rlinute Que Form (06/97)

United States District Court, Northern District of Illinois

(9)

Name of Assigned Jud 2 Sitting Ji eif O
npr Magistrate Judge James B. Moran than Assigned Judge
CASE NUMBER 01 C 8375 DATE 2/19/2003
CASE Properties Unlimited, Inc. Vs. Cendant Mobility Services etc.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3¢d party plaintiff, and (b) state briefly the nature

of the motion being presented.]

qd)

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
a) Qo Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due___
(4) im Ruling/Hearing on setfor_ at
6) Oo Status hearing[held/continued to] {set for/re-set for]on___setfor___at
(6) o Pretrial conference(held/continued to] {set for/re-set forlon__——ssetfor_— at.
(a) oO Trial[set for/re-set for]on ss at__
(8) a [Bench/Jury trial] [Hearing] held/continued to____att
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QERCP4(m) [Local Rule 41.1 COFRCP41(a)(1) [2 FRCP41(a)(2).
(10) «x [Other docket entry] | Enter Memorandum Opinion and Order. Plaintiffs motion for relief from

judgment under Fed.R.Civ.P. 60(b)(6) or in the alternative to correct or modify the record under

Fed.R.App.R. 10(E) is granted.

a [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.
Docketing to mail notices.
Mail AO 450 form, JRA ptt ene cae

Copy to judge/magistrate judge.

dare mailed notice

courtroom
WAH deputy's
initials

Date/time received in .
central Clerk’s Office ring opus



Sn

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

PROPERTIES UNLIMITED, INC., an )
Illinois corporation, )
)
Plaintiff, )
)
vs. ) No. 01. € 8375 _
) Re
CENDANT MOBILITY SERVICES, a ) Des 3
Delaware corporation, et al., ) ceB 2S aaa
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

This court granted defendants’ motion to dismiss in a Memorandum Opinion and
Order on May 24, 2002, terminating the case. That determination was entered on the docket
on May 28, 2002. Plaintiff moved for reconsideration on June 13, 2002, more than ten days
after the dismissal. The motion thus had to be pursuant to Federal Rule of Civil Procedure
60(b), and that meant that the appeal time continued to run. Stone vy. Immigration and
Naturalization Service, 514 U.S. 386 (1995). Concerned about that, plaintiff, on June 18, 2002,
moved, among other things, for extension of the time to appeal. That was granted on June 19,
2002, which meant that the time to appeal was extended to July 26, 2002.

The modified briefing schedule took the briefing past that date, and on July 24, 2002,
since we had not yet ruled, we struck the May 24, 2002, Memorandum Opinion and Order.
By that time we were convinced that the motion for reconsideration merited careful
consideration and, if we were to change our views, it made no sense to burden the Court of
Appeals with an unnecessary appeal. Accordingly, at a time when an appeal was still timely,
it was our intention to vacate any appealable order and to postpone any appeal until the ruling
upon the motion for reconsideration determined whether the dismissal would stand.

We denied the motion for reconsideration on the merits ina Memorandum Opinion and



ae

Set

No. 01 C 8375 Page 2

Order on September 25, 2002, after both plaintiff and defendants had fully briefed the
substance of that motion. Plaintiff then filed an appeal. Defendants thereafter raised before
the Court of Appeals the timeliness of the appeal. That led plaintiff to file the present motion,
grounded upon Fed.R.Civ.P. 69(b) and Federal Rule of Appellate Procedure 10(e), to clarify
that the judgment flowing from the May 24, 2002, Memorandum Opinion and Order should
have been or had been vacated. We grant the motion.

Defendants contend that any appeal from the May 24, 2002, Memorandum Opinion and
Order is untimely because the Judgment Order of that date was not expressly vacated by the
order of July 24, 2002. This is a new contention and one that could have been raised during
the briefing of the motion for reconsideration. In this court defendants asked for a substantive
ruling on the motion, and they got it. They got it because the July 24, 2002, order expressly
struck the May 24, 2002, Memorandum Opinion and Order (emphasis supplied). We acted
on that date because the time to appeal a final judgment, once expired, cannot be revived.

Gleash v. Yuswak, 308 F.3d 758 (7 Cir, 2002); Cody, Inc. v. Town of Woodbury, 179 F.3d 52

(2d Cir. 1999), and we had not yet had an opportunity to rule. We intended that the “Order”
struck on July 24, 2002, encompass the Judgment Order (what else could it mean?), and we
believe that Rule 60(b) relief, which we have power to grant despite the pendency of the
appeal, Stone v. INS, supra, and Fed.R.App.P 10(e), both provide ample justification for

granting the motion.

JAMES B. MORAN
ior Judge, U. S. District Court

Fell. 19 » 2003.