CHICAGO DOWNS ASSOCIATION, INC., PLAINTIFF-APPELLEE, v. DENNIS R. CHASE, DOING BUSINESS AS SPORTS ACHIEVEMENTS ASSOCIATION,
DEFENDANT-APPELLANT.
Nos. 90-2078, 90-2672. United States Court of Appeals, Seventh Circuit.
Argued May 17, 1991. Decided September 26, 1991.
Thomas D. Nash, Jr. (argued), Nash Lalich, Chicago, Ill., for plaintiff-appellee.
Wayne F. Plaza (argued), Edward Dismukes, Rooks, Pitts Poust, Chicago, Ill., for defendant-appellant. Appeal from the United States District Court for the
Northern District of Illinois.
Before COFFEY, MANION and KANNE, Circuit Judges.
MANION, Circuit Judge.
[22] B. Discussion
We are somewhat mystified by the grounds of Chase's appeal. In his brief Chase asserts that the court's entry of *370 summary judgment should be set aside
for reasons commonly justifying the application of Fed.R.Civ.P. 60(b), Relief from Judgment or Order. Chase claims that it is unfair for him to be
saddled with a legal result which is strictly the function of his former attorney's "gross negligence" in the defense of this suit below.
Federal Rule of Civil Procedure 60(b) provides a simple remedy (by motion) for a court to suspend a previously announced judgment on the grounds of
mistake, inadvertence, surprise, excusable neglect, misconduct, or, according to Rule 60(b)(6), "any other reason justifying relief from the operation of
the judgment." Chase, in his brief, suggests that "[i]t is well settled that Federal Rule of Civil Procedure 60(b)(6) provides relief from summary judgment
where the gross negligence of counsel has permitted the motion of summary judgment to go unopposed.Boughner v. Secretary of Health, Education and Welfare,572 F.2d 976 (3d Cir. 1978); L.P. Steuart, Inc. v. Matthews, 329 F.2d 234 (D.C. Cir. 1964); Reno v. International Harvester, 115 F.R.D. 6
(S.D.Ohio 1986)." (Appellee's br. p. 12.) Despite the conspicuous absence of Seventh Circuit authority in the above quotation (authority which, had it been
cited, would have been contrary to the stated point),1
Chase's appellate posture is further weakened by his failure to have ever filed a Rule 60(b) motion with the district court. Chase explains in his brief,
however, that:
1.
In Reinsurance Co. v. Administratia Asigurarilor de Stat, 902 F.2d 1275 (7th Cir. 1990), this court held "[D]espite appellant's
contentions, this court had never held that an attorney's gross negligence justifies relief under Rule 60(b). Coleman v. Smith,814 F.2d 1142 (7th Cir. 1987); Inryco, Inc. v. Metropolitan Engineering Co., Inc.,708 F.2d 1225 (7th Cir. 1983);Ben Sager Chemicals International, Inc. v. E. Targosz Co., 560 F.2d 805, 809 (7th Cir. 1977)." Id. at 1278. In a footnote to
that case, citing Daniels v. Brennan, 887 F.2d 783 (7th Cir. 1989), we wrote: "`[t]he
remedy for a client who suffers . . . because of the negligence of his attorney is a malpractice action; Daniels 887 F.2d at 788." Reinsurance, 902 F.2d at 1278.
At the outset, [Chase] states that no Rule 60(b) motion was filed before the District Court. As soon as [Chase] learned of the entry of summary judgment
against him, he [dismissed Royce and] immediately retained current counsel. By that time, notice of appeal had already been filed [on Chase's behalf] with
[the Seventh Circuit] by an attorney affiliated with Attorney Royce. It is fundamental that once notice of appeal is filed, the District Court is divested
of jurisdiction over the case as to the issues on appeal.
(Appellant's br. p. 14.)
This is not an accurate statement concerning the district court's ability to entertain a Rule 60(b) motion during the pendency of an appeal. In Simons v. Gorsuch, 715 F.2d 1248 (7th Cir. 1983), this court stated:
Finally, we turn to the Simonses' motion to vacate the judgment below for fraud and misrepresentation, as provided in Rule 60(b)(3), Fed.R.Civ.P. We first
note that the district court denied the appellants' motion on the ground that it lacked jurisdiction pending direct appeal from the judgment, and
alternatively, on the merits. The district court was incorrect as to its jurisdiction to consider a Rule 60(b) motion. We have held that a district court
has jurisdiction to consider and deny Rule 60(b) motions during the pendency of an appeal, Textile Banking Co. v. Rentschler, 657 F.2d 844, [849-50] (7th Cir. 1981).
Id.
at 1252. A remand is necessary only if the district court is inclined to grant relief. Rentschler, 657 F.2d at 849.
The trial court did not lose jurisdiction to hear a Rule 60(b) motion presented by defendant because of the filing of a notice of appeal.See Standard Oil of California v. U.S., 429 U.S. 17, 18-19,97 S.Ct. 31, 32,50 L.Ed.2d 21 (1976), and SEC v. Advance Growth Capital Corp., 539 F.2d 649, 650 (7th Cir.
1976), overruled in part on other grounds, United States v. City of Chicago, 663 F.2d 1354, 1359 (7th Cir. 1981). Chase should have filed a 60(b) motion with the
district court to preserve for the appellate court (if necessary) his arguments aimed at getting relief from Royce's negligent handling of the case. No
such motion was ever filed, thus depriving the district court *371 of the opportunity to develop a record, review it and then rule on whether Chase
deserves relief from the effects of Royce's obvious negligence. Chase's Rule 60(b) arguments are waived for purposes of appeal.Trustees of Cent. Laborers' Welfare Fund v. Lowery,924 F.2d 731, 732-33 (7th Cir. 1991). 2
Continued...
