog. The Association also created a members-only LinkedIn page, which provides members a forum to discuss issues related to appellate advocacy, and plans to revamp its website. In addition, the Association plans to celebrate the Illinois Supreme Court sitting in Chicago this upcoming October. Pflaum noted that the celebration dinner will provide yet another opportunity to facilitate communication between the bench and bar - a core Association principle - and that the legal profession depends upon judges and attorneys working together.

The ALA thanks Past President Elward and the outgoing Directors for a successful and enjoyable bar year, and congratulates the new Officers and Directors.

Recommended Citation: Charlie Ingrassia, Steven Pflaum Installed as Association's 47th President, The Brief, (June 19, 2014), http://applawyers-thebrief.blogspot.com/2014/06/steven-pflaum-installed-as-associations.html.

In Federal National Mortgage Association v. Tomei, 2014 IL App (2d) 130652, the Illinois Appellate Court, Second District, held that it lacked jurisdiction to review a trial court's order vacating a dismissal for want of prosecution (DWP). Federal National filed a mortgage foreclosure action against Tomei. Following Federal National's failure to appear for a status hearing, the trial court dismissed the case for want of prosecution. Thereafter, Federal National filed a motion to vacate the DWP pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2012)), citing a "docketing error" for its failure to appear. The trial court granted the motion and reinstated the case. 

Tomei appealed under Illinois Supreme Court Rule 304(b)(3) (eff. Feb, 26, 2010), arguing that Federal National should not have been relieved of the consequences of its own negligence under the standards of section 2-1401. Federal National argued that the appellate court lacked jurisdiction because, in substance, its motion was brought pursuant to section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2012)).

Section 2-1301(e) gives the court discretion to set aside any default before a final order is entered, including a DWP order. Importantly, the court noted that section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)) generally affords a plaintiff one year to refile an action after a DWP order. Therefore, a DWP order is interlocutory for the year after the trial court enters that order and becomes final only when the refiling period under section 13-217 expires.

Conversely, a section 2-1401 petition allows the trial court to vacate a final judgment more than 30 days after its entry, provided that the movant demonstrates due diligence. Pursuant to Rule 304(b)(3), an order granting or denying relief under section 2-1401 is immediately appealable.

The appellate court agreed with Federal National. It held that, based on the character of Federal National's pleading (as opposed to the label), the trial court should have converted its section 2-1401 motion to a section 2-1301(e) petition, which was the proper vehicle to set aside a DWP order. Therefore, the "[trial court's] grant of the motion produced an interlocutory order, not a final one" and "an appeal was improper." As a result, the appellate court dismissed for lack of jurisdiction.

Recommended Citation: Gretchen Harris Sperry, Illinois Appellate Court: DWP Order Not Appealable Until Period for Refiling Expires, The Brief, (June 14, 2014), http://applawyers-thebrief.blogspot.com/2014/06/illinois-appellate-court-dwp-order-not.html.

In Plumhoff v. Rickard, No. 12-1117 (U.S. May 27, 2014), the United States Supreme Court applied 28 U.S.C. § 1291 and the collateral order doctrine to allow an interlocutory appeal, as of right, of an order denying summary judgment, where the summary judgment motion was based on the defendants’ claim of qualified immunity. Justice Samuel A. Alito wrote the Court’s opinion joined in by six justices, and joined in part by two additional justices.

The case arose from a police officer’s stop of a vehicle driven by Donald Rickard for a traffic violation. Rather than comply with the officer’s request to see his driver’s license, Rickard sped away, resulting in a high-speed chase involving several officers. When stopped again and nearly cornered by the officers, Rickard tried to flee again, at which time the officers fired a total of 15 shots. Rickard’s car crashed into a building and both Rickard and his passenger were killed from a combination of gunshot wounds and crash injuries. Plumhoff, No. 12-1117, slip op. at 3. 

Rickard’s daughter brought a civil rights action against the police officers and city officials in Memphis, where the incident occurred. She alleged the use of excessive force and violation of the Fourth and Fourteenth Amendments. The officers moved for summary judgment based on qualified immunity, which motion was denied. The officers appealed, and the Sixth Circuit affirmed. The Supreme Court then granted certiorari. Id. at 4.-5

Immunity Ruling as Collateral Order 

Justice Alito’s opinion first addressed the Court’s jurisdiction. He noted that denials of motions for summary judgment were not generally considered final orders under § 1291, and therefore, were not immediately appealable. An exception exists, however, where the motion is based on a claim of qualified immunity. Importantly, Alito explained that qualified immunity is immunity from suit and not a mere defense to liability. Id. at 5. 

