In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2260
H ERMAN N ELSON, JOEL D ECATUR,
A NDRE L AWSON and E RNEST C ARTER,
Plaintiffs-Appellants,
v.
JANET N APOLITANO, Secretary of the
Department of Homeland Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 2991—Robert M. Dow, Jr., Judge.
A RGUED A PRIL 4, 2011—D ECIDED S EPTEMBER 15, 2011
Before K ANNE, R OVNER and SYKES, Circuit Judges.
R OVNER, Circuit Judge. Herman Nelson, Joel Decatur,
Andre Lawson and Ernest Carter were employed by
the Department of Homeland Security (“DHS”). In 2007,
they filed a six-count employment discrimination suit
2 No. 10-2260
against DHS.1 After the district court granted the defen-
dant’s motion to dismiss two of the counts, DHS failed to
answer the complaint, apparently due to an oversight. In
May 2009, the plaintiffs moved for a voluntary dismissal
without prejudice, pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A). The court granted the motion
and struck as moot all other pending matters in the
case. Nine months later, the plaintiffs moved to
reinstate the case under Federal Rule of Civil Procedure
60(b). The court denied the motion and the plaintiffs
appeal. We affirm.
I.
Nelson, Decatur, Lawson and Carter were Federal Air
Marshals. They charged DHS with race- and age-based
discrimination, as well as retaliation against certain of
the plaintiffs who complained about discriminatory
practices. Approximately two years after filing the com-
plaint, one of the plaintiffs, Andre Lawson, was arrested
for sexual assault. After leaving the Air Marshals,
Lawson had become a home detention officer. In that
capacity, he made monitoring visits to offenders sen-
tenced to home confinement. Lawson eventually pled
guilty to sexually assaulting a woman he was assigned
1
The original complaint named several individual defendants
in addition to DHS. A few months after filing, the plaintiffs
amended the complaint to remove the individual defendants
and to substitute Ernest Carter for one of the original plain-
tiffs, Michael Verre.
No. 10-2260 3
to monitor. After Lawson was arrested but before he
pled guilty, the other plaintiffs, fearing the effect of the
arrest on the case and uncertain of the outcome of Law-
son’s criminal proceedings, decided to request the volun-
tary dismissal of the lawsuit under Rule 41(a)(1)(A).
They were under the impression that they could move
under Rule 60(b) to reinstate the suit within one year.
They anticipated that the criminal matter would be re-
solved by then and they could evaluate whether to
move forward with their suit at that time.
Rule 41 provides for voluntary dismissal of an action
under certain circumstances:
a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without
a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and
66 and any applicable federal statute, the plaintiff
may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party
serves either an answer or a motion for summary
judgment; or (ii) a stipulation of dismissal signed by
all parties who have appeared. (B) Effect. Unless the
notice or stipulation states otherwise, the dismissal
is without prejudice. But if the plaintiff previously
dismissed any federal-or state-court action based on
or including the same claim, a notice of dismissal
operates as an adjudication on the merits.
Fed. R. Civ. P. 41. As we noted, because of an oversight,
DHS had not yet answered the complaint even though
a considerable amount of time had passed, and so the
plaintiffs were entitled to voluntarily dismiss the suit
without leave of court and without a court order, using
4 No. 10-2260
Rule 41(a)(1)(A)(i). Although the plaintiffs miscaptioned
their notice of dismissal as a “Motion for Voluntary
Dismissal Pursuant to FRCP 41(a)(1)(A),” that filing
effected the immediate dismissal of the suit. Smith v.
Potter, 513 F.3d 781, 782 (7th Cir. 2008); Jenkins v. Village
of Maywood, 506 F.3d 622, 624 (7th Cir. 2007). No action
remained for the district court to take. Smith, 513 F.3d
at 782; Jenkins, 506 F.3d at 624. The court’s subsequent
order purporting to dismiss the case was therefore
void and had no legal effect. Smith, 513 F.3d at 782-83.
A suit that is voluntarily dismissed under Rule 41(a)
generally is treated as if it had never been filed. Smith,
513 F.3d at 783; Beck v. Caterpillar, Inc., 50 F.3d 405, 407
(7th Cir. 1995). See also Robinson v. Willow Glen Acad.,
895 F.2d 1168, 1169 (7th Cir. 1990) (the effect of a
voluntary dismissal is to turn back the clock; it is as if
the plaintiff’s lawsuit had never been brought); Szabo
Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1078 (7th
Cir. 1987) (same); United States v. Mount Vernon Memorial
Estates, Inc., 734 F.2d 1230, 1236 (7th Cir. 1984) (same).
Once an action has been dismissed under Rule 41(a)(1)
without prejudice, the plaintiff may bring the suit again
by filing a new complaint. Richmond v. Chater, 94 F.3d 263,
267 (7th Cir. 1996) (filing a new complaint and paying a
new filing fee is generally required following dismissal
without prejudice); Adams v. Lever Bros. Co., 874 F.2d 393,
395-96 (7th Cir. 1989) (refiling a complaint after a Rule
41(a)(1) dismissal requires a new docket fee and compli-
ance with the statute of limitations); McCall-Bey v.
