Nereida Mendez v. Republic Bank

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2585
N EREIDA M ENDEZ,
Plaintiff-Appellant,
v.
R EPUBLIC B ANK,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CV 4159—Joan Humphrey Lefkow, Judge.
A RGUED A PRIL 3, 2013—D ECIDED JULY 25, 2013
Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Under Illinois law, a judgment
creditor may, without any action by a court, require a
third party holding property of a judgment debtor to
freeze the property until a court determines whether the
creditor has a valid claim on the property. To do so the
judgment debtor serves the third party with a citation
to discover assets. If the third party releases the property
without a court order giving permission to do so, the
2 No. 12-2585
third party may be liable to the judgment creditor for
any property of the debtor that was released, up to
the value of the underlying judgment. 735 Ill. Comp. Stat.
5/2-1402(f)(1).
The issue on the merits in this appeal is whether Re-
public Bank is liable to plaintiff Nereida Mendez for
unfreezing two bank accounts that Mendez had required
Republic Bank to freeze pursuant to the Illinois law.
Republic Bank argues that it unfroze the accounts in
reliance upon an order by the United States District
Court for the Northern District of Illinois. Mendez main-
tains that the court’s order did not unfreeze the specific
accounts in question. After some unusual procedural
twists, the district court eventually ruled in favor of
Republic Bank. Mendez appeals. We affirm, concluding
that Republic Bank is not liable to Mendez for releasing
the funds since the most reasonable reading of the
district court order unfroze the accounts in question.
Before we address the merits in detail, though, we
must first address the procedural twists involving
Federal Rule of Civil Procedure 60(b) and the statute
authorizing magistrate judges to provide written
reports and recommendations to district judges. Mendez
is appealing the district judge’s second ruling on her
motion. Initially the district judge ruled for Mendez, and
Republic Bank filed a timely appeal. Three days after
Republic Bank appealed, the district judge realized that
she had overlooked a magistrate judge’s report and
recommendation on Mendez’s motion. After reviewing
the report and recommendation, the district judge con-
No. 12-2585 3
cluded that she had reached the wrong decision on
the merits. The district judge informed the parties of
this and invited Republic Bank to file a Rule 60(b) motion
for relief from judgment and a motion with this court
to remand the pending appeal to the district court. The
motions were filed, we remanded the appeal, and the
district judge then granted the Rule 60(b) motion and
denied Mendez’s motion for judgment against Republic
Bank. Mendez argues that this was an inappropriate
use of Rule 60(b) because such relief is not available to
remedy mistakes that may be corrected on appeal. We
conclude that in these circumstances, where a losing
party has filed a timely appeal, Rule 60(b) may be used
at the district court’s discretion to correct errors that
would also be correctable on appeal.
I. Factual and Procedural Background
In 2007, a jury found that Nereida Mendez suffered
multiple counts of unlawful abuse at the hands of her
employer and awarded her damages of approximately
$800,000, which the district court reduced to $387,931.25
to comply with Title VII’s damage caps. See Mendez v.
Perla Dental, No. 04C4159, 2008 WL 821882 (N.D. Ill.
Mar. 26, 2008), aff’d in part, 646 F.3d 420 (7th Cir. 2011).1
1
As set out in an earlier opinion on the merits of Mendez’s
claims:
The evidence at trial demonstrated that the defendants
maintained an environment of ongoing verbal and physical
sexual harassment of female employees, refused repeatedly
(continued...)
4 No. 12-2585
Mendez then began a judicial odyssey to collect her
judgment. She served over fifty citations to discover assets
on the employer defendants and dozens of banks where
she believed the employer defendants had deposited
assets. She also successfully fought the employer defen-
dants’ fraudulent attempt to escape the judgment by
declaring bankruptcy. See In re Dental Profile, Inc.,
446 B.R. 885, 903-06 (Bankr. N.D. Ill. 2011) (finding em-
ployer defendant fraudulently filed bankruptcy petition
(...continued)
to change that environment, and ultimately terminated
Mendez for her complaints of mistreatment. Mendez’s
complaints took a variety of forms. She complained of
sexual harassment to the office manager, the assistant office
manager, and the general manager, but those complaints
resulted in no changes in the environment, and in fact
caused her to be criticized and ridiculed in front of the
other employees. In addition, she complained to the police
when one incident resulted in physical injury to her. In that
incident, Dr. Dajani pushed her to the floor after she
refused his suggestion that she date Dr. Ahmed. She
injured her back in that fall and received treatment in the
emergency room. She then filed a police report concerning
that incident. That action caused an escalation in the
harassment. Mendez introduced testimony that when she
gave the defendants the bill from her hospital visit, the
owner stated “[w]ho do you think you are bringing the
police into our office,” and then told her she was fired
and had her escorted from the building.
Mendez v. Perla Dental, 646 F.3d 420, 421 (7th Cir. 2011).
No. 12-2585 5
to avoid judgment and imposing sanctions). For her
efforts, she has recovered to date only $99,519.97 on her
judgment. This appeal is the latest episode in this quest.
