Alexan v. Burke

• Decision Date: 04 August 2014
• Docket Number: No. 11 C 05292,11 C 05292
• Citation: 62 F.Supp.3d 784
• Parties: Abraham Alexan, Plaintiff, v. Chicago Police Officer Burke, Star #8447; Chicago Police Officer Odegard, Star #13258; individually and as employee/agents for the City of Chicago, a municipal Corporation; Roman Uniat; and Lisa Wood, Defendants.
• Court: U.S. District Court — Northern District of Illinois

62 F.Supp.3d 784

Abraham Alexan, Plaintiff

v.Chicago Police Officer Burke, Star #8447; Chicago Police Officer Odegard, Star #13258; individually and as employee/agents for the City of Chicago, a municipal Corporation; Roman Uniat; and Lisa Wood, Defendants.

No. 11 C 05292

United States District Court, N.D. Illinois, Eastern Division.

Signed August 4, 2014

MEMORANDUM OPINION AND ORDER

Chief Judge RUBEN CASTILLO, United States District Court

Plaintiff Abraham Alexan¹ filed an action against Chicago Police Officers Burke, Star # 8447 (“Burke”), and Odegard, Star # 13258, (“Odegard”) (collectively, “CPD Officers”), and Roman Uniat and Lisa Wood, alleging false arrest, conspiracy, and failure to investigate in violation of 42 U.S.C. § 1983 (“Section 1983 ”),² and malicious prosecution in violation of Illinois law. (R. 1, Compl.) Plaintiff's counsel filed a motion for voluntary dismissal of the CPD Officers on January 24, 2012, (R. 15, Pl.'s Mot. Dismiss Officers), which the Court granted that day, (R. 17, Min.Entry). On March 1, 2012, Plaintiff's counsel reported to the Court that the case had been settled, and the Court dismissed the case with prejudice. (R. 18, Min.Entry.) Presently before the Court is Plaintiff's motion to vacate the Court's dismissal of the case pursuant to Federal Rule of Civil Procedure 60(b). (R. 19, Pl.'s Mot.) For the reasons set forth below, the Court denies in part and grants in part Plaintiff's motion.

BACKGROUND

Plaintiff was the office manager for Andersonville Dental, located at 5206 North Paulina Street in Chicago, Illinois. (R. 1, Compl.¶ 8.) Uniat and Wood were patients at Andersonville Dental. (Id. ¶ 9.) On or about June 8, 2010, Plaintiff asked Uniat to leave the dental office due to Uniat's disruptive behavior and inappropriate language. (Id. ¶ 10.) After Uniat left, Wood called the office and threatened to shut the business down and have the employees arrested. (Id. ¶ 12.) Later the same day, the CPD Officers arrested Plaintiff at the dental office. (Id. ¶ 14.) Plaintiff alleges that he asked the CPD Officers to view the security tapes to prove that no crime had been committed, but the CPD Officers refused to do so. (Id. ¶ 15.) Plaintiff alleges that Uniat, Wood, and the CPD Officers conspired to intimidate, embarrass, and humiliate Plaintiff by arresting him and falsely charging him. (Id. ¶ 13.)

Plaintiff filed his complaint on August 4, 2011. (Id. ) The CPD Officers filed their answer on November 11, 2011. (R. 11, CPD Officers' Answer.) Uniat and Wood have not entered appearances or responded in any manner to the complaint. Plaintiff's counsel at the time, Jeffrey Neslund, began to lose confidence in the merit of Plaintiff's claims against the CPD Officers after taking Plaintiff's deposition, receiving discovery documents from the Chicago Police Department, interviewing Uniat, and researching applicable case law. (R. 42, Neslund Dep. Tr. at 15:13–16:21, 18:1–10, 21:13–22:10.) Neslund therefore moved to voluntarily dismiss the CPD Officers from the lawsuit with prejudice on January 24, 2012, (R. 15, Pl.'s Mot. Dismiss Officers), which the Court granted, (R. 17, Min.Entry). The Court scheduled a settlement conference for March 1, 2012, but the conference was canceled after Neslund reported to the Court that the case had settled. (R. 18, Min.Entry.) Accordingly, the Court dismissed the case with prejudice on March 1, 2012. (Id. )

Neslund subsequently withdrew from the case as Plaintiff's attorney, (R. 25, Min.Entry), and Plaintiff retained new counsel, (R. 19–1, Ex. 1, Alexan Aff. ¶ 4). Plaintiff alleges that he was unaware that Neslund had settled the case or dismissed any Defendants and that he never authorized such actions. (Id. ¶¶ 6–7.) Plaintiff further alleges that he was unaware that the Court dismissed the case until his current counsel notified him on or about March 21, 2012. (Id. ¶ 8.) Plaintiff filed his motion to vacate the Court's dismissal of his case on March 30, 2012. (R. 19, Pl.'s Mot.) The CPD Officers filed their response on April 9, 2012. (R. 24, CPD Officers' Resp.) Plaintiff replied on May 1, 2012. (R. 26, Pl.'s Reply.) On May 15, 2012, the CPD Officers filed a sur-reply. (R. 30, CPD Officers' Sur-reply.) On March 5, 2013, the Court ordered an evidentiary hearing to determine the full extent of Neslund's authority to settle Plaintiff's suit, (R. 31, Min.Entry), which was held on April 29, 2013, (R. 35, Min.Entry). Counsel for both Plaintiff and the CPD Officers subsequently deposed Neslund on May 22, 2013. (R. 42, Neslund Dep. Tr.) Plaintiff filed a brief in further support of his motion to vacate on June 14, 2013. (R. 41, Pl.'s Br.)