Franzen, 777 F.2d 1178, 1184 (7th Cir. 1985) (Rule 41(a)(1)
allows a plaintiff to “dismiss without the court’s permis-
No. 10-2260 5
sion, and without prejudice to his being able to bring a
new suit, if the defendant has not yet answered the com-
plaint or moved for summary judgment”); Fed. R. Civ.
P. 3 (“A civil action is commenced by filing a com-
plaint with the court.”).
But the plaintiffs here did not file a new lawsuit.
Instead, nine months after the dismissal, and after the
statute of limitations had expired, they filed a “Motion
to Reinstate Complaint Pursuant to FRCP 60(b) that
was Voluntarily Dismissed Without Prejudice.” Without
specifying which of the six subparts of Rule 60(b)
applied, the plaintiffs explained that they sought
voluntary dismissal “following a set of unforeseen cir-
cumstances regarding one of the named plaintiffs that
had a tendency to directly impact on these proceedings
and required additional time to sort out the legal impact
to the plaintiffs’ case in chief.” R. 38, at 2. The plain-
tiffs maintained that charges against one of them had
caught them by surprise, and that they decided for
tactical reasons to dismiss the suit until those charges
were resolved. They sought “reinstatement” of their
complaint and requested a status hearing to set a dis-
covery cut-off date and address pre-trial matters.
DHS responded that the court lacked jurisdiction to
entertain a Rule 60(b) motion in a case that had been
voluntarily dismissed. In the alternative, DHS argued
that the plaintiffs had not demonstrated sufficient
grounds to warrant relief under Rule 60(b). In reply, the
plaintiffs responded that the Rule “is written broadly
enough where the Court is free to consider any reason
for relief.” R. 42, at 4-5.
6 No. 10-2260
II.
The district court was uncertain whether it retained
jurisdiction to consider the Rule 60(b) motion following
a voluntary dismissal under Rule 41(a)(1)(A)(i). Al-
though it is true that a suit that has been voluntarily
dismissed under Rule 41(a)(1)(A)(i) generally is treated
as if it had never been filed, the Supreme Court
and this court have recognized the limits of that charac-
terization. For example, the Supreme Court held that
“a federal court may consider collateral issues after an
action is no longer pending.” Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 395 (1990). Thus, after a voluntary
dismissal under Rule 41(a)(1)(A)(i), a court may still
impose sanctions under Federal Rule of Civil Proce-
dure 11, or adjudicate a criminal contempt charge even
after the action in which the contempt arose has been
terminated. Cooter & Gell, 496 U.S. at 395-96. The Court
noted that the purpose of Rule 41(a)(1) is to limit a plain-
tiff’s ability to dismiss an action. 496 U.S. at 397. Prior
to the promulgation of Rule 41, liberal procedural rules
allowed plaintiffs to dismiss as a matter of right until
the entry of the verdict. Rule 41(a)(1) preserved a
plaintiff’s right to dismiss an action without the permis-
sion of the court or the agreement of the adverse
party only during the (usually) brief period before the
defendant answered or moved for summary judgment,
before the defendant had made a significant commit-
ment of time and money. Cooter & Gell, 496 U.S. at 397.
“Rule 41(a)(1) was not designed to give a plaintiff
any benefit other than the right to take one such dis-
missal without prejudice.” Id. The Court noted that the
No. 10-2260 7
Rule 41(a)(1) and Rule 11 shared the goal of curbing abuses
of the judicial system. Allowing a plaintiff to avoid
Rule 11 sanctions by taking a dismissal would eliminate
the incentive for litigants to investigate carefully before
filing papers. Cooter & Gell, 496 U.S. at 397-98. The
Court therefore concluded that a plaintiff’s voluntary
dismissal under Rule 41(a)(1) did not divest a district
court of jurisdiction to consider a defendant’s Rule 11
motion. 496 U.S. at 398. See also Szabo Food, 823 F.2d at 1077-
79 (noting the limits to treating a Rule 41(a)(1) dismissal
as if the case had never been brought and holding
that courts could award fees under Rule 11 or issue
sanctions for contempt of court even if the plaintiff
had voluntarily dismissed the suit).
A voluntary dismissal pursuant to Rule 41(a)(1)(A)(i),
therefore, does not deprive a district court of jurisdiction
for all purposes. Citing McCall-Bey, DHS now concedes
that a district court retains jurisdiction to consider a
Rule 60(b) motion following a voluntary dismissal. In
McCall-Bey, we said:
An unconditional dismissal terminates federal juris-
diction except for the limited purpose of reopening
and setting aside the judgment of dismissal within
the scope allowed by Rule 60(b).
777 F.2d at 1190. DHS offers the example of a defendant
faking his own death with a fraudulent death certificate
in order to induce a plaintiff to voluntarily dismiss. In
those circumstances, DHS posits that, if all other require-
ments of Rule 60(b) were met, the district court would
be able to grant relief to the plaintiff. We agree that
there may be instances where a district court may grant
8 No. 10-2260
relief under Rule 60(b) to a plaintiff who has voluntarily
dismissed the action.