On October 11, 2010, Mendez served Republic Bank by
certified mail with a citation to discover assets. Republic
Bank’s compliance with this citation is the focus of this
appeal. The citation required Republic Bank to freeze
accounts held under the names of twenty-two different
entities that Mendez believed contained assets be-
longing to her former employers. Upon receiving the
citation, Republic Bank froze all of the listed accounts.
On October 14, 2010, several of the entities that owned
the frozen accounts intervened and moved to quash the
citation to discover assets to unfreeze their accounts. The
interveners owned only a subset of the accounts frozen
pursuant to Mendez’s citation to Republic Bank and
another citation that Mendez had served earlier on
MB Financial. Of note, the judgment debtors themselves,
Dentists, P.C. and Dental Profile, Ltd., did not move
to have their accounts unfrozen, and neither the judg-
ment debtors nor Republic Bank were parties to the
motion. The interveners argued that their accounts
should be unfrozen because the accounts did not
contain funds belonging to the judgment debtors. The
next day Judge Der-Yeghiayan heard the motion and
issued the following order (the “October 15 Order”), the
interpretation of which is the central issue in this appeal:
The Court hereby orders that, until further order of
this Court, the only accounts that are to remain
frozen pursuant to the citation issued by Plaintiff
Nereida Mendez against Defendants Dentists, P.C.;
6 No. 12-2585
Perla Dental, and Dental Profile/Dental Profile, Ltd.
are as follows: AYA Dental Account that contains a
balance of $72,171.29 and the two Dental Profile
Ltd accounts that each contain a balance of $0.00 at
MB Financial Bank (as represented by counsel for MB
Financial Bank as to the amounts currently in the
above-referenced accounts). The Elgin Dental Profile,
Ltd., account and the Aldairi/Husgus account at MB
Financial Bank are hereby ordered to be unfrozen
until further order of this Court. In addition, the
accounts held under the names AYA Dental and AYA
Dental, Ltd at Republic Bank of Chicago will remain
frozen until further order of this Court. Emergency
motion to quash citations as to all other accounts at
MB Financial Bank and Republic Bank of Chicago
that are not identified above [312] is granted. MB
Financial Bank is ordered to respond within 14 days
to the discovery request by the above Plaintiff
with regard to the Aldairi/Husgus account at MB
Financial Bank.
According to Republic Bank, the October 15 Order
unambiguously required it to unfreeze all accounts frozen
pursuant to Mendez’s citation, except the AYA Dental and
AYA Dental, Ltd. accounts that were specifically men-
tioned as remaining frozen. Accordingly, Republic Bank
unfroze all the other accounts. The accounts Republic Bank
unfroze included two accounts held by Dentists, P.C. and
Dental Profile, Ltd., neither of which was a party to
the motion to quash. At the hearing on the motion to
quash, it was never argued that those accounts should
be unfrozen. Nevertheless, Republic Bank also unfroze
No. 12-2585 7
these accounts pursuant to its reading of the October 15
Order. Over the next four months, the judgment debtors
transferred approximately $716,886.05 out of these ac-
counts, more than enough to have covered the unpaid
judgment in favor of Mendez.
In February 2011, Mendez discovered that Republic
Bank had unfrozen the Dentists, P.C. and Dental Profile,
Ltd. accounts. Mendez emailed Republic Bank requesting
that it refreeze the accounts pursuant to the terms of
the citation. Republic Bank did not freeze the accounts
in response. On March 2, 2011, Mendez filed an
emergency motion to freeze the accounts, which the
district court granted on March 3, 2011. During the
March 3 hearing, Judge Der-Yeghiayan did not under-
stand why Mendez was trying to freeze the Dentists, P.C.
and Dental Profile, Ltd. accounts, saying, “We had
frozen that. Why would I freeze it again?” The judge then
issued an order providing in part that “the court reiterates
that any accounts at Republic Bank of Chicago in the
names of the judgment debtors, Dentists, P.C., Perla
Dental, and Dental Profile/Dental Profile, Ltd. and any
accounts in the names of AYA Dental and AYA Dental,
Ltd. are to be frozen.”
In April 2011, Mendez’s case was transferred from
Judge Der-Yeghiayan to Judge Lefkow. After the transfer,
Mendez moved the district court to hold Republic Bank
liable for the release of the funds under the Illinois
citation statute that permits a judgment creditor to
recover the amount of the judgment from a party served
with a motion to discover assets if that party improperly
8 No. 12-2585
releases the funds subject to that order. See 735 Ill. Comp.
Stat. 5/2-1402(f)(1). Mendez argued that Republic Bank
was liable for the full amount outstanding on her judg-
ment because it had released funds exceeding that
amount from the Dentists, P.C. and Dental Profile, Ltd.
accounts without a court order. Republic Bank contended
that the October 15 Order required it to unfreeze these
accounts and that it would have risked liability to the
account holders if it had failed to do so.
