Appellate Law

Seventh Circuit Holds Rule 60(b) Reconsideration Motion Not A Substitute For Appeal

By Steven R. Merican

Leo Stoller sued Pure Fishing Incorporated for trademark infringement. Eventually, the federal district court defaulted Stoller and awarded Pure Fishing costs and fees on one of its counterclaims. When Stoller appealed, Pure Fishing moved to require him to post an appeal bond. The trial court granted Pure Fishing?s motion. But instead of filing a bond, Stoller filed another appeal.

The Seventh Circuit Court of Appeals took the second appeal to be a motion to suspend enforcement of the order requiring an appeal bond, then denied the motion. The appellate court also dismissed the first appeal for failure to prosecute ?because Stoller failed to pay the bond or file an appellate brief.?

Stoller?s next move was a Rule 60(b) (Relief from Judgments) motion in the trial court. His arguments, though, ?rehashed the merits of his underlying lawsuit and complained about various orders that had been entered against him in that lawsuit.? After that motion was denied, Stoller appealed again.

The Seventh Circuit affirmed the denial of Stoller?s Rule 60(b) motion. The court ruled that Stoller could not use a Rule 60(b) motion as a substitute for the appeal that had been dismissed. ?The district court?s order here was decidedly not an abuse of its discretion, because all of the arguments in Stoller?s Rule 60(b) motion could have been addressed by this court in the underlying appeal that was dismissed for failure to prosecute. A Rule 60(b) motion is not a substitute for appeal, and thus Stoller?s attempt to use it as such was appropriately rejected.?

Read the whole case, Stoller v. Pure Fishing Inc., No. 07-1936 (5/29/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on June 04, 2008 (boomark / email).