As such, said Alito, pretrial orders denying qualified immunity generally fell within the collateral order doctrine. They did so because the immunity issue is separate from the merits of the action. The issue also could not be effectively reviewed on appeal from a final judgment, because by that time the immunity from standing trial would have been irretrievably lost. Id. 

Fact v. Legal Determinations 

Alito distinguished the instant case from Johnson v. Jones, 515 U.S. 304 (1995), relied on by the respondent, Rickard’s daughter. In that case, defendant police officers moved for summary judgment claiming that they were not present at the time of an alleged beating of the plaintiff. The district court denied the motion and the officers appealed, claiming that the district court had not correctly analyzed the evidence. Id. at 307-08.

The Johnson Court held that the denial order was not immediately appealable because it merely decided a question of evidence sufficiency, i.e., which facts the defendants may or may not have been able to prove at trial. The Court further observed that such a question is closely related to other determinations that a trial court may be required to make at later stages of the case, and was within the realm of the trial court’s fact-finding expertise. Id. at 313-16.

By contrast, Alito noted that the officers in this case did not claim that they were not responsible for the shooting. Rather, they took the position that their conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law. Alito found that these issues were legal in nature and the core responsibility of appellate courts. He therefore found that the Sixth Circuit properly exercised jurisdiction. Plumhoff, No. 12-1117, slip op. at 6-7.

Merits of Controversy 

On the merits, Alito went on to find that, in light of the danger a high-speed car chase presents to innocent bystanders, the officers did not violate the Fourth Amendment by shooting at Rickard to prevent him from resuming the chase. Id. at 9. Nor did the officers violate the Fourth Amendment by firing 15 shots even in the presence of Rickard’s passenger. Id. at 11. As to the passenger, Alito further commented that Fourth Amendment rights are personal, and the passenger’s presence could not enhance Rickard’s rights. Id. at 11-12.

Finally, in the alternative, Alito found that even if the officers had violated the Fourth Amendment, the violation was not so “clearly established” at the time the incident as to destroy the officers’ right to qualified immunity. Id. at 12-14. 

The Supreme Court therefore reversed the decision of the Sixth Circuit. 

           

Recommended Citation: Don R. Sampen, SCOTUS: Order Denying Summary Judgment is Immediately Appealable as of Right Where Motion is Based on Qualified Immunity Claim, The Brief, (June 10, 2014), http://applawyers-thebrief.blogspot.com/2014/06/scotus-order-denying-summary-judgment.html.

On May 28, 2014, the Association gathered at the Union League Club in Chicago for its annual roundtable luncheon honoring the Judges of the United States Court of Appeals for the Seventh Circuit. ALA Secretary Mike Scodro welcomed Association members and guests, who included many judges of the Seventh Circuit along with judges from the United States District Court for the Northern District of Illinois, the Illinois Supreme Court, the Illinois Appellate Court, and the Cook County Circuit Court.

Also in attendance was Hon. James Allsop, the Chief Justice of the Federal Court of Australia. After being introduced by Chief Judge Diane Wood, Chief Justice Allsop provided an insightful overview of the Federal Court of Australia. The Chief Justice noted that the court was established in 1976; it is a national court with no districts or circuits; and appeals from its decisions go directly to the High Court of Australia, the highest court in the Australian judicial system.

Following lunch, during which members of the Seventh Circuit sat at individual tables alongside ALA members, Chief Judge Wood, Judge John Daniel Tinder, and Judge David Hamilton participated in a panel discussion moderated by Scodro. The panel provided helpful tips with respect to both brief writing and presenting oral argument. Regarding briefs, Chief Judge Wood noted the "virtues of being concise and focused" and emphasized that doing so was "immensely helpful" to the court. Judge Hamilton appreciated briefs that were organized in a simple, two-part, structure: (1) why your side is right; followed by (2) why the other side is wrong.

