Plaintiff Who Voluntarily Dismisses Action under Rule 41(a)(1)(A) May Have No Right to Relief under 60(b) — Tactical Decision Based on Misinterpretation of Rules Is Not Inadvertent or Type of Mistake 60(b) Addresses

From Nelson v. Napolitano, 2011 U.S. App. LEXIS 19033 (7th Cir. Sept. 15, 2011):

Nelson, Decatur, Lawson and Carter were Federal Air Marshals. They charged DHS with race- and age-based discrimination, as well as retaliation against certain of the plaintiffs who complained about discriminatory practices. Approximately two years after filing the complaint, one of the plaintiffs, Andre Lawson, was arrested for sexual assault. *** After Lawson was arrested but before he pled guilty, the other plaintiffs, fearing the effect of the arrest on the case and uncertain of the outcome of Lawson's criminal proceedings, decided to request the voluntary dismissal of the lawsuit under Rule 41(a)(1)(A). They were under the impression that they could move under Rule 60(b) to reinstate the suit within one year. They anticipated that the criminal matter would be resolved by then and they could evaluate whether to move forward with their suit at that time. ***

The district court was uncertain whether it retained jurisdiction to consider the Rule 60(b) motion following a voluntary dismissal under Rule 41(a)(1)(A)(i). Although it is true that a suit that has been voluntarily dismissed under Rule 41(a)(1)(A)(i) generally is treated as if it had never been filed, the Supreme Court and this court have recognized the limits of that characterization. For example, the Supreme Court held that "a federal court may consider collateral issues after an action is no longer pending." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990). Thus, after a voluntary dismissal under Rule 41(a)(1)(A)(i), a court may still impose sanctions under Federal Rule of Civil Procedure 11, or adjudicate a criminal contempt charge even after the action in which the contempt arose has been terminated. Cooter & Gell, 496 U.S. at 395-96. The Court noted that the purpose of Rule 41(a)(1) is to limit a plaintiff's ability to dismiss an action. 496 U.S. at 397. Prior to the promulgation of Rule 41, liberal procedural rules allowed plaintiffs to dismiss as a matter of right until the entry of the verdict. Rule 41(a)(1) preserved a plaintiff's right to dismiss an action without the permission of the court or the agreement of the adverse party only during the (usually) brief period before the defendant answered or moved for summary judgment, before the defendant had made a significant commitment of time and money. Cooter & Gell, 496 U.S. at 397. "Rule 41(a)(1) was not designed to give a plaintiff any benefit other than the right to take one such dismissal without prejudice." Id. The Court noted that the Rule 41(a)(1) and Rule 11 shared the goal of curbing abuses of the judicial system. Allowing a plaintiff to avoid Rule 11 sanctions by taking a dismissal would eliminate the incentive for litigants to investigate carefully before filing papers. Cooter & Gell, 496 U.S. at 397-98. The Court therefore concluded that a plaintiff's voluntary dismissal under Rule 41(a)(1) did not divest a district court of jurisdiction to consider a defendant's Rule 11 motion. 496 U.S. at 398. See also Szabo Food, 823 F.2d at 1077-79 (noting the limits to treating a Rule 41(a)(1) dismissal as if the case had never been brought and holding that courts could award fees under Rule 11 or issue sanctions for contempt of court even if the plaintiff had voluntarily dismissed the suit).

A voluntary dismissal pursuant to Rule 41(a)(1)(A)(i), therefore, does not deprive a district court of jurisdiction for all purposes. Citing McCall-Bey, DHS now concedes that a district court retains jurisdiction to consider a Rule 60(b) motion following a voluntary dismissal. In McCall-Bey, we said:

An unconditional dismissal terminates federal jurisdiction except for the limited purpose of reopening and setting aside the judgment of dismissal within the scope allowed by Rule 60(b).

777 F.2d at 1190. DHS offers the example of a defendant faking his own death with a fraudulent death certificate in order to induce a plaintiff to voluntarily dismiss. In those circumstances, DHS posits that, if all other requirements of Rule 60(b) were met, the district court would be able to grant relief to the plaintiff. We agree that there may be instances where a district court may grant relief under Rule 60(b) to a plaintiff who has voluntarily dismissed the action. ***

In this case, however, the district court did not abuse its discretion in denying the plaintiffs' Rule 60(b) motion. Relief under Rule 60(b) is an extraordinary remedy granted only in exceptional circumstances. Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010); Eskridge v. Cook County, 577 F.3d 806, 809 (7th Cir. 2009). We review the district court's decision to deny a Rule 60(b) motion for abuse of discretion. Wickens, 620 F.3d at 758; Eskridge, 577 F.3d at 808-09. Rule 60(b) allows a court to relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). The plaintiffs listed all of the subsections of Rule 60(b) in their motion in the district court but did not specify which applied. Instead, they contended that they voluntarily dismissed their suit for equitable and tactical reasons related to their surprise over the arrest of one of the plaintiffs. Because the dismissal was without prejudice, they assumed that they were entitled to reinstatement so long as they moved within the one-year period specified in Rule 60(c). Rule 60(c) provides that all motions under Rule 60(b) must be brought within a reasonable time and, for the first three reasons set forth in the rule, no more than one year from the entry of the judgment or order or the date of the proceeding. Perhaps by citing the one-year limit set forth in Rule 60(c), the plaintiffs meant to signal reliance on one of those first three reasons in Rule 60(b). They failed, however, to set forth any argument or cite any cases supporting relief on any of those grounds. On appeal, the plaintiffs confuse the matter further by claiming that they relied on Rules 60(b)(1), 60(b)(2) and 60(b)(6) in the district court, and that they "could have relied on the language of Rule 60(b)(5)." Appellants' Brief, 11-12. Apparently, they expected the district court to determine which section applied and to manufacture their argument for them. They failed at any point to make a cogent argument for Rule 60(b) relief under any provision, and that was reason enough for the district court to deny the motion. United States v. Thornton, 642 F.3d 599, 606 (7th Cir. 2011) (undeveloped and unsupported arguments may be deemed waived); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (a skeletal argument does not preserve a claim for appeal). Neither the district court nor this court are obliged to research and construct legal arguments for parties, especially when they are represented by counsel. Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010), amended on denial of reh'g, 387 Fed. Appx. 629 (7th Cir. 2010), cert. denied, 180 L. Ed. 2d 245, 2011 WL 2175218 (2011). The plaintiffs assumed that a Rule 60(b) reinstatement would be granted as a routine matter after a voluntary dismissal, and for that reason they made no attempt to demonstrate that exceptional circumstances warranted relief from the dismissal. This was simply a mistake, and a court is not obliged to grant relief from a lawyer's mistaken reading of a rule or statute. Eskridge, 577 F.3d at 810; Webb v. James, 147 F.3d 617, 622 (7th Cir. 1998).

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