61 F.3d 907 (7th Cir. 1995), 94-2623, Welliver v. Rice

Docket Nº:94-2623.
Citation:61 F.3d 907
Party Name:David WELLIVER, Jr., Plaintiff-Appellant, v. Dennis L. RICE, Sheriff of Montgomery County, Indiana, Candy Woodall, William Woodall, William Nave, Richard Shireman, Defendants-Appellees.
Case Date:July 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 907

61 F.3d 907 (7th Cir. 1995)

David WELLIVER, Jr., Plaintiff-Appellant,


Dennis L. RICE, Sheriff of Montgomery County, Indiana, Candy Woodall, William Woodall, William Nave, Richard Shireman, Defendants-Appellees.

No. 94-2623.

United States Court of Appeals, Seventh Circuit

July 10, 1995

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Argued June 13, 1995.

On Appeal from the United States District Court, for the Southern District of Indiana, Indianapolis Division, No. 91 C 1120; Larry J. McKinney, Judge.



Before POSNER, Chief Judge, and CUMMINGS and RIPPLE, Circuit Judges.


Appellant David Welliver brought an action pursuant to 42 U.S.C. § 1983 against appellee law enforcement officers. Appellees moved for summary judgment or judgment on the pleadings. Welliver failed to respond to the motions for summary judgment, and the district court granted all the motions. Welliver moved for relief under Federal Rule of Civil Procedure 60(b)(1) claiming excusable neglect. The district court denied the motion, and Welliver appealed. We affirm.

I. Facts

Welliver brought this action claiming appellees maliciously prosecuted him, harassed him, denied him access to his attorney, and generally attempted to undermine his defense. 1

On August 2, 1993, appellees William Woodall and William Nave moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Welliver responded to this motion on August 17, 1993. On August 16, 1993, appellee Dennis Rice moved for summary judgment. On the same date appellees Candy Woodall and Richard Shireman also filed a summary judgment motion; however, they did not file all their required summary judgment pleadings until August 17, 1993.

On September 23, 1993, long after responses to the summary judgment motions were due under the local rules for the Southern District of Indiana, 2 Welliver moved to extend the time to respond, claiming the appellees had not filed all the necessary pleadings required for a motion for summary judgment under the local rules. 3 Welliver never responded to the motions for summary judgment. On February 4, 1994, the district court denied Welliver's motion for an extension of time to respond. On the same date, the court granted summary judgment to appellee Rice on the ground that Rice had not denied Welliver access to counsel. On February 8, 1994, the district court granted summary judgment to appellees Candy Woodall and Shireman on the basis of the statute of limitations and qualified immunity, and granted judgment on the pleadings to Woodall and Nave on the same grounds. Final judgment was entered in favor of all appellees on February 8, 1994.

On April 8, 1994, with new counsel, Welliver moved pursuant to Federal Rules of Civil Procedure 60(b)(1) for relief from the February 8, 1994 judgment on the grounds of excusable neglect and extraordinary circumstances. 4 The district court denied the motion, concluding that the time for filing responses had passed long before the motion to extend time was filed, and that the motion to extend time was meritless because the record unequivocally indicated all required documents had been filed.

II. Analysis

Welliver makes two arguments on appeal. First, he argues that he could not have answered the motions for summary judgment because none of the appellees filed the required "Statement of Facts." Welliver asserts that it is impossible to respond to a summary judgment motion that does not include such a statement, and that his prior attorney reasonably believed no response was necessary until all required pleadings had been filed. Welliver maintains that this argument also applies to Woodall and Naves' motion for judgment on the pleadings because their motion included and referred to materials outside the pleadings and therefore must be considered a motion for summary judgment. Second, Welliver submits that his prior attorney's incapacitating illness excused the failure to respond, particularly in light of the fact that the prior attorney was a sole practitioner. Welliver believes he should not be penalized for his prior counsel's inaction.

Appellees respond that Welliver has presented no basis for Rule 60(b) relief. They maintain that all necessary pleadings were filed, and that prior counsel's alleged illness and negligent conduct are inadequate to justify relief.

Federal Rule of Civil Procedure 60(b) provides, in relevant portion:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken....

Relief under Rule 60(b) is an extraordinary remedy that is granted only in exceptional circumstances. Dickerson v. Board of Education of Ford Heights, Ill., 32 F.3d 1114, 1116 (7th Cir.1994). A district court's decision to grant or deny Rule 60(b) relief is entitled to great deference, and will be reversed only if the district court abused its considerable discretion. Jones v. Phipps, 39 F.3d 158, 162 (7th Cir.1994). A district court will be found to have abused its discretion only if no reasonable person could agree with the district court. Id.

To be entitled to Rule 60(b) relief, the appellant must show:

1. good cause for the default;

2. quick action to correct the default; and

3. the existence of a meritorious defense.

Jones, 39 F.3d at 162; Nelson v. City Colleges of Chicago, 962 F.2d 754, 755-56 (7th Cir.1992). "Inadvertence" and "excusable neglect" do not include the consequences of negligence or carelessness. Lomas and Nettleton Co. v. Wisely, 884 F.2d 965, 967 (7th Cir.1989). An attorney's failures, including those due to negligence and gross negligence, provide no basis for Rule 60(b) relief. Russell v. Delco Remy Division of General Motors, 51 F.3d 746, 749 (7th Cir.1995); Dickerson, 32 F.3d at 1118; United States v. 7108 West Grand Ave., Chicago, Illinois, 15 F.3d 632, 634 (7th Cir.1994),cert. denied, 114 S.Ct. 2691 (1994); Harold Washington Party v. Cook County, Illinois Democratic Party, 984 F.2d...

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