NELSON v. NAPOLITANO (September 15, 2011)

Herman Nelson and two other federal air marshals brought suit against the Department of Homeland Security, alleging age and race discrimination and retaliation. While the suit was pending, but before the DHS had answered the complaint, one of the plaintiffs was arrested and charged with sexual assault. Fearing that that fact might negatively affect their lawsuit, the plaintiffs voluntary dismissed their complaint under Rule 41(a)(1)(A). Nine months later, after the statute of limitations had run, the plaintiffs moved under Rule 60(b) to “reinstate the complaint.” Judge Dow (N.D. Ill.) denied the motion. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Kanne, Rovner, and Sykes affirmed. Although a voluntary dismissal under Rule 41 is generally treated as if the underlying case were never filed, the district court retains jurisdiction to consider a Rule 60(b) motion. So the district court did have jurisdiction to consider the motion. The Court concluded, however, that the district court did not abuse its discretion in denying it. Rule 60(b) allows the court to provide relief for several stated reasons. The plaintiffs never identified which basis it relied on – nor did it make any argument in support of any particular basis. In fact, plaintiffs' counsel mistakenly thought that federal practice mirrored Illinois practice. Under Illinois practice, he would have had a one-year safe harbor within which to refile his complaint. The district court was well within its discretion to determine that counsel's misunderstanding of federal practice did not justify Rule 60 relief.