With respect to oral argument, the panel encouraged the audience to "embrace the tough questions." Chief Judge Wood noted that a well-prepared attorney will thoroughly know the facts and law underlying the case, with Judge Tinder reminding the audience that appellate court judges were "generalists." The panel also provided a helpful reminder that interrupting the judges presiding over oral argument "is a foolish way to win a case."

The ALA thanks the Judges of the Seventh Circuit for another enjoyable and informative roundtable luncheon.

Recommended Citation: Charlie Ingrassia, Seventh Circuit: Be Concise and Embrace Tough Questions, The Brief, (June 4, 2014), http://applawyers-thebrief.blogspot.com/2014/06/seventh-circuit-be-concise-and-embrace.html.

On May 29, 2014, the Illinois Supreme Court amended Rule 306, which governs interlocutory appeals by permission. The amendment added language to subsection (c)(5), which provides that if a petition for an interlocutory appeal is granted, the proceedings at the trial court are stayed. The amended subsection (c)(5) provides that the Appellate Court, or a judge on that court, "may vacate or modify the stay." 

The committee comments note that, "in exceptional circumstances or by agreement of the parties," it may be appropriate for certain aspects of the case to continue at the trial court, "such as discovery, for example." However, the continuation may not interfere with appellate review or otherwise offend "notions of substantial justice," and the trial court is not permitted to enter an order that interferes with appellate review. The amendment becomes effective on July 1, 2014. 

Will parties be more inclined to seek a permissive interlocutory appeal knowing that certain aspects of the case may proceed at the trial court while the interlocutory appeal (if granted) remains pending?

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rule 306: Appellate Court May Vacate or Modify Stay, The Brief, (May 31, 2014), http://applawyers-thebrief.blogspot.com/2014/05/supreme-court-amends-rule-306-appellate.html.

The recent opinion by the United States Court of Appeals for the Seventh Circuit in Banks v. Chicago Board of Education, 2014 US App. LEXIS 7740 (7th Cir., Apr. 24, 2014), serves as a firm reminder that the 28-day time period to file a Rule 59(e) motion is strict and unforgiving.

Banks sued her former employer and supervisor alleging racial discrimination and retaliation in violation of Title 7 of the Civil Rights Act of 1964, as well as related violations of federal and state law. The district Court granted summary judgment in favor of all of the defendants on all claims. Banks then filed a motion to “alter entry of summary judgment” under Rule 59(e). However, Banks filed her motion on the 29th day following the grant of summary judgment. The district court considered the motion on the merits and denied it six days later. Banks filed her notice of appeal within 30 days of the denial of her Rule 59(e) motion.

The Seventh Circuit questioned the scope of its jurisdiction on appeal. The court requested that Banks file an additional brief addressing jurisdiction, but was ultimately not persuaded. The reviewing court concluded that, because the motion to “alter entry of summary judgment” was filed one day late, it did not toll the time to appeal from the summary judgment order. The motion instead would be treated as a Rule 60(b) motion. Appellate review was therefore limited to the denial of relief under Rule 60(b), and Banks forfeited direct review of the order granting summary judgment.

The Seventh Circuit began its Rule 60(b) analysis by noting that relief under that rule is limited, lest it be used to circumvent the time limit set out in Rule 4. A party is entitled to relief under Rule 60(b) when the party raises an issue that could not have been raised under direct appeal. The reviewing court found that the district court did not abuse its discretion in denying Banks’ motion under the Rule 60(b) standard because the only arguments she raised on appeal were ones that could have been raised in the direct appeal, which she forfeited.

The reviewing court also declined to find that Banks’ motion raised “exceptional circumstances” within the catchall provision provided in Rule 60(b)(6). The court noted that this provision had a narrow application designed to avoid Rule 60(b) being used as a substitute for direct appeal.

Finally, the reviewing court found that it made no difference for purposes of appellate jurisdiction that the district court considered the untimely motion on the merits. The district court’s denial of an untimely motion could not vest the Seventh Circuit with jurisdiction over the propriety of the summary judgment ruling.

Recommended Citation: Rosa M. Tumialán, Scope of Appellate Jurisdiction Narrowed by Untimely Rule 59(e) Motion, The Brief, (May 29, 2014), http://applawyers-thebrief.blogspot.com/2014/05/scope-of-appellate-jurisdiction.html.