The full case caption appears at the
end of this opinion. Posner, Chief Judge. The plaintiff fileda Title VII suit in which he claimedamong other things that he had beendenied a promotion on racial grounds, onthe recommendation of his supervisor,Kachenmeister. On March 6, 1998, thedistrict court (Magistrate JudgePallmeyer) granted summary judgment forthe defendant and dismissed the suit. Theplaintiff did not appeal but instead, onMay 1, 1998, filed a motion to reconsiderher decision. In the motion, which wedeem a Rule 60(b) motion because filedmore than 10 days after the judgment,Helm v. Resolution Trust Corp., 43 F.3d1163, 1166-67 (7th Cir. 1995), and whichwas referred to Magistrate Judge Shenkierwhen Judge Pallmeyer was promoted todistrict judge, the plaintiff pointed toevidence that he had not cited to thedistrict court in opposition to thedefendant’s motion–evidence showing, heargued, that Kachenmeister’s grounds forrecommending against the promotion of theplaintiff were pretextual. MagistrateJudge Shenkier denied the Rule 60(b)motion on the ground that one cannotraise an objection to summary judgmentafter it is granted when the objectioncould have been made before. Theplaintiff has appealed, and the defendantresponds that the magistrate judge didnot abuse his discretion in denying themotion, abuse of discretion being thestandard of appellate review of rulingson such motions, Browder v. Director, 434U.S. 257, 263 n. 7 (1978); PublicisCommunication v. True NorthCommunications, Inc., 206 F.3d 725, 730(7th Cir. 2000); 11 Charles Alan Wright,Arthur R. Miller & Mary Kay Kane, FederalPractice and Procedure sec. 2857, p. 255(2d ed. 1995), other than when the groundis that the judgment sought to be vacatedis void, Fed. R. Civ. P. 60(b)(4), aneither-or kind of judgment. New York LifeIns. Co. v. Brown, 84 F.3d 137, 142 (5thCir. 1996). Far from being an abuse of discretion,the denial of the Rule 60(b) motion wasinevitable. The motion could not havebeen granted, because it was nothing morethan the first step in an attempt to takean untimely appeal. The appeal that theplaintiff has taken from the denial ofthe motion is in fact an untimely appealfrom the final judgment that the Rule60(b) motion challenged, and because itis untimely it must be dismissed. To explain: As the plaintiff’s briefsmake clear, and was confirmed atargument, the only basis of the Rule60(b) motion was the plaintiff’s beliefthat Magistrate Judge Pallmeyer (as shethen was), in granting summary judgmentfor the defendant, had overlooked ormisinterpreted key evidence bearing onKachenmeister’s evaluation of theplaintiff’s suitability for promotion.The plaintiff’s only quarrel withMagistrate Judge Shenkier–the only basisfor this appeal–is the latter’s failureto rectify his predecessor’s mistake bygranting the motion. The plaintiff thushad tried to use Rule 60(b) to appeal afinal judgment entered by one magistratejudge to another magistrate judge, ratherthan to the court of appeals. Havingdiscovered his mistake he now seeks touse an appeal from the second magistratejudge’s order denying him relief as thevehicle for getting the review from usthat he could have gotten had he appealedto us from the judgment dismissing hissuit within the 30 days (from March 6,1998) allowed for an appeal. Since thefiling of a Rule 60(b) motion does nottoll the time for filing an appeal fromthe judgment challenged by the motion, itis too late for him to appeal thatjudgment. The appeal is untimely, and wehave no jurisdiction to review untimelyappeals. E.g., Browder v. Director,supra, 434 U.S at 264; Prizevoits v.Indiana Bell Telephone Co., 76 F.3d 132(7th Cir. 1996). The parties, and Magistrate JudgeShenkier, have misunderstood the