Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

John J. Tharp Jr. Sitting Judge if Other

than Assigned Judge

CASE NUMBER 11 C 07934 DATE 9/17/2012

CASE

TITLE

M.G.S. by her Next Friend vs. Carolyn Toerpe, et al.

DOCKET ENTRY TEXT

For the reasons explained below, the Court DENIES plaintiff’s motion [64, 65] to vacate or modify the

Court’s judgment of dismissal pursuant to Fed. R. Civ. P. 60(b).

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT

Nominal plaintiff M.G.S’s representatives move for relieffrom this Court’s judgment of August 6, 2012,

dismissing M.G.S.’s complaint for lack of subject-matter jurisdiction. For the reasons explained below, the

motion is denied.

Federal Rule of Civil Procedure 60(b) permits the Court to “relieve a party or its legal representative from

a final judgment, order, or proceeding” for a variety of reasons. Here, the representatives invoke Rule 60(b)(3)

(“fraud . . ., misrepresentation, or misconduct by an opposing party”) and 60(b)(6)(“any other reason that justifies

relief”). Relief from judgment is an extraordinary remedy that is granted only in exceptional circumstances. Blue

v. Int’l Broth. of Elec. Workers Local Union 159, 676 F.3d 579, 585 (7th Cir. 2012); Bakery Machinery &

Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009). A Rule 60(b) motion is not a

substitute for a timely appeal by a party who disagrees with the ruling or believes it to be erroneous. Kiswani v.

Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009) (“A motion under Rule 60(b) is a collateral attack

on the judgment and the grounds for setting aside a judgment under this rule must be something that could not

have been used to obtain a reversal by means of a direct appeal”). 

The Court discerns no basis for relief based upon fraud, misrepresentation, or misconduct by the

defendants. The basis for the Court’s ruling was jurisdictional, and it was primarily the representatives’ own

allegations in the Complaint that demonstrated that the case was subject to dismissal based upon the probate

exception and the Rooker-Feldman doctrine. The Court also highlighted, but was not called upon to decide, the

problem with the self-appointed representatives suing pro se on behalf of M.G.S., both because M.G.S. already

has a plenary guardian appointed by the state court and because those suing in a representative capacity cannot

proceed pro se. See Mem. Op. & Order, Doc. 61 at 4 n.4 (Aug. 6, 2012). Again, this problem was evident on the

face of the Complaint itself, irrespective of representations made by the defendants. The Court specifically noted

that it accepted all of the representatives’ allegations as true for purposes of resolving the motion, see id. at 3,

11C07934 M.G.S. by her Next Friend vs. Carolyn Toerpe, et al. Page 1 of 2
STATEMENT

essentially eliminating the possibility that the defendants procured the judgment by fraud. Furthermore, the

lengthy Rule 60(b) motion does not allege fraud in the course of these proceedings so much as the same pattern

of alleged misconduct by the defendants that led to the filing of the Complaint. The Court did not address the

merits of the claim in its original decision, and it will not do so here, because subject-matter jurisdiction is

lacking.

Nor does the Court sees any basis for relief under the catch-all provision of Rule 60(b)(6). Here, the

representatives primarily argue that their disability-discrimination and civil rights claims “do in fact fall within

the subject matter jurisdiction of the Federal Courts.” But that is just disagreement with this Court’s application

of the Rooker-Feldman doctrine and the probate exception—that is, argument for the appellate court, not a basis

for relief from the judgment in this Court. They further contend that they have “no remedy whatsoever in state

court,” an exceptional circumstance that entitles them to relief under Rule 60(b)(6). This Court already pointed

out, however, that the Illinois Probate Code does provide procedures for challenging guardianship arrangements.

Although the representatives clearly lack confidence in the fairness of the probate court, this Court cannot assume

federal jurisdiction where it is otherwise lacking because the representatives prefer to litigate in federal court (for

whatever reason). 

The Court notes that the representatives have not timely filed a notice of appeal from the Court’s order

of dismissal for lack of jurisdiction, although they express a desire to appeal in their Rule 60(b) motion. Rule

60(b) Mot., Doc. # 64 at 18 (“How will M.G.S. access the courts to appeal Docket # 61?”). The Court notes that

the filing of the Rule 60(b) motion did not toll the time for filing a notice of appeal because the motion was filed

more than 28 days after the entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi)), and the Rule 60(b) motion

cannot be treated as as a de facto notice of appeal (see Fed. R. App. P. 3(b)(4); Smith v. Barry, 502 U.S. 244, 248

(1992)) because it was filed more than 30 days of the entry of judgment. See Fed. R. App. P. 4(a)(1). The

representatives are advised that they nevertheless have the right to appeal this Order denying their Rule 60

motion; notice of any such appeal must be entered within 30 days of this Order. 

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