NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 29, 2012
Decided August 7, 2012
Before
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐1623
Appeal from the
ANGELA EDWARDS‐BROWN, United States District Court for the
Plaintiff‐Appellant, Northern District of Illinois,
Eastern Division.
v.
No. 09 C 1022
CRETE‐MONEE 201‐U SCHOOL
DISTRICT, et al., Matthew F. Kennelly,
Defendants‐Appellees. Judge.
O R D E R
In early 2009 Angela Edwards‐Brown (“Brown”) sued the Crete‐Monee 201‐U School
District and other defendants alleging constitutional violations arising from the death of her
son in June 2008. After several iterations of pleadings and temporary representation by two
pro bono attorneys recruited by the district court, Brown filed a pro se motion voluntarily
dismissing her case on October 26, 2009. The district court granted the motion in an order
entered on November 17, 2009. On November 16, 2010, Brown moved to reinstate her case,
No. 11‐1623 Page 2
citing Rule 60(b) of the Federal Rules of Civil Procedure. The district court denied the
motion as untimely. The court explained that the only arguable basis for the motion was
Rule 60(b)(1), which allows the court to grant relief from judgment based on “mistake,
inadvertence, surprise, or excusable neglect.” But a one‐year time limit applies to such
motions, see FED. R. CIV. P 60(c)(1), and Brown’s motion was filed more than a year after she
voluntarily dismissed her case.
We affirm. Voluntary dismissals are self‐executing when filed prior to any
responsive pleadings by the defendants. The dismissal was therefore effective on
October 26, 2009, and the district court’s order of November 17, 2009, was superfluous.
Brown’s motion to reinstate was filed more than a year after the voluntary dismissal, so the
district court properly denied it as untimely.
I. Background
During the 2007‐2008 school year, Brown’s 17‐year‐old son, Jason Edwards, was a
student at Crete‐Monee High School in Crete, Illinois. Jason had problems with disruptive
behavior, tardiness, and unexcused absences during that year, and several discipline
referrals were sent home to Brown. Jason went missing in May 2008. Brown contends that
the school district or local police released him to his father, his noncustodial parent. On
June 23, 2008, Jason was fatally shot in front of his father’s house in Chicago. Brown claims
that the negligence of various school and police officials led to his death.
On February 17, 2009, Brown filed a pro se complaint in federal court in the
Northern District of Illinois, asserting claims under
42 U.S.C. § 1983 and naming as
defendants the Crete‐Monee school district, the Crete Police Department, and the Illinois
Department of Children and Family Services (“DCFS”). The district court on its own
motion dismissed the Crete Police Department and the DCFS as defendants, but allowed
Brown to file an amended complaint. She did so, naming the Village of Crete and many
individual employees of the school district and police department as defendants. On
May 14, 2009, the district court asked Attorney Robert Geimer to serve as Brown’s counsel
pro bono. See
28 U.S.C. § 1915(e)(1); Pruitt v. Mote,
503 F.3d 647, 653‐54 (7th Cir. 2007).
Geimer agreed, but soon filed a motion seeking leave to withdraw. On June 16, 2009, the
court granted this motion, and two days later asked Attorney Michael Bruck to step in as
new counsel. Bruck accepted the appointment, but on August 20, 2009, he, too, moved to
withdraw, noting that he could find no good‐faith basis for the claims Brown sought to
advance. The judge allowed Bruck to withdraw and declined to recruit another pro bono
attorney. Brown filed a second amended complaint on September 16, 2009, and the
following month the defendants moved to dismiss.
No. 11‐1623 Page 3
On October 26, 2009, and again on November 10, 2009, Brown filed motions to
voluntarily dismiss her case, telling the court that her mother had recently died. On
November 17, 2009, the district court issued an order granting the motion. Almost a year
later, on November 16, 2010, Brown moved to reinstate her case, citing Rule 60(b).1
In an order dated February 16, 2011, the court denied the motion as time‐barred. The
judge began by clarifying that Brown’s October 26, 2009 “motion” for voluntary dismissal
was actually a notice of dismissal under Rule 41(a)(1) and it took effect automatically on the
date it was filed. FED. R. CIV. P. 41(a)(1). The judge doubted that a Rule 41(a)(1) dismissal
qualified as a “final judgment, order, or proceeding” under Rule 60(b), but held that relief
was unavailable even if the rule applied. The “only conceivable ground[]” for Rule 60(b)
relief, he said, was “mistake, inadvertence, surprise, or excusable neglect” under Rule
60(b)(1). But motions for relief on this basis must be filed within a year of the judgment, see
FED. R. CIV. P. 60(c)(1), and Brown’s motion was filed on November 17, 2010, more than a
year after the October 26, 2009 dismissal. The judge also explained that the option of filing a
new lawsuit was no longer available because the two‐year statute of limitations for § 1983
claims in Illinois had long since expired, along with the one‐year tolling period under
Illinois law, which permits litigants to refile a voluntarily dismissed case within one year
after dismissal. Brown appealed.
II. Discussion
Brown makes several arguments related to her pro bono counsel and the district
court’s calculation of the relevant statute of limitations, but the only issue properly before us
is whether the district court erred in denying Brown’s motion to reinstate her case under
Rule 60(b).2 We review the court’s denial of a Rule 60(b) motion for abuse of discretion.
Nelson v. Napolitano,
657 F.3d 586, 589 (7th Cir. 2011).
We note first that the district court properly construed Brown’s “motion” for
voluntary dismissal as a notice of voluntary dismissal under Rule 41(a)(1). That she
incorrectly called it a “motion to dismiss” is irrelevant. See Smith v. Potter,
513 F.3d 781, 783
1
Brown also cited Rule 61, but that rule deals with the harmless‐error standard for
evidentiary decisions and has nothing to do with this case.