The motion was referred to Magistrate Judge Valdez,
who issued a report and recommendation in favor of
Republic Bank. See 28 U.S.C. § 636(b)(1). The magistrate
judge reasoned that the plain language of the October 15
Order indicated that the AYA Dental and AYA Dental,
Ltd. accounts were the only accounts at Republic Bank
to remain frozen, and that Judge Der-Yeghiayan’s later
comments that the debtor-employers’ accounts were
supposed to have stayed frozen did not change the
plain meaning of the October 15 Order. The magistrate
judge concluded that because Republic complied with
the order to unfreeze the funds, it did not violate the
citation and should not be liable to Mendez.
Mendez objected to the recommendation, which
required the district judge to review Mendez’s motion
de novo. Fed. R. Civ. P. 72(b). Initially Judge Lefkow
reached the opposite conclusion, finding that Republic
Bank violated the citation because Judge Der-Yeghiayan
did not intend to unfreeze the Dentists, P.C. and Dental
Profile, Ltd. accounts in the October 15 Order. In support
of this conclusion, Judge Lefkow looked beyond the text
No. 12-2585 9
of the order and gleaned this intent from the October 15,
2010 and March 3, 2011 hearing transcripts. Notably,
though, Judge Lefkow did not actually review Magistrate
Judge Valdez’s report and recommendation before
ruling on the motion. Republic Bank filed a timely
notice of appeal on April 3, 2012.
Three days later, Judge Lefkow concluded that she
had made a mistake. She called the parties in for a
status conference and told them that she had over-
looked the magistrate judge’s report and recommenda-
tion when deciding Mendez’s motion and, after
reviewing the report, “realized that the decision was
really not correct.” To fix her mistake, she invited
Republic Bank to file a Rule 60(b) motion for relief
from judgment and indicated that she would grant the
motion. Three days later Republic Bank moved to
remand the appeal to the district court, and we remanded
the appeal to the district court. See Fed. R. App. P. 12.1;
Seventh Circ. R. 57. Republic Bank then filed its Rule
60(b) motion.
Judge Lefkow granted the Rule 60(b) motion and
issued a new order on June 6, 2012. As an initial
matter, Judge Lefkow found that her failure to review
the magistrate judge’s report and recommendation was
an extraordinary circumstance that justified relief from
judgment under Rule 60(b)(6). Then she concluded that
the magistrate judge had recommended the correct
result. Judge Lefkow reasoned that Judge Der-Yeghiayan’s
October 15 Order “at best, was ambiguous” and “cannot
be said to have set forth an unambiguous command” for
10 No. 12-2585
Republic Bank to follow. Absent an explicit order
that Republic Bank disobeyed, the court concluded that
Republic Bank could not be liable to Mendez. Mendez
now appeals this denial of her motion. The denial of
Mendez’s motion was a final resolution of the post-judg-
ment dispute between Mendez and Republic Bank, so
we have jurisdiction under 28 U.S.C. § 1291. We affirm.2
II. Analysis
Mendez raises three arguments on appeal. First, she
argues that the district judge erred in granting relief
under Rule 60(b) because there were no extraordinary
circumstances justifying relief and Rule 60(b) may not
be used to correct errors that may be corrected on ap-
peal. Second, Mendez argues that the grant of relief
deprived her of genuine de novo review of the magistrate
judge’s report and recommendation. Finally, Mendez
argues on the merits that the court erred in concluding
that Republic Bank was not liable for releasing the
funds. We are sympathetic to Mendez’s profound frustra-
tion, and we are deeply troubled that the judiciary’s
failure to issue a clear order reflecting its intent in this
matter has hurt her chances of fully collecting her judg-
ment against her former employer. Yet these arguments
do not persuade us that Republic Bank is liable to
2
The post-judgment citation proceedings to enforce the district
court’s judgment were within the district court’s supple-
mental jurisdiction. See Travelers Prop. Cas. v. Good, 689 F.3d
714, 724-25 (7th Cir. 2012).
No. 12-2585 11
Mendez. The bank followed the most reasonable inter-
pretation of the poorly drafted October 15 Order when
it unfroze the defendants’ accounts. The bank therefore
did not violate the Illinois citation statute. We begin
with the Rule 60(b) and de novo review arguments,
and then turn to the merits of the dispute.
A. Rule 60(b)
Federal Rule of Civil Procedure 60(b) allows a district
court to relieve a party from a final judgment or order
in six discrete circumstances, only two of which are
relevant to this case: “(1) mistake, inadvertence, surprise,
or excusable neglect” and “(6) any other reason that
justifies relief.” Fed. R. Civ. P. 60(b).3 To balance the
3
Rule 60(b) provides in full:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve
a party or its legal representative 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 dili-
gence, 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
(continued...)
12 No. 12-2585
availability of post-judgment relief with finality interests,
the availability of Rule 60(b) relief is limited in several
ways. First, relief under the subsection (6) catch-all cate-
gory is limited to “extraordinary circumstances . . . .” See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-
64 (1988). Second, a motion for relief “must be made
within a reasonable time” after entry of judgment,
which the rule defines for subsections (1) through (3) as
no later than one year after the entry of judgment. Fed. R.