LEGAL STANDARD

Rule 60(b)(1) permits relief for judgment on grounds of mistake, inadvertence, surprise, or excusable neglect. Fed.R.Civ.P. 60(b)(1). Rule 60(b)(1) encompasses mistakes by judicial officers as well as litigants. Brandon v. Chi. Bd. of Educ., 143 F.3d 293, 295 (7th Cir.1998) (citing Wesco Prods. Co. v. Alloy Auto. Co., 880 F.2d 981, 984–85 (7th Cir.1989) ). “Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances.” Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir.2006) (quoting Karraker v. Rent–A–Center, Inc., 411 F.3d 831, 837 (7th Cir.2005) ). The remedy is appropriate where “the [c]ourt has patently misunderstood the party, or has made a decision outside the adversarial issues presented to the [c]ourt by the parties, or has made an error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983) ). Once a proper showing of mistake, inadvertence, surprise or excusable neglect has been made by the movant, however, Rule 60(b) is to be liberally interpreted in favor of setting aside judgments. Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 795 (7th Cir.1980). The Seventh Circuit has “characterized the district court's considerable latitude in making its decision [on a Rule 60(b) motion] as ‘discretion piled on discretion.’ ” Wehrs v. Wells, 688 F.3d 886, 890 (7th Cir.2012) (quoting Swaim v. Moltan Co., 73 F.3d 711, 722 (7th Cir.1996) ).

ANALYSIS

Plaintiff argues that Neslund lacked the authority to dismiss the CPD Officers and therefore the Court should vacate its January 24, 2012 Order. (R. 19, Pl.'s Mot. ¶ 2.)

In addition, Plaintiff argues that the Court's dismissal of its suit was due to a miscommunication and thus constitutes a “mistake” under Rule 60(b)(1). (R. 19, Pl.'s Mot. ¶ 4.) The Court addresses each argument in turn.

I. Whether the Court may vacate its order to dismiss the CPD Officers

Plaintiff argues that Neslund lacked the authority to dismiss the CPD Officers because Plaintiff never consented to the Officer's dismissal from the case. (R. 19, Pl.'s Mot. ¶ 2.) The CPD Officers argue that Plaintiff has failed to offer any proof, other than his own affidavit, that Neslund lacked authority to dismiss the CPD Officers. (R. 24, CPD Officers' Resp. at 3.)

A litigant's attorney of record is presumed to have authority to compromise and settle litigation; however, “a judgment entered upon an agreement by the attorney may be set aside on affirmative proof that the attorney had no right to consent to its entry.” Bradford Exch. v. Trein's Exch., 600 F.2d 99, 102 (7th Cir.1979) (citing United States v. Beebe, 180 U.S. 343, 21 S.Ct. 371, 45 L.Ed. 563 (1901) ; Thomas v. Colo. Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir.1966) ; In re Gsand, 153 F.2d 1001 (3d Cir.1946) ). Once the court affords the movant an opportunity to present affirmative proof at a hearing, “the movant bears a heavy burden of showing that counsel lacked authority to enter into the judgment.” Smith v. City of Chi., 221 F.3d 1339, at *2 (7th Cir.2000) (unpublished); see also U.S. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL–CIO, 986 F.2d 15, 20 (2d Cir.1993) (“[t]he burden of proving that an attorney entered into a settlement agreement without authority is not insubstantial”); Greater Kan. City Laborers Pension Fund v. Paramount Indus., Inc., 829 F.2d 644, 646 (8th Cir.1987) ; Sur. Ins. Co. of Cal. v. Williams, 729 F.2d 581, 583 (8th Cir.1984).

The Court conducted an evidentiary hearing, in part, to inquire into Neslund's authority to dismiss parties and claims. (R. 35, Min.Entry.) Neslund attested that prior to moving to dismiss the CPD Officers, he discussed the matter with Plaintiff. (R. 42, Neslund Tr. at 18:3–10, 34:12–17.) Plaintiff alleges, however, that Neslund never discussed dismissing the CPD Officers with him, and, therefore, Neslund lacked the authority to dismiss them. (R. 41, Pl.'s Br. at 4–5.) Unfortunately, the only evidence Plaintiff has adduced to support his assertion is his own affidavit and testimony during the evidentiary hearing. “[Movants] may not rely on their conclusory affidavit, but must establish through competent evidence that their attorney lacked actual, implied, or apparent authority to stipulate to an entry of judgment.” Smith, 221 F.3d 1339, at *2 (quoting Williams, 729 F.2d at 583 ). Plaintiff's evidence is wholly inadequate to meet the “heavy burden” of demonstrating that Neslund lacked authority to dismiss the CPD Officers. See id. The Seventh Circuit has affirmed the grant of a Rule 60(b) motion for relief from a judgment to which the attorney's counsel lacked authorization to consent to when the lack of authorization resulted from a misunderstanding or miscommunication between client and attorney, see, e.g., Bradford, 600 F.2d at 102, and between two attorneys representing a single client, see, e.g., Widman Trucking & Excavating, 627 F.2d at 796–97. In each of those cases, the movants offered uncontroverted, affirmative proof detailing the nature of the miscommunication. Bradford, 600 F.2d at 102 ; Widman Trucking & Excavating, 627 F.2d at 797.

The instant case is similar...