officeand scope of Rule 60(b). The rule governscollateral attack on a final judgmentrendered by a federal district court in acivil case; and collateral attack,especially in civil cases, is disfavoredbecause of the social interest inexpedition and finality in litigation. Acollateral attack on a final judgment isnot a permissible substitute forappealing the judgment within the time,standardly 30 days, for appealing thejudgment of a federal district court.Oxxford Clothes XX, Inc. v. ExpeditorsInt’l of Washington, Inc., 127 F.3d 574,577 (7th Cir. 1997); Parke-ChapleyConstruction Co. v. Cherrington, 865 F.2d907, 915 (7th Cir. 1989); Latham v. WellsFargo Bank, N.A., 987 F.2d 1199, 1203-04(5th Cir. 1993) (per curiam); 11 Wright,Miller & Kane, supra, sec. 2851, p. 230.The ground for setting aside a judgmentunder Rule 60(b) must be something thatcould not have been used to obtain areversal by means of a direct appeal. Forexample, the judgment might be voidbecause thedefendant had never been madeaware of it and so had no opportunity tochallenge it by means of a direct appeal.Fed. R. Civ. P. 60(b)(4); CentralLaborers’ Pension, Welfare & AnnuityFunds v. Griffee, 198 F.3d 642 (7th Cir.1999); New York Life Ins. Co. v. Brown,supra, 84 F.3d at 142-43; 11 Wright,Miller & Kane, supra, sec. 2862, pp. 326-27. Or the judgment might have beenobtained by a fraud that the losing partycould not have discovered in time to haveit rectified by the court of appeals ondirect appeal. Fed. R. Civ. P. 60(b)(3);Lonsdorf v. Seefeldt, 47 F.3d 893, 898(7th Cir. 1995); Philips Medical SystemsInt’l B.V. v. Bruetman, 8 F.3d 600, 606-07 (7th Cir. 1993); Frederick v. KirbyTankships, Inc., 205 F.3d 1277, 1287(11th Cir. 2000); 11 Wright, Miller &Kane, supra, sec. 2860. Or newlydiscovered evidence that could not havebeen obtained at the time of the originallitigation may show that the judgment waserroneous. Fed. R. Civ. P. 60(b)(2);Publicis Communication v. True NorthCommunications Inc., supra, 206 F.3d at730; Jones v. Lincoln Elec. Co., 188 F.3d709, 732-36 (7th Cir. 1999); Schwieger v.Farm Bureau Ins. Co., 207 F.3d 480, 487(8th Cir. 2000); 11 Wright, Miller &Kane, supra, sec. 2859. Or, if thejudgment was an equitable one that hadremained in effect for many years,changed circumstances may have made itobsolete, Fed. R. Civ. P. 60(b)(5);Agostini v. Felton, 521 U.S. 203, 238-39(1997); 11 Wright, Miller & Kane, supra,sec. 2863, pp. 336-38; id. at 51-52(Supp. 2000); obviously those changedcircumstances could not have beenpresented to the appellate court in adirect appeal from the judgment whenentered. We need not canvass the other possiblegrounds for a Rule 60(b) motion. Thecommon thread is that like the ones we’vediscussed they are grounds that couldnot, in the circumstances, have beenpresented in a direct appeal. That is whya lack of subject-matter jurisdiction isnot by itself a basis for deeming ajudgment void, that is, open tocollateral attack. Durfee v. Duke, 375U.S. 106, 116 (1963); Chicot CountyDrainage District v. Baxter State Bank,308 U.S. 371, 377 (1940); In re FactorVIII or IX Concentrate Blood ProductsLitigation, 159 F.3d 1016, 1019 (7th Cir.1998); In re Edwards, 962 F.2d 641, 644(7th Cir. 1992); Hernandez v. ConrivRealty Associates, 182 F.3d 121, 123 n. 3(2d Cir. 1999); 11 Wright, Miller & Kane,supra, sec. 2862, p. 331. For ordinarilythat is a ground for reversal that can bepresented to the appellate court ondirect appeal. To allow a ground that canbe adequately presented in a directappeal to be made the basis of acollateral attack would open the door tountimely appeals, the spectre that thiscase illustrates. The losing party couldreserve the ground until he had presentedit unsuccessfully to the