Civ. P. 60(c)(1); Gonzalez v. Crosby, 545 U.S. 524, 535
(2005). (To prevent parties from using the subsection (6)
catch-all to circumvent the one-year limit on relief under
subsections (1) through (3), courts read the Rule 60(b)
subsections to be “mutually exclusive,” meaning if relief
is available under a more specific subsection, it is not
available under subsection (6). See Pioneer Inv. Servs. Co.
v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 393 (1993).)
And third, because the decision to grant relief from
judgment is closely related to the circumstances of the
judgment and the equities of a particular case, district
courts are given broad discretion to deny motions for
relief from judgment. Accordingly, we review the grant
or denial of relief from judgment only for abuse of discre-
tion. See Bakery Mach. & Fabrication, Inc. v. Traditional
Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009) (“The
3
(...continued)
or vacated; or applying it prospectively is no longer equita-
ble; or
(6) any other reason that justifies relief.
No. 12-2585 13
district court has great latitude in making a Rule 60(b)
decision because that decision is discretion piled on
discretion.”) (quotations omitted); United States v. Ligas,
549 F.3d 497, 501 (7th Cir. 2008).
The district court awarded Republic Bank relief from
judgment under subsection (6), reasoning that its
failure to review the magistrate judge’s report and recom-
mendation prior to ruling on Mendez’s motion, which
led to its subsequent realization that it reached the
wrong result, was “an unusual circumstance justifying
relief.” Mendez advances two arguments for finding
that the district court erred on this point. First, she
argues that the court’s failure to review the magistrate
judge’s report and recommendation did not constitute
an “exceptional circumstance” justifying relief under
subsection (6). Second, she argues that Rule 60(b) relief
is never appropriate to correct errors that may be
corrected on appeal, as this error could have been. Al-
though we agree with Mendez that this case does not
fall within subsection (6), we conclude that the
district court did not abuse its discretion because the
district court could properly grant relief under subsec-
tion (1), even though the error was correctable on appeal.
We must first determine under which Rule 60(b) sub-
section this case is properly analyzed. The district judge
cited subsection (6) as the basis for relief. Her reason
for granting relief was that she had inadvertently over-
looked the magistrate judge’s report and recommenda-
tion and rendered an incorrect decision. This reason falls
within the “mistake” and “inadvertence” language of
14 No. 12-2585
subsection (1), which includes inadvertence on the part
of both courts and parties. See Buggs v. Elgin, Joliet & E.
Ry. Co., 852 F.2d 318, 322 (7th Cir. 1988); Bank of
California, N.A. v. Arthur Andersen & Co., 709 F.2d 1174,
1176 (7th Cir. 1983). Because the subsections of Rule 60(b)
are not overlapping, the fact that this case is properly
analyzed under subsection (1) means that the district
court technically analyzed the case under the wrong
subsection when it awarded relief under subsection (6).
The district court’s citation of a wrong subsection, how-
ever, does not merit reversal if relief is appropriate
under another subsection. See Disch v. Rasmussen, 417
F.3d 769, 779 (7th Cir. 2005) (rejecting argument that
district court abused discretion by referring to Rule 60(a)
when case fell within Rule 60(b)(1)); Wesco Products Co.
v. Alloy Auto. Co., 880 F.2d 981, 984-85 (7th Cir. 1989)
(recharacterizing motion for relief under Rule 60(b)(6) as
a motion under Rule 60(b)(1)); see also Boyd v. Illinois
State Police, 384 F.3d 888, 897 (7th Cir. 2004) (noting
that appellate court may affirm on any ground in
the record). Accordingly, we analyze the case under
subsection (1).
This brings us to the heart of Mendez’s second argu-
ment: whether Rule 60(b) relief may be granted to
remedy errors that may be corrected on appeal. This
problem arises most often when a district court denies
relief and we affirm, finding no abuse of discretion in a
refusal to reopen a closed judgment when the contested
issue could have been pursued on appeal. Cases involving
the grant of relief under Rule 60(b)(1) are much less
common, and our prior cases have not always been clear
No. 12-2585 15
in describing when a district court may grant relief
under subsection (1) to correct errors that might also be
corrected on direct appeal. Compare Buggs, 852 F.2d at
322 (affirming grant of relief under Rule 60(b)(1) for
reason that could have been subject of appeal), and Bank
of California, 709 F.2d at 1176-77 (recognizing use of
Rule 60(b)(1) to correct appealable errors made by
district court), with Gleash v. Yuswak, 308 F.3d 758, 761 (7th
Cir. 2002) (affirming district court’s decision not to
treat new complaint as Rule 60(b)(1) motion: “A conten-
tion that the judge erred with respect to the materials in
the record is not within Rule 60(b)’s scope, else it would
be impossible to enforce time limits for appeal.”), and Bell
v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000)
(affirming denial of Rule 60(b) motion filed after time to
appeal had expired: “The ground for setting aside a
judgment under Rule 60(b) must be something that
could not have been used to obtain a reversal by means
of a direct appeal.”).