III.
In this case, however, the district court did not abuse
its discretion in denying the plaintiffs’ Rule 60(b) motion.
Relief under Rule 60(b) is an extraordinary remedy
granted only in exceptional circumstances. Wickens v. Shell
Oil Co., 620 F.3d 747, 759 (7th Cir. 2010); Eskridge v. Cook
County, 577 F.3d 806, 809 (7th Cir. 2009). We review the
district court’s decision to deny a Rule 60(b) motion for
abuse of discretion. Wickens, 620 F.3d at 758; Eskridge, 577
F.3d at 808-09. Rule 60(b) allows a court to relieve a
party 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
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or ex-
trinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or dis-
charged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
No. 10-2260 9
Fed. R. Civ. P. 60(b). The plaintiffs listed all of the sub-
sections of Rule 60(b) in their motion in the district
court but did not specify which applied. Instead, they
contended that they voluntarily dismissed their suit for
equitable and tactical reasons related to their surprise
over the arrest of one of the plaintiffs. Because the dis-
missal was without prejudice, they assumed that they
were entitled to reinstatement so long as they moved
within the one-year period specified in Rule 60(c). Rule
60(c) provides that all motions under Rule 60(b) must be
brought within a reasonable time and, for the first three
reasons set forth in the rule, no more than one year
from the entry of the judgment or order or the date of
the proceeding. Perhaps by citing the one-year limit set
forth in Rule 60(c), the plaintiffs meant to signal reliance
on one of those first three reasons in Rule 60(b). They
failed, however, to set forth any argument or cite
any cases supporting relief on any of those grounds.
On appeal, the plaintiffs confuse the matter further by
claiming that they relied on Rules 60(b)(1), 60(b)(2) and
60(b)(6) in the district court, and that they “could have
relied on the language of Rule 60(b)(5).” Appellants’ Brief,
11-12. Apparently, they expected the district court to de-
termine which section applied and to manufacture their
argument for them. They failed at any point to make
a cogent argument for Rule 60(b) relief under any provi-
sion, and that was reason enough for the district court
to deny the motion. United States v. Thornton, 642 F.3d
599, 606 (7th Cir. 2011) (undeveloped and unsupported
arguments may be deemed waived); United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (a skeletal argu-
10 No. 10-2260
ment does not preserve a claim for appeal). Neither the
district court nor this court are obliged to research and
construct legal arguments for parties, especially when
they are represented by counsel. Judge v. Quinn, 612
F.3d 537, 557 (7th Cir. 2010), amended on denial of reh’g,
387 Fed. Appx. 629 (7th Cir. 2010), cert. denied, 2011 WL
2175218 (2011). The plaintiffs assumed that a Rule 60(b)
reinstatement would be granted as a routine matter after
a voluntary dismissal, and for that reason they made no
attempt to demonstrate that exceptional circumstances
warranted relief from the dismissal. This was simply
a mistake, and a court is not obliged to grant relief
from a lawyer’s mistaken reading of a rule or statute.
Eskridge, 577 F.3d at 810; Webb v. James, 147 F.3d 617, 622
(7th Cir. 1998).
Counsel conceded at oral argument that he assumed
that Rule 60(b) operates the same way as the Illinois
statute governing voluntary dismissals. See 735 ILCS 5/13-
217. That provision specifies that if a plaintiff volun-
tarily dismisses an action, the plaintiff “may commence
a new action within one year or within the remaining
period of limitation, whichever is greater[.]” 735 ILCS 5/13-
217. There is no such safe harbor in the federal rules,
although in federal cases governed by Illinois’ statute
of limitations, we will apply the coordinate tolling rule
set forth in Section 5/13-217. Jenkins, 506 F.3d at 623-
24. The instant case is governed by a federal statute of
limitations, however, so that exception does not help the
plaintiffs here. In federal cases, the limitations period
continues to run after the case is dismissed without
prejudice. Lee v. Cook County, Ill., 635 F.3d 969, 971-72
No. 10-2260 11
(7th Cir. 2011). As counsel acknowledged at oral ar-
gument, he should have moved to stay proceedings
pending the outcome of the criminal case. He did not do
so because he did not wish to reveal to the court or to his
opponent the reason for the stay. This was a tactical
decision based on a mistaken reading of Rule 60. “An
inadvertent ‘mistake’ that might justify relief typically
involves a misunderstanding of the surrounding facts
and circumstances.” Eskridge, 577 F.3d at 809. Counsel
here simply misunderstood the applicable rule of civil
procedure. It is well within a district court’s discretion
to determine whether this kind of mistake or neglect
was excusable. Webb, 147 F.3d at 622. See also Cash v.
Illinois Div. of Mental Health, 209 F.3d 695, 697-98 (7th Cir.
2000) (Rule 60(b) is not intended to correct mere legal
blunders). The district court declined to relieve the plain-
tiffs of the consequences of their tactical decision to
voluntarily dismiss. A court abuses its discretion only
when no reasonable person could agree with the
decision to deny relief. Eskridge, 577 F.3d at 809. There
is no abuse of discretion here.
A FFIRMED.
9-15-11