6353894v1 838428 51151

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

QUENTIN BULLOCK and JACK REID,

Individually and on behalf of a class,

Plaintiffs,

v.

MICHAEL SHEAHAN, SHERIFF OF COOK

COUNTY, in his official capacity, and COOK

COUNTY,

Defendants.

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Case No.: 04 C 1051

Judge: Elaine Bucklo

FED. R. APP. P. 4(a)(5) MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL

Defendants move the Court, pursuant to Fed. R. App. P. 4(a)(5), to extend time to for

filing a notice of appeal from this Court¶s July 30, 2008, order denying defendants¶ motion for

summary judgment on the issue of Eleventh Amendment immunity. In support of this motion,

defendants state:

1. Defendants moved for summary judgment (Dkt. #327) arguing, inter alia, that

they are immune from suit in this case based on the immunity provided by the Eleventh

Amendment. This Court denied defendants¶ motion for summary judgment in its entirety (Dkt.

#360). Defendants moved pursuant to Fed. R. Civ. P. 54(b) for reconsideration of the denial of

Eleventh Amendment immunity (Dkt. #367).

2. An order denying Eleventh Amendment immunity is immediately appealable.

Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)

(states and state entities claiming to be 3arms of the state ́ may take advantage of collateral order

doctrine to appeal district court order denying claim of Eleventh Amendment immunity).

3. A notice of appeal must be filed within 30 days from the entry of the order

denying summary judgment on the question of immunity. Toeller v. Wisconsin Dept. of

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Corrections, 461 F.3d 871, 873-74 (7th Cir. 2006); Roque-Rodriguez v. Lema Moya, 926 F.2d

103 (1st Cir. 1991). Fed. R. App. P. 4(a)(4)(A) enumerates the types of motion which will toll

time for filing notice of appeal. Needham v. White Laboratories, Inc., 639 F.2d 394, 397 n.3 (7th

Cir. 1981). A motion to reconsider filed pursuant to Fed. R. Civ. P. 54(b) is not among the

enumerated motions ad will not toll the time for filing a notice of appeal. Venen v. Sweet, 758

F.2d 117 (3rd Cir. 1985) (noting motion for reconsideration under Fed. R. Civ. P. 60(b) filed

more than 10 days after entry of order being challenged does not toll time to appeal) .

4. Defendants¶ notice of appeal from this Court¶s denial of Eleventh Amendment

immunity is currently due to be filed on August 29, 2008. Once a notice of appeal is filed,

however, the district court loses jurisdiction to reconsider the denial of immunity. May v.

Sheahan, 226 F.3d 876, 879-81 (7th Cir. 2000). If defendants timely filed a notice of appeal on

August 29, this Court would be deprived of jurisdiction to address defendants¶ motion to

reconsider, which this Court has tentatively set for ruling on September 19.

5. Fed. R. App. P. 4(a)(5) permits this Court to extend the time for filing a notice of

appeal (for up to 30 days) upon a showing of either excusable neglect or good cause. Good

cause exists to extend the time for filing the notice of appeal in this case because an extension of

time of 30 days (to September 29, 2008) would preserve this Court¶s opportunity to reconsider its

ruling before an appeal must be taken to the Seventh Circuit. See Needham v. White

Laboratories, Inc., 454 U.S. 927, 931-32 (1981) (Rehnquist, J., dissenting from denial of petition

for writ of certiorari) (recognizing extension of time under Fed. R. App. P. 4(a)(5) as appropriate

means of preserving right to appeal while awaiting reconsideration of decision by district court).

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WHEREFORE, defendants respectfully request that this Court, pursuant to Fed. R. App.

P. 4(a)(5) extend the time for filing the notice of appeal for 30 days, to and including September

29, 2008.

Steven M. Puiszis

Bernard E. Jude Quinn

Frank J. Marsico

Hinshaw & Culbertson LLP

222 N. LaSalle Street, Suite 300

Chicago, IL 60601-1081

(312) 704-3000

Respectfully submitted,

By: s/Steven M. Puiszis

One of the Attorneys for Defendant,

Michael Sheahan, Sheriff of Cook County

By: s/Patrick Driscoll

Assistant State¶s Attorney, Patrick

Driscoll, Chief Civil Actions Bureau,

Office of the States Attorney of Cook

County

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