that is of no significance whatever--this Court regularly sets
such initial status dates 49 days after a complaint is filed,

being fully aware that the set date has no bearing on the due

date of a responsive pleading.?

All of this bespeaks lawyer negligence on Mikus' part, thus
returning this opinion's focus to the concept of “excusable
neglect” in Rule 60(b) (1), a subject on which it must be said
that courts have given mixed signals. But speaking in the
related context of Bankruptcy Rule 9006(b) (1), which contains
identical “excusable neglect” language in addressing permission
for the late filing of a proof of claim, the Supreme Court has

said in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507

U.S. 380, 394 (1993):
Thus, at least for purposes of Rule 60(b) “excusable
neglect” is understood to encompass situations in which
the failure to comply with a filing deadline is
attributable to negligence.
And on that score 11 Charles Wright, Arthur Miller and Mary Kay
Kane, Federal Practice and Procedure: Civil 2d §2857, at 258 (2d

ed. 1995) counsels:

1 For example, when a plaintiff requests a waiver of
service rather than actually serving a defendant, the status date
obviously arrives before any responsive pleading is due (and most
frequently before one has been filed). Often only plaintiff's
lawyer shows up on the status date in that situation.

Conversely, when there has been actual service, a defendant who
ignores the duty to respond may (as here) be vulnerable to the

entry of a default judgment before that initial status hearing

date arrives.



process on November 20, he spoke with attorney Mikus about
handling his representation in this case. Mikus responded that
he would represent Beck if he could, but he wanted to make sure
that no conflict of interest was involved as between his prior
representation of Trend and any current representation of Beck.
In addition, Mikus wished to check into the availability of
insurance coverage.

What Mikus then did was to leave a voicemail message for
FlexiCorps' counsel that he was looking into the possibility of
representing Beck, a message that FlexiCorps' counsel responded
to by leaving an acknowledgment of its receipt on Mikus'
voicemail. But what Mikus did not do after he had later
satisfied himself that he could in fact represent Beck was to
file an appearance, let alone an answer, in this lawsuit.
Instead Mikus simply looked at the docket, learned that this
Court had earlier set an initial status hearing date of
December 30 and decided that he would show up at that time
(according to Mikus, he was away from his office between
December 19 and December 30).

Thus FlexiCorps' counsel was entirely within his rights in
proceeding to obtain the default judgment as he did and when he
did. Beck had not yet appeared, and no request for an extension
had then been communicated to FlexiCorps' counsel. As for this

Court's earlier scheduling of a December 30 initial status date,



As long as the movant seeking timely relief has a

meritorious defense, doubt should be resolved in favor

of a motion to set aside the judgment.

In this instance, as already indicated, Judge Kennelly
denied a summary judgment in Trend's favor because such a paper
disposition was precluded by the existence of genuine issues of
material fact. But in so doing Judge Kennelly identified a
potential version of the facts that would appear equally
applicable to Beck's defense in this case and, if it were to
prevail, would satisfy the concept of an arguably meritorious
defense.?

This Court therefore does resolve the doubts in favor of
Beck's current motion, and it grants the relief of setting aside
the default judgment. But because FlexiCorps' conduct in
pursuing the matter to judgment was entirely reasonable and was
occasioned by the already-described negligence on the defense
side of the dispute, it would not be fair to burden FlexiCorps
with having to swallow the expense of its legitimate effort.
Hence the granting of Beck's motion to vacate is conditioned upon
his payment of FlexiCorps' reasonable attorneys' fees and other

expenses ascribable to its pursuit and obtaining of the default

? One of FlexiCorps' filings in response to Beck's current
motion is its own motion to strike the affidavits and amended
affidavits of Mikus and Beck. Though there is force in some of
the objections advanced by FlexiCorps in that respect, in light
of the conclusion reached here that motion to strike is denied as
moot.



‘e wa
Minute"Qeder Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge if Other
vor Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 02 C 8167 DATE 1/30/2003
CASE Flexicorps, Inc. vs. Charles Beck
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

of the motion being presented.]

qi)

MOTION:
DOCKET ENTRY:
ab) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearingon set for_— at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on___—sset fort
(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—s—saat__—.
(7) o Trial[set for/re-set for]on__—at__
(8) oO [Bench/Jury trial] [Hearing] held/continuedto at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4¢m) O Local Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
ao) ff [Other docket entry) Enter Memorandum Opinion and Order. Beck’s motion to vacate is granted.