Our statements rejecting the use of Rule 60(b) to
correct appealable errors have all been motivated by the
concern that Rule 60(b) could be used to circumvent
the deadlines for filing appeals. E.g., Gleash, 308 F.3d at
761; Bell, 214 F.3d at 801 (“To allow a ground that can
be adequately presented in a direct appeal to be made
the basis of a collateral attack would open the door to
untimely appeals, the spectre that this case illustrates.”);
Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d
746, 749 (7th Cir. 1995) (“Rule 60(b), on the other hand, is
not an appropriate vehicle for addressing simple legal
error; otherwise, a party could circumvent the ordinary
16 No. 12-2585
time limitation for filing a notice of appeal.”). Federal
Rule of Appellate Procedure 4 establishes strict time
limits for filing federal appeals. These limits may be
extended only under circumstances set out in the rule.
If parties or courts could use Rule 60(b) to revive cases
in which a party failed to appeal within the standard
deadline, Appellate Rule 4 would lose much of its force.
That is why we have held in the cases cited above
that Rule 60(b) relief is appropriately denied when a
party fails to file a timely appeal and the relief sought
could have been attained on appeal.
We have used overly broad language that may be read
to foreclose Rule 60(b) relief for any error that could
be corrected on appeal, but we have also affirmed the
use of Rule 60(b) to correct errors that could have
been corrected on appeal when the concern about
circumventing the deadline to appeal is absent.
We approved of this practice in Buggs, a case in which
the district court failed to provide full relief to a
plaintiff in a Title VII suit. That was an error that the
plaintiff could have remedied on appeal. Yet after a
notice of appeal was filed, we remanded the case to
permit the district judge to correct the judgment under
Rule 60(b). The defendant appealed, arguing that this
was an inappropriate use of Rule 60(b). We concluded
that the district court acted within its discretion. 852 F.2d
at 324. Thus, while there is some superficial tension
in our case law between Buggs and some of our more
sweeping statements in cases like Bell, we agree with
the significant majority of the circuits that subsection (1) of
Rule 60(b) allows a district court to correct its own
No. 12-2585 17
errors that could be corrected on appeal, at least if the
motion is not a device to avoid expired appellate time
limits.4 As Judge Friendly observed nearly fifty years ago,
4
With only two exceptions, all of the circuits that have con-
sidered this question have concluded that Rule 60(b)(1) may
appropriately be used to grant relief from judgment for legal
errors that may be corrected on appeal. For cases in favor of
Rule 60(b)(1) relief in such circumstances. See In re 310
Associates, 346 F.3d 31, 35 (2d Cir. 2003) (“In two early cases, this
Court established a principle that Rule 60(b)(1) was available
for a district court to correct legal errors by the court.”) (citation
omitted); United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002)
(Rule 60(b)(1) relief available “when the judge has made a
substantive mistake of law or fact in the final judgment or
order”); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 578 (10th
Cir. 1996) (“The Tenth Circuit has made it clear that certain
substantive mistakes in a district court’s rulings may be chal-
lenged by a Rule 60(b)(1) motion.”); FDIC v. Castle, 781
F.2d 1101, 1104 (5th Cir. 1986) (“The law of this circuit
permits a trial judge, in his discretion, to reopen a judgment
on the basis of an error of law.”) (citation omitted); Liberty
Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 & n.5 (9th Cir. 1982)
(“The law in this circuit is that errors of law are cognizable
under Rule 60(b).”); Parks v. U.S. Life & Credit Corp., 677 F.2d
838, 839-40 (11th Cir. 1982) (Rule 60(b)(1) “encompasses mistakes
in the application of the law”).
For a circuit opposed, see Venegas-Hernandez v. Sonolux
Records, 370 F.3d 183, 189 (1st Cir. 2004) (“One might, and some
courts do, think that Rule 60(b)(1)’s reference to ‘mistake’ as a
grounds for relief from judgment includes this type of error
of law. But this circuit decided that question the other way
(continued...)
18 No. 12-2585
“no good purpose is served by requiring the parties to
appeal to a higher court, often requiring remand for
further trial proceedings, when the trial court is equally
able to correct its decision in the light of new authority
on application made within the time permitted for
appeal . . . .” Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir.
1964) (citations omitted). Likewise in the rare case where
a district judge recognizes a clear legal or factual error
before a pending appeal has been briefed, no purpose is
served by prohibiting the district judge from remedying
the error. The parties in such cases, consistent with the
goal of the Federal Rules of Civil Procedure “to secure
the just, speedy, and inexpensive” resolution of disputes,
may be spared the effort and expense of preparing an
appeal and educating a new court on the particulars of
their case. See Fed. R. Civ. P. 1; see also Varhol v. Nat’l
R.R. Passenger Corp., 909 F.2d 1557, 1574 (7th Cir. 1990)
(en banc) (Manion, J., concurring) (noting that Rule 1 is
a rule of construction for interpreting the Rules). Whether
such an error may be remedied more efficiently through
Rule 60(b) rather than the normal appellate process
is a question appropriately left to the district court’s dis-
cretion.
