her subsequent actions which include appearing in front of this Court to argue the motion,
submitting briefs and correspondence regarding the motion to this Court, and not objecting to
this Court's authority to decide the motion for summary judgment even after being informed in
open court that we intended to enter a decision in this matter indicate at the very least that she
implicitly consented to this Court's jurisdiction. See Roell v. Withrow, 123 S. Ct. 1696, 1703-04
(2003) (consent to magistrate judge's jurisdiction can be implied in limited exceptional
circumstances where the party voluntarily participates in proceedings in front of a magistrate
judge).

For the foregoing reasons, Plaintiff's motion to set aside the judgment is denied.

ENTER ORDER:

Qe. OLE.

MARTIN C. ASHMAN
Dated: April 13,2004. United States Magistrate Judge



provides at paragraph 7: "The parties consent to this case being assigned to a magistrate judge for
trial." On October 22, 2003, this case was reassigned to this Court pursuant to Local Rule
73.1(b). The recommendation of reassignment by Judge Norgle indicated that the parties, in the
final pretrial order, had consented to “any and all proceedings including the entry of final
judgment ...." Plaintiff was notified of the Executive Committee's action and did not object to
this reassignment. On November 21, 2003, the parties appeared before this Court for a status
hearing. At that time, the Court set a date for oral argument on Defendants' motion for summary
judgment. Plaintiff did not object to this Court hearing the motion, and in fact subsequently
provided additional briefs as well as correspondence to this Court regarding the motion. On
December 22, 2003, this Court heard oral argument on the motion. Plaintiff participated in the
argument and again did not object to this Court's authority to hear the motion.

We find Plaintiff's belated attempt to argue that she did not consent to this Court's
jurisdiction unpersuasive. After the November status hearing, Plaintiff submitted a document
entitled "Response Hearing Summary Judgment" to this Court. In that document, Plaintiff
argued that "for a Summary Judgment to be heard by this division would amount to a review by
the presently assigned Judge of the Motion to Dismiss, filed by defendant and denied by the
original Judge." It is clear that Plaintiff was arguing that the motion for summary judgment
should not be granted because a motion to dismiss addressing similar issues had already been
denied by Judge Norgle, the "original Judge." Her acknowledgment that this Court is the
"presently assigned Judge" regarding the motion for summary judgment belies her argument that
she did not fully consent to this Court's jurisdiction. At the very least, even if Plaintiff did not

clearly and unambiguously consent to this Court's jurisdiction by signing the final Pretrial Order,

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Copies have been mailed to:

J. TOBIAS DIXON, Esq.
Power & Dixon, P.C.
123 West Madison Street
Suite 900

Chicago, IL 60602

Attorney for Plaintiff

DAVID T. NANI, Esq.
Kralovec & Marquard, Chtd.
55 West Monroe Street
Suite 1000

Chicago, IL 60603

Attorney for Defendants


Biers Order Fong (0597)

United States District Court, Northern District of Ilinois

Name of Assigned Jud; i Sitting Judge if Oth
vor Magistrate Judge Martin C. Ashman than Assigned Judge
CASE NUMBER 02 C 1481 DATE 4/13/2004
CASE Helen E. Henning vs. Maywood Park Trotting Assoc., Inc., et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
@) a Answer brief to motion due, . Reply to answer brief due. :
(4) Oo Ruling/Hearing on set for at
(5) oO Status hearingfheld/continued to] [set for/re-set for] on set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(y) o Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
COFRCP4(m) CO) Local Rule 41.1 CIFRCP41(aX(1) O FRCP41(a)(2).
ao = [Other docket entry] | Enter memorandum opinion and order. Plaintiff's motion to set aside the
judgment [43-1] is denied.
ay [For further detail see order attached to the original minute order.)

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Dosketing to mail notices.

Mail AO 450 form. sama isia Sth
Copy to judge/magistrate Judge. Juno sake"
is depuy's clay ld Leo Oe
initials Date/time received in

central Clerk's ‘Office
RET Pd



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
HELEN E. HENNING, ) ee
) doe tbh
Plaintiff, ) Case No. 02 C 1482 4 4 2004
)
v. ) Magistrate Judge
) Martin C. Ashman
MAYWOOD PARK TROTTING ASSOC., )
INC.; ASSOCIATES RACING )
ASSOCIATION, INC.; HORSEMAN'S )
GUARANTEE CORP., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
On January 12, 2004, this Court entered judgment against Plaintiff, Helen Henning, and

in favor of Defendants, after granting Defendants' motion for summary judgment. Plaintiff
subsequently filed a motion to set aside the judgment on February 9, 2004. Because Plaintiff did
not cite which Rule of Civil Procedure the motion was brought under, the Court allowed her the
opportunity to identify such a rule by February 26, 2004. Plaintiff's one paragraph supplemental
memorandum identified Rule 60(b)(1)-(3). Because none of these three subsections of Rule
60(b) provide grounds for granting Plaintiff relief, her motion is denied.

First, even a cursory review reveals that the requirements of Rule 60(b)(2) are not met.
Plaintiff has not pointed to any newly discovered evidence that could not have been discovered in
time to move for a new trial under Rule 59. See Fed: R. Civ. P. 60(b){2); Bell v. Eastman Kodak
Co., 214 F.3d 798, 801 (7th Cir. 2000) (newly discovered evidence must not have been

discoverable at the time of the original litigation). In her motion, Plaintiff points to an incident

uF



report dated October 17, 2001, which she claims was not disclosed by Defendants and would
have changed the outcome of the summary judgment motion. To the contrary, Defendants’
Motion for Summary Judgment at Exhibit A contains a copy of Plaintiffs Amended Complaint,
the Incident Report dated October 17, 2001, and the Follow-up Report dated October 19, 2001.
Furthermore, the Court's Memorandum Opinion and Order of January 12, 2004, specifically
mentions the October 17th Report at page 7. Even more obviously, this is not "newly discovered
evidence," but rather a report that was in Plaintiff's possession almost from the inception of the
litigation.

Next, the requirements of Rule 60(b)(3) are not met as there is no evidence of fraud,
misrepresentation, or other misconduct on Defendants' part. See Lonsdorf v. Seefeldt, 47 F.3d
893, 897 (7th Cir. 1995). Finally, Plaintiff has not pointed to any mistake, inadvertence, surprise
or excusable neglect that would merit setting aside the final judgment under Rule 60(b)(1). See
Robb v. Norfolk & Western Ry. Co., 122 F.3d 354, 357-58 (7th Cir. 1997). Plaintiff, in a ,
convoluted fashion, argues that she did not consent to this Court's jurisdiction for a hearing on
the motion for summary judgment, but only for the purposes of a trial on the merits, which would
indicate she only gave limited consent. As an aside, if this is the basis for her motion, it should
have been brought under Rule 60(b)(4) as the judgment would have been void. Be that as it may,
we do not find credible her claims that she did not know that she had consented to this Court's
jurisdiction and that she had not intended to consent for all matters including the entry of final
judgment.

Plaintiff's counsel signed the final Pretrial Order in this matter on August 29, 2003, the

same day that Defendants’ motion for summary judgment was filed. The final Pretrial Order

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