(9-1) The granting of Beck’s motion is conditioned upon his payment of FlexiCorps’ reasonable attorneys’
fees and other expenses ascribable to its pursuit and obtaining of the default judgment. Finally Beck is
ordered to answer the Complaint on or before February 14, 2003. This action is set for a status hearing
at 9 am. February 28, 2003, before which the parties are ordered to comply with this Court’s initial

November 21, 2002 scheduling order.

| [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. .
number of notices

Document
Number

Notices mailed by judge's staff. WAN 3.1 2002

Notified counsel by telephone.

dare dopkered

Docketing to mail notices.

Mail AO 450 form. iMAph

Copy to judge/magistrate judge.

>
it late mailed noti
courtroom © 1 "4 date mayied notice
SN deputy’s
initials

si7 Un 7; Datestime received in
central Clerk’s Office Vimoatepatyms,'=



judgment, a subject on which the parties are directed to confer
promptly in an effort to reach agreement on the quantification of
that amount--or if that cannot be accomplished, to identify for
this Court any areas of disagreement to enable this Court to
resolve them.

Finally, Beck is ordered to answer the Complaint on or
before February 14, 2003. This action is set for a status
hearing at 9 a.m. February 28, 2003, before which the parties are
ordered to comply with this Court's initial November 21, 2002

scheduling order.

Celle. Xd

Milton I. Shadur
Senior United States District Judge

Date: January 30, 2003


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FLEXICORPS, INC.,
Plaintiff,

Vv.

No. 02 C 8167 DOCKETED

CHARLES BECK, JAN 3 1 2003

Defendant.

MEMORANDUM OPINION AND ORDER

On December 23, 2002 this Court entered a judgment for
$659,344 plus $4,040.42 in attorneys' fees and expenses in favor
of FlexiCorps, Inc. (“FlexiCorps”) against defaulted defendant
Charles Beck (“Beck”). In so doing it required FlexiCorps' Chief
Executive Jeff Kubas to establish its damages sustained by reason
of the assertedly wrongful termination of its business
relationship with Trend Technologies, Inc. (“Trend”)--and to that
end, to differentiate between (1) the business expenses that
FlexiCorps would have sustained whether or not it had retained
the Trend business and (2) the additional business expenses that
FlexiCorps would have incurred in conjunction with its
anticipated continuation of that business.

Although Beck had been served with process on November 20,
so that his appearance and answer were required to have been
filed by December 10, he had failed to do so before
December 23--hence the default. Then on December 30 Beck, acting

through attorney Stephen Mikus ("“Mikus”), filed a motion to



vacate the default judgment, setting a January 6, 2003
presentment date for that motion. This Court established a
schedule for further submissions by the parties in conjunction
with the motion, and they have put forth their best positions on
that score.

Although Beck's motion to vacate was tendered within the
time frame that would have permitted its filing under Fed. R.
Civ. P. (“Rule”) 59(e), Mikus has invoked Rule 60(b) instead, and
this Court therefore treats with the matter under that aegis.
That requires the motion to pass muster under the “excusable
neglect” rubric of Rule 60(b) (1), a subject to which this opinion
now turns.

Attorney Mikus had earlier been involved as Trend's’ counsel
in FlexiCorps' initial lawsuit against it and other defendants
(Case No. 01 € 1754, assigned to this Court's colleague Honorable
Matthew Kennelly). After Trend lost its motion for summary
judgment in that action, so that a trial of that lawsuit was
anticipated, Trend filed for bankruptcy in the United States
Bankruptcy Court for the District of Delaware (Case No. 02-
13283). FlexiCorps then instituted this action against Beck, who
had been Trend's Plant Manager and was assertedly the active
decisionmaker in the cancellation of the relationship between
FlexiCorps and Trend about which FlexiCorps now complains.

According to Beck's motion, as soon as he was served with