To be clear, this conclusion does not undermine our
effort to prevent Rule 60(b) from being used to evade the
deadline to file a timely appeal. This concern may be
(...continued)
in 1971.”). The Third Circuit has taken a similar approach in
a non-precedential order in 2005 that we refrain from citing.
No. 12-2585 19
adequately addressed through careful enforcement of
the requirement that Rule 60(b) relief be sought within
a “reasonable time . . . .” Fed. R. Civ. P. 60(c)(1). In the
past we have suggested that the practice of requiring a
Rule 60(b) motion to correct the court’s own error to be
filed before the time to appeal runs is a “sensible” one
“provided that it is flexibly applied.” See Bank of California,
709 F.2d at 1176-77. Given Federal Rule of Appellate
Procedure 12.1 and our Circuit Rule 57 procedure that
permit us to remand an appeal to the district court for
purposes of granting relief from judgment under
Rule 60(b), relief may also be timely sought after an
appeal has been docketed without fear that the deadline
to appeal is being circumvented. On the other hand, a
Rule 60(b) motion filed after the time to appeal has run
that seeks to remedy errors that are correctable on
appeal will typically not be filed within a reasonable time.
Turning to the circumstances of this case, the district
court’s decision to grant Rule 60(b) relief was within
its discretion to remedy its own mistake under subsec-
tion (1). The district court concluded that it had erred by
overlooking the magistrate judge’s report and recom-
mendation and reached an incorrect result in deciding
the motion. Moreover the district judge recognized
that she was “sure to get reversed” on appeal and
believed that it would be “better for the resolution of the
dispute” to correct her judgment right away. This is a
relatively unusual case. The court’s decision to correct
its oversight by vacating its order was an acceptable
response to this situation within the bounds of Rule
60(b)(1), though it was by no means required to do so.
20 No. 12-2585
Republic Bank’s motion for Rule 60(b) relief was also
made within a reasonable time. The district court recog-
nized its error only three days after Republic Bank filed
its notice of appeal, and Republic Bank’s Rule 60(b) motion
followed three days later. The Rule 60(b) motion was
filed more than 30 days after the district court entered
judgment, but Republic Bank had already filed a timely
notice of appeal. Therefore, neither Republic Bank nor
the district court was trying an end run around the dead-
line for filing an appeal, and the parties were not op-
erating under the assumption that the dispute had come
to an end. The district court did not abuse its discretion
by using Rule 60(b) to correct its own error.
B. De Novo Review
Mendez next argues that the district court’s grant of
Republic Bank’s Rule 60(b) motion deprived her of truly
de novo review of the magistrate judge’s report and recom-
mendation as required by 28 U.S.C. § 636(b)(1)(C)
and Federal Rule of Civil Procedure 72(b)(3). See also
Kanter v. Comm’r of Internal Revenue, 590 F.3d 410, 416-17
(7th Cir. 2009). The argument appears to be that because
the district judge changed her mind after reviewing the
report, she must have given the report some deference
that is inconsistent with de novo review. We disagree. A
judge may be persuaded by the argument in a
magistrate judge’s report without giving the report any
improper deference.
Simply put, a party is not deprived of de novo review
of a magistrate judge’s report when the district judge is
No. 12-2585 21
persuaded by the magistrate judge’s reasoning. “Congress
intended to permit whatever reliance a district judge,
in the exercise of sound judicial discretion, chose to
place on a magistrate’s proposed findings and recom-
mendation.” United States v. Raddatz, 447 U.S. 667, 676
(1980). Being persuaded by the magistrate judge’s rea-
soning, even after reviewing the case independently,
is perfectly consistent with de novo review. To illustrate
the point, the federal courts of appeals conduct de novo
review of a wide range of district court decisions. The
fact that we read a district court’s reasoning before
making a decision is not thought to undermine the
de novo character of that review.
De novo review requires the district judge to decide
the case based on an independent review of the evidence
and arguments without giving any presumptive weight
to the magistrate judge’s conclusion. The district judge
is free, and encouraged, to consider all of the avail-
able information about the case when making this inde-
pendent decision. A district judge may be persuaded
by the reasoning of a magistrate judge or a special master
while still engaging in an independent decision-making
process. See Raddatz, 447 U.S. at 683 n.11 (“In original cases,
as under the Federal Magistrates Act, the master’s recom-
mendations are advisory only, yet this Court regularly
acts on the basis of the master’s report and exceptions
thereto.”). The fact that the district judge was persuaded
by the magistrate judge’s report did not deprive Mendez
of de novo review.
