plaintiff's present motion is untimely and will be denied on that
ground,
Alternatively, even if the merits of the present motion

were to be considered, it would be denied. The Seventh Circuit's

affirmance recites the repeated delays. ; nd failures to appear
that were the basis for granting the! mot 4on to dismiss. A
listing of that conduct need not be repeated here. The only fact
that plaintiff questions in his present motion is who was
responsible for cancelling plaintiff's October 10, 2002
deposition of Carlos Reyes. Defendants represented in their
motion to dismiss that plaintiff cancelled the deposition of
Reyes. Plaintiff now contends, as supported by his counsel's
affidavit, that defendants cancelled the Reyes deposition after
defendants moved the deposition of plaintiff from October 9 to
October 10. That is not a material fact. Plaintiff desired to
depose Reyes. Plaintiff's failure to take that deposition, even
if due to plaintiff's fault, would not be (and was not) a basis
for dismissing the case. At most, it would have resulted in
Plaintiff not being permitted to take that deposition. Instead,
the dismissal was based on plaintiff's failure to cooperate in
providing discovery to defendants. Even if the merits of the
Rule 60(b) motion could be considered, no basis is stated for

granting relief.


made the motion within one year, satisfying that part of the
timeliness requirement for a Rule 60(b) (1) or Rule 60(b) (3)
motion.

That does not end the inquiry regarding timeliness; the
motion still must be made within a reasonable time. Here,
plaintiff does not make any arguments that were not available to
him at the time the motion to dismiss was presented. The alleged
misrepresentation by counsel concerns. facts known to plaintiff
(through counsel) and the purportedly false facts were expressly
stated in defendants' written motion to dismiss. At the time the
motion was presented, plaintiff's primary attorney was on
vacation and instead sent an attorney who had no familiarity with
the case. The primary attorney still could have advised the
stand-in attorney of the facts of the case. But even assuming
the present factual contention could not have been raised prior
to the entry of judgment, within 10 court days after December 1,
2002 plaintiff could have presented additional facts in a Fed. R.
Civ. PB. 59(e) motion to vacate the judgment. And even after the
10-day period for a Rule 59(e} motion, plaintiff could have
brought a Rule 60(b) motion at any time, even while the appeal
was pending. Waiting one year to bring the motion was not a
reasonable time. Since bringing the motion within a reasonable

time is a requirement under all subsections of Rule 60(b),


In defendants' answer to the Rule 60(b) motion, they

raise the possibility of Rule 11 sanctions. That request is/'not
“ai)

considered because any motion for sanctions under Rule 11 mus

raised in a separate motion. See Fed. R. Civ. P. 116) 1) R).

IT IS THEREFORE ORDERED that plaintiff's motion to vacate
ee

judgment [45] is denied.

ENTER:

Mb ppeuiet

UNITED STATES DISTRICT

DATED: JANUARY PL. 2004


eder Forms (06/97)

United States District Court, Northern District of Hlinois

Mor Maghtrate dodge | __ WILLIAM'T. HART “than Aneel Judge
ASE NUMBER 01 C 9400 DATE JANUARY 2 , 2004
CASE BRIAN ALSTON v. DEUTSCH BORSE, AG and
TITLE DEUTSCH BOSE SYSTEMS, INC.
In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
‘OTION: of the motion being presented.}
\OCKET ENTRY:
b a Filed motion of [ use listing in “Motion” box above.]
2) oO Brief in support of motion due ___.
3) im} Answer brief to motion due__. Reply to answer briefdue___—.
4) Qa Ruling/Hearing on setfor at
‘S) Q Status hearing[held/continued to] [set for/re-set for] on setfor_ at.
6 is} Pretrial conference(held/continued to] [set for/re-set for]on__——ssetfor_—— at
() o Trial[set for/re-set for]on__—__at
(8) Oo [Bench/Jury trial} [Hearing] held/continuedto___at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) CO Local Rule 41.1 OCOFRCP41(a\(1) OO FRCP41(a)(2).
Qo = {Other docket entry] Plaintiff's motion to vacate judgment [45] is denied.

\

(11) W@W [For further detail see attached Memorandum Opinion and Order.]

No notices required, advised in open court.

No notices required.

wv | Notices maited by judge’s staff.

Notified counsel by telephone.

‘Docketing to mail notices, . ween

Mail AO 450 form. aa

Copy to judge/magistrate judge. .
courtroom
cw deputy’s _—
initials
Date/time received in
central Clerk's Office



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

BRIAN ALSTON,
Plaintiff,
v. No. 01 C 9400

DEUTSCH BORSE, AG and
DEUTSCH BOSE SYSTEMS, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER DOCKET Ep
_ YAN 23 2094
After repeated failures and delays on the part of

plaintiff regarding responding to written discovery, appearing
for his own deposition, appearing to take the deposition of a
defendant witness, and appearing for court hearings, the sanction
of dismissal was imposed. Although defendants' motion for
dismissal was presented in court on November 27, 2002, judgment
as to the dismissal was not entered on the docket until
December 1, 2002. On November 4, 2003, the Seventh Circuit
issued an unpublished order affirming the dismissal. Alston v.
Deutsch Borse, AG, 80 Fed. Appx. 517, 2003 WL 22535210 (7th Cir.
Nov. 4, 2003). On December 1, 2003, plaintiff filed his Rule
60(b) motion to vacate the judgment, primarily reasserting the

arguments he raised on appeal and adding a contention regarding

Zu


an alleged misrepresentation that defendants had made in support
of the motion to dismiss that had been granted. The motion was
presented on December 16, 2003. Plaintiff denominates his motion
as being pursuant to subsections (1), (3), and (6) of Fed. R.
Civ. P. 60(b).

Motions under Rule 60(b) (1) and (3) must be "made” both
{a) "not more than one year after the judgment . . . entered" and
(b) “within a reasonable time." Fed. R. Civ. P. 60(b). Motions
under Rule 60(b) (6) have no specified maximum time limit, but |
must be made "within a reasonable time." Id. The parties argue
over whether plaintiff's present motion was brought within one
year from the November 27, 2002 ruling granting the motion. That
dispute starts from a false premise. The one-year time period is

Measured from the December 1, 2002 entry of judgment, not the’

November 27, 2002 ruling itself. See Marquip, Inc. v. Fosber

America, Inc., 198 F.3d 1363, 1369 (Fed. Cir. 1999); Ceglarek v.
i
John Crane, Inc., 2000 WL 1745183 *2 (N.D. Ill. Nov. 27, 2000);

Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal

Practice & Procedure § 2866 at 390 (2d ed. 1995). The motion is

"made" when filed. See Berwick Grain Co. v. Illinois Department

of Agriculture, 189 F.3d 556, 560 (7th Cir. 1999); v oJ.

Reynolds Tobacco Co., 1999 WL 1144830 *i (N.D. Ill. Dec. 39,

1999). Since judgment was entered on December 1, 2002 and

plaintiff filed his rule 60(b) motion on December 1, 2003, he