2
After she appealed the court’s February 16 order denying her motion to reinstate, Brown
filed a flurry of successive Rule 60(b) motions in the district court, all denied, and later sought to
amend her notice of appeal to include the later orders. We denied this request and are not inclined
to revisit that decision.
No. 11‐1623 Page 4
(7th Cir. 2008) (holding that a “motion to voluntarily dismiss the plaintiff’s complaint” was,
despite its title, actually a Rule 41(a)(1) notice of dismissal). A voluntary dismissal filed
before any responsive pleading is filed is self‐executing and automatically effects dismissal
of the case. See
id. at 782 (“The miscaptioned motion itself effected the dismissal of the suit;
the case was gone; no action remained for the district judge to take.”). The defendants had
moved to dismiss under Rule 12(b)(6), but a motion to dismiss is not a responsive pleading.
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056 n.2 (7th Cir.
1998). The dismissal of Brown’s suit was therefore effective on October 26, 2009, the date on
which she filed the “motion” for voluntary dismissal—not on November 17, 2009, the date
on which the court issued the superfluous order “granting” the motion.
Voluntary dismissal under Rule 41(a)(1) generally means the suit is treated as if it
was never filed in the first place, but there are exceptions to this rule, and dismissal “does
not deprive a district court of jurisdiction for all purposes.” Nelson,
657 F.3d at 589. For
example, courts may consider collateral questions, such as Rule 11 sanctions or criminal
contempt charges, even after the original suit is voluntarily dismissed. See Cooter & Gell v.
Hartmarx Corp.,
496 U.S. 384, 395‐96 (1990). We have also stated 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,” Nelson,
657 F.3d at 589—assuming, of course, that a
proper basis under Rule 60(b) is present.
But motions for relief under Rule 60(b)(1), (2), and (3) “must be made . . . no more
than a year after the entry of judgment or order or the date of the proceeding.” FED. R. CIV.
P. 60(c)(1). And although Brown was not entirely clear about the grounds for reinstatement,
the district court was right to conclude that the only arguable basis for relief was “mistake,
inadvertence, surprise, or excusable neglect” under Rule 60(b)(1). The motion was filed on
November 16, 2010, more than a year after the voluntary dismissal was effective, and it was
therefore untimely. Strict enforcement of the time bar might seem harsh, especially because
Brown is a pro se litigant and might have been misled by the district court’s unnecessary
order “granting” her motion to dismiss. But this one‐year deadline is jurisdictional, and
courts lack discretion to extend it. Arrieta v. Battaglia,
461 F.3d 861, 864 (7th Cir. 2006). The
district court therefore correctly held that Brown’s Rule 60(b) motion was time‐barred.3
3
Rule 60(b)(6) is a catch‐all provision that authorizes relief from judgment for “any other
reason that justifies relief,” and motions under this residual clause are not subject to the one‐year
time limit. Rather, they must be made only “within a reasonable time.” FED. R. CIV. P. 60(c)(1). But
relief under Rule 60(b)(6) is not available “if the asserted ground for relief falls within one of the
enumerated grounds for relief subject to the one‐year time limit of Rule 60(b).” Arrieta v. Battaglia,
461 F.3d 861, 865 (7th Cir. 2006). In other words, plaintiffs cannot fall back on the residual clause
just because they miss the one‐year deadline applicable to motions based on Rule 60(b)(1), (2), and
(continued...)
No. 11‐1623 Page 5
Apart from the time bar, it’s hard to see how relief under Rule 60(b) would ever be
available for a plaintiff like Brown who has made a conscious, deliberate decision to dismiss
a lawsuit. Brown suggests that she should be allowed to rescind her voluntary dismissal
because of “excusable neglect,” but her conduct does not fall in this category. Excusable
neglect under Rule 60(b)(1) covers unintentional omissions, such as missed filing deadlines;
it does not apply to a plaintiff’s deliberate actions. See Eskridge v. Cook County,
577 F.3d 806,
810 (7th Cir. 2009) (affirming the denial of Rule 60(b) relief where plaintiffs “explicitly asked
for a voluntary dismissal”; having made that request deliberately, plaintiffs “could not
claim that this dismissal resulted from ‘mistake’ or ‘inadvertence’”). Nor can it be
characterized as a “mistake.” See McCormick v. City of Chicago,
230 F.3d 319, 327‐28 (7th Cir.
2000) (finding that a party’s deliberate choice, later regretted, did not constitute a “mistake”
within the meaning of Rule 60(b)(1)). To whatever extent Rule 60(b) authorizes relief from a
voluntary dismissal under Rule 41(a)(1), it cannot apply simply because Brown has made a
decision she now regrets.
Brown has not argued that we should construe her motion as a new
complaint—indeed, her district‐court filings explicitly disclaim this intention. Even if she
had made this argument, it would be improper for us to take a filing structured as a
motion—and a bare‐bones one at that—and construe it as a complaint. See Gleash v. Yuswak,
308 F.3d 758, 761 (7th Cir. 2002) (explaining that “courts give effect to the substance of a
document and not to its caption” but nevertheless emphasizing the basic substantive
distinction between pleadings and motions). The district court properly denied the
Rule 60(b) motion as untimely.
AFFIRMED.
3
(...continued)
(3). Brown was trying to invoke the factors listed in Rule 60(b)(1)—indeed, her motion cannot
plausibly be read otherwise—so the one‐year time limit is dispositive.