district courtin the form of a Rule 60(b) motion. Thatis not permitted and this means thatJudge Shenkier should not have consideredthe merits of the plaintiff’s motion. Heshould have dismissed it upon determiningthat it presented no ground for reliefthat could not have been presented by wayof an appeal from the final judgmentrendered by Judge Pallmeyer. The closest the plaintiff comes tosuggesting a valid basis for a collateralattack on the judgment (and it’s notclose) is when he tells us that certainevidence favorable to him “was notpresented when it should have been due tothe fact that the two lawyers who workedon the case left [the law firm thatrepresented the plaintiff in the districtcourt], one during discovery and oneduring the Summary Judgment period.Plaintiff dropped [that firm] and securednew counsel in December of 1998, tohandle this appeal.” In other words, theplaintiff is arguing ineffectiveassistance of counsel, and while that isa ground for a collateral attack on acriminal judgment, e.g., Hernandez v.Cowan, 200 F.3d 995 (7th Cir. 2000), itis not a basis for collateral attack on acivil one. Sparrow v. Heller, 116 F.3d204, 206-07 (7th Cir. 1997); Helm v.Resolution Trust Corp., 84 F.3d 874, 878-79 (7th Cir. 1996); United States v. 817N.E. 29th Drive, 175 F.3d 1304, 1311 n.14 (11th Cir. 1999). The exclusive remedyfor legal malpractice in a civil case, asthese cases explain, is a suit formalpractice or for breach of fiduciaryduty. The plaintiff’s appeal, therefore,which we have recharacterized as anattempt to take an untimely appeal fromthe final judgment entered by JudgePallmeyer, must be dismissed withdirections that the denial of theplaintiff’s Rule 60(b) motion beconverted to a dismissal because themotion was outside the scope of the rule. It remains only to note our puzzlementat the reassignment of this case toMagistrate Judge Shenkier. Remember thatJudge Pallmeyer had dismissed theplaintiff’s suit on March 6, 1998. Themotion for reconsideration was filed onMay 1 and assigned to her. A footnote inJudge Shenkier’s order reports that onOctober 30, Magistrate Judge Pallmeyerhaving become District Judge Pallmeyer,the motion to reconsider was reassignedto him. This produced the oddity of anArticle I judicial officer reconsideringthe decision of an Article III judicialofficer. But the greater oddity (sincePallmeyer was a magistrate judge when sheissued the rulings in question) is whypromotion from magistrate judge todistrict judge should be the occasion forreassigning long-pending motions toreconsider the judge’s rulings. Bothtypes of judge are officers of the samecourt, and when a magistrate judgepresides over a lawsuit with the consentof the parties she is exercisingessentially the powers of a districtjudge, so that promotion to districtjudge does not alter her relation to thecase in any significant way. The powersof federal judicial officers are given bystatute, but no statute, or principle offederal common law, forbids a districtjudge to reconsider an order that sheissued when she was a magistrate judge ofthe same court. It is not as if themotion for reconsideration had been filedafter Judge Pallmeyer’s promotion; it hadbeen pending before her for six monthswhen it was reassigned to MagistrateJudge Shenkier. Appeal Dismissed.
Bell v. Eastman Kodak Co. In theUnited States Court of AppealsFor the Seventh Circuit No. 98-4142 Cephus Bell, Plaintiff-Appellant, v. Eastman Kodak Company, Defendant-Appellee. Appeal from the United States District Courtfor the Northern District of Illinois, EasternDivision. No. 95 C 4687–Sidney I. Schenkier, MagistrateJudge. Argued April 6, 2000–Decided May 25, 2000 Before Posner, Chief Judge, and Flaum andRipple, Circuit Judges.