22 No. 12-2585
C. Republic Bank’s Compliance with the Citation to Discover
Assets
We turn now to the merits: whether Republic Bank
complied with the citation to discover assets. The district
court concluded that Republic Bank was not liable to
Mendez, reasoning that a citation recipient could not
be liable under Illinois law unless its conduct was contu-
macious and concluding that Republic Bank did not
act contumaciously. On appeal Mendez argues that the
district court erred in requiring a finding of con-
tumacious conduct for liability, and that under a correct
interpretation of Illinois law, Republic Bank is liable
for violating the citation. We agree with Mendez that
the district court applied the wrong legal standard, and
we conclude that the interpretation of the October 15
Order presents a question of law rather than fact. Ac-
cordingly, we review de novo whether Republic Bank
unlawfully transferred the assets.5 Because the plain text
of the October 15 Order unfroze the judgment debtors’
accounts in question, we conclude that Republic Bank
did not violate the citation and is not liable to Mendez.
Under Illinois law, a judgment creditor may try to
collect her judgment by serving a citation to discover
assets upon an individual or entity believed to possess
5
The parties spent significant portions of their briefs
debating the best interpretation of the order. The issue has
been fully briefed and it is appropriate for us to resolve it
now rather than remanding the case to the district court and
further delaying resolution of this dispute.
No. 12-2585 23
assets of the judgment debtor. See Ill. Sup. Ct. R. 277(b);
735 Ill. Comp. Stat. 5/2-1402.6 The citation to discover
assets initiates a supplemental proceeding that permits
the judgment creditor to determine whether the citation
recipient has assets of the debtor. If the recipient is in
possession of the debtor’s funds, a court may order the
turnover of the assets. 735 Ill. Comp. Stat. 5/2-1402(c).
To protect assets from improper transfers, Illinois
permits judgment creditors to include restraining provi-
sions in citations that prohibit the recipient from
“making or allowing any transfer or other disposition of,
or interfering with, any property not exempt from the
enforcement of a judgment therefrom . . . until the further
order of the court or the termination of the proceeding,
whichever occurs first.” 735 Ill. Comp. Stat. 5/2-1402(f)(1).
A citation recipient who fails to comply with the re-
straining provision may be liable to the judgment
creditor for any transferred funds that belonged to the
judgment debtor. Contrary to the view of the district
court, no showing of contempt is required to impose
liability on the citation recipient. Bank of Aspen v. Fox
Cartage, Inc., 533 N.E.2d 1080, 1086 (Ill. 1989). The statute
provides that the court:
6
Post-judgment proceedings to collect a judgment are governed
by the law of the state in which the federal court issuing the
judgment is located. Fed. R. Civ. P. 69(a)(1). Mendez won her
judgment in the Northern District of Illinois, so the Illinois
procedures govern this supplemental proceeding. See Bank of
Am., N.A. v. Veluchamy, 643 F.3d 185, 188 (7th Cir. 2011).
24 No. 12-2585
may punish any party who violates the restraining
provision of a citation as and for a contempt, or if the
party is a third party may enter judgment against him or
her in the amount of the unpaid portion of the judgment
and costs allowable under this Section, or in the
amount of the value of the property transferred,
whichever is lesser.
735 Ill. Comp. Stat. 5/2-1402(f)(1) (emphasis added).
The Illinois Supreme Court has interpreted this
language to permit a court to hold a third-party citation
respondent liable for any transfer in violation of the
citation. The court may also impose contempt sanctions
on a respondent who “willfully or contumaciously”
violated the citation. See Bank of Aspen, 533 N.E.2d at 1086.
To recover from Republic Bank, Mendez must show only
(1) that she has an enforceable judgment, (2) that she
properly served a citation upon the bank, and (3) that
the bank transferred assets of the judgment debtor in
violation of the citation’s restraining provision. See In re
Weitzman, 381 B.R. 874, 882 (Bankr. N.D. Ill. 2008). Only
the third element is disputed.
Republic Bank permitted the judgment debtors to
transfer money out of their accounts after Mendez
served the citation on the bank. The bank — which was not
a party to the proceedings surrounding the October 15
Order — maintains that the transfers were lawful because
the district court’s order required it to unfreeze the ac-
counts in question. Because the citation’s restraining
provision can be terminated by a court order, the bank
did not violate the restraining provision if the October 15
No. 12-2585 25
Order authorized it to release the funds. We agree
with Republic Bank that the order is best read as
requiring it to release the funds, even if that is not what
the district judge author intended.
At the outset we must determine the proper scope of
our inquiry into the meaning of the order. Mendez
argues that we should read the order in light of the
motion to quash, the October 15 hearing transcript, and
the March 3, 2011 hearing transcript. These materials
make clear that Judge Der-Yeghiayan did not intend his
October 15 Order to unfreeze the Dentists, P.C. and Dental
Profile, Ltd accounts, as Judge Lefkow found in her
original decision. We believe the proper inquiry, how-
ever, should not extend beyond the text of the court’s
order. It is not reasonable to expect a third-party citation
respondent to investigate the intended meaning of a
court order beyond the text of the order itself. A respon-
dent may be expected to comply with only the
most reasonable reading of a court order unfreezing
assets. The respondent will ordinarily be a stranger to
the underlying dispute and often, as in this case, has no
obligation to spend time and money to participate in
court proceedings on whether to unfreeze the debtor’s
assets. In such cases, the respondent will simply be pre-
sented with a copy of the resulting court order and a
demand by an account holder to release the accounts.
Citation respondents — many of whom deal with
numerous citations per year — need not investigate the
docket of a case (at their own expense) before releasing
the funds. If we were to obligate respondents to search
26 No. 12-2585
the record, how far would they have to read to be sure
they had interpreted the order properly, lest they risk
strict liability? All of the pleadings? The hearing tran-
script? If there is no transcript, must a respondent
pay to have one prepared? Quickly? To ask these
questions is to answer them. All we can reasonably
expect of third-party citation respondents is that they
follow the most reasonable interpretation of a court’s
order. For the same reason, our own inquiry should not
extend beyond the text of the order in question.
Turning to the October 15 Order, we agree with
Republic Bank that the most reasonable reading is that
the order unfroze all of the accounts included in the
citation to discover assets held by Republic Bank except
for the accounts specifically excepted in the order. The
order began: “The Court hereby orders that, until further
order of this Court, the only accounts that are to remain frozen
pursuant to the citation issued by Plaintiff Nereida Mendez
against Defendants . . . are as follows . . . .” (Emphasis
added.) The order then referred to three accounts at MB
Financial Bank that were to remain frozen and two ac-
counts at Republic Bank that were to remain frozen.
Given the first sentence of the order and the reference
in the order to specific accounts that were to remain
frozen, the text of the order clearly indicated that all
accounts not mentioned were to be unfrozen. Consistent
with the first sentence, the order concluded: “Emergency
motion to quash citations as to all other accounts at MB
Financial Bank and Republic Bank of Chicago that are not
identified above [312] is granted.” (Emphasis added.)
Presented with this order, Republic Bank drew the most
No. 12-2585 27
obvious conclusion: all accounts frozen pursuant to
Mendez’s citation except those specifically listed were to
be unfrozen. Because the order did not mention the
Dentists, P.C. and Dental Profile, Ltd. accounts at
Republic Bank, they were to be unfrozen.
Mendez argues that it is unreasonable to read the
order to include the Dentists, P.C. and Dental Profile, Ltd.
accounts because these accounts were not at issue in
the motion to quash the citation. She argues that the
reference to the docket number of the motion decided
by the order — “[312]” — incorporated the motion by
reference into the order. According to Mendez, when the
motion to quash is read with the court order, the “not
identified above” language in the phrase “emergency
motion to quash citations as to all other accounts . . . not
identified above [312] is granted” implicitly limits the
broad language about unfrozen accounts to those men-
tioned in the motion to quash itself. Based on this inter-
pretation, the sentence from the order could be rewrit-
ten as “Emergency motion to quash citations as to all
other accounts [listed in the motion to quash citations] at
MB Financial Bank and Republic Bank of Chicago that
are not identified above [312] is granted.” (Added text
in italics.)
We reject this theory, under which the obscure
reference (imagine a layperson trying to decipher “[312]”)
to the motion to quash meant that the bank was
required to figure out that the order did not actually
mean what its plain language indicated. The order’s
obscure reference to the docket number of the motion
28 No. 12-2585
cannot fairly be read to require a bystander like the bank
to figure out that the district judge had used language
much broader than his intended meaning. The breadth of
that language, which was not recognized by Mendez’s
counsel or anyone else when there was still time to
avoid the problem, was the source of the dispute.7
Because the most reasonable reading of the October 15
Order unfroze the Dentists, P.C. and Dental Profile, Ltd.
7
Even if we were to read the order in conjunction with the
motion, we would not reach a different result. A critical problem
with Mendez’s argument is that the October 15 Order specifi-
cally referred to accounts that had not been the subject of the
motion to quash. The court’s order provided that “the two
Dental Profile Ltd accounts that each contain a balance of $0.00
at MB Financial Bank” were to “remain frozen pursuant to the
citation . . . .” These accounts were not included in the motion to
quash, yet Judge Der-Yeghiayan included them in the order as
accounts that were to remain frozen. In fact, these accounts had
the same name as one of the accounts that Mendez claims
Republic Bank wrongfully unfroze. Because the Dental Profile
Ltd. account at MB Financial Bank was explicitly mentioned in
the order while the Dental Profile Ltd. account at Republic
Bank was not, the failure to mention the Dental Profile Ltd.
account at Republic Bank implied that the account was not to
remain frozen. Mendez’s theory that the order dealt only with
accounts that were the subject of the motion to quash cannot
make sense of the order’s reference to accounts that were not
at issue in the motion. Thus, even if Republic Bank had read
the October 15 Order in conjunction with the motion to quash,
the most reasonable reading of the order would still have
been that the accounts not mentioned in the motion were to
be unfrozen.
No. 12-2585 29
accounts at Republic Bank, Republic Bank did not
violate the citation statute. Accordingly, we A FFIRM the
district court’s denial of Mendez’s motion to hold
Republic Bank liable for the unpaid portion of the judg-
ment in her favor.
7-25-13