                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2980

L ANELL E SKRIDGE and M ARGARET E SKRIDGE,
individually and as Special Administrators of
the Estate of Michelle R. Eskridge, deceased,

                                                Plaintiffs-Appellants,
                                  v.

C OOK C OUNTY,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 06 C 3884—Blanche M. Manning, Judge.



      A RGUED M AY 28, 2009—D ECIDED A UGUST 17, 2009




 Before E VANS, W ILLIAMS, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. After their daughter tragically
died of pneumonia, Lanell and Margaret Eskridge sued
two Chicago health care facilities for medical malpractice.
The case developed into multiple actions in both Illinois
and federal court, and, amid the procedural complexity,
the Eskridges’ counsel made a critical error. In the
2                                            No. 08-2980

federal district court, counsel obtained a voluntary dis-
missal order that effectively precluded the Eskridges
from pursuing their lawsuit. The Eskridges moved for
relief from that order under Fed. R. Civ. P. 60(b), but
the district court denied their motion. On appeal, the
Eskridges face the formidable challenge of showing that
the court abused its discretion in denying relief under
Rule 60(b). We conclude that the Eskridges have not
met this challenge.


                     I. Background
  In 2004, Michelle Eskridge sought treatment for pneumo-
nia at Access Community Health Network, a Chicago
health care facility that receives funding from the U.S.
Public Health Service, and John H. Stroger, Jr. Hospital,
a hospital operated by Cook County. On or about April 4,
2004, Michelle died of pneumonia while at the Stroger
Hospital. In March 2005, Michelle’s parents, Lanell and
Margaret Eskridge, sued Access and Cook County for
medical malpractice in the Illinois Circuit Court of
Cook County. Because Access and its employees were
deemed employees of the Public Health Service, the
United States removed the case to federal court and
converted the action against Access to one against the
United States under the Federal Tort Claims Act (“FTCA”).
See 42 U.S.C. § 233(a), (c). The district court then dis-
missed the United States without prejudice on the
ground that the Eskridges had not exhausted their ad-
ministrative remedies as required by the FTCA, and
remanded the remainder of the case against Cook County
to the Illinois Circuit Court.
No. 08-2980                                                    3

  In July 2006, after exhausting their administrative
remedies, the Eskridges filed a second lawsuit, this time
in federal court, against the United States and Cook
County; they then voluntarily dismissed the first, re-
manded state-court lawsuit against Cook County. As the
second lawsuit progressed, the Eskridges decided to
drop the United States as a defendant, get out of federal
court, and proceed solely against Cook County in state
court. So on September 13, 2007, the Eskridges filed a
third lawsuit against Cook County in the Illinois Circuit
Court. Shortly thereafter, the Eskridges moved in the
federal lawsuit to voluntarily dismiss the “United States
of America and County of Cook” without prejudice
under Fed. R. Civ. P. 41(a). The district court granted
the motion.
   The Eskridges’ counsel would come to regret this volun-
tary dismissal of the second, federal lawsuit; back in
state court, Cook County was sitting on a solid procedural
defense to the Eskridges’ third lawsuit. Under the Illinois
limitations-saving statute, a plaintiff who voluntarily
dismisses an action “may commence a new action
within one year or within the remaining period of limita-
tion, whichever is greater.” 735 ILCS 5/13-217 (West 1994);
see also Hudson v. City of Chicago, 889 N.E.2d 210, 214 n.1
(Ill. 2008) (explaining that the pre-1995 version of § 13-217
remains in effect due to the unconstitutionality of a
subsequent amendment). The Illinois courts interpret this
language to mean only one “new action,” making the
statute a “single refiling” rule. Timberlake v. Illini Hosp., 661
N.E.2d 1145, 1146 (Ill. App. Ct. 1996), aff’d, 676 N.E.2d
634 (Ill. 1997). The Eskridges were now on their third
4                                               No. 08-2980

lawsuit, or second refiling, against Cook County. So
Cook County seized on the statute and moved to
dismiss the Eskridges’ state-court action with prejudice.
  The Eskridges quickly returned to federal court and
moved under Fed. R. Civ. P. 60(b) for relief from the
voluntary dismissal order that they obtained in the
federal lawsuit. They argued that, when filing the volun-
tary dismissal motion, they intended to dismiss only
the United States as a defendant and continue their case
against Cook County in state court. On April 25, 2008,
the district court denied the Eskridges’ Rule 60(b) motion.
The court reasoned that the Eskridges’ claim that they
intended to dismiss only the United States was not credi-
ble, since their voluntary dismissal motion explicitly
mentioned both “the United States” and “County of
Cook.” The court further concluded that the Eskridges’
counsel’s “procedural misplay” in dismissing the
federal lawsuit was not the type of “mistake or inad-
vertence” for which Rule 60(b) permits relief.
  Rather than appealing the denial of their Rule 60(b)
motion, the Eskridges filed a “motion for reconsidera-
tion” of the court’s order denying relief, which is
properly construed as a second Rule 60(b) motion. See
Bell v. Eastman Kodak Co., 214 F.3d 798, 800 (7th Cir. 2000).
Accompanying the motion was an affidavit from the
Eskridges’ counsel, who stated that he never intended to
dismiss Cook County as a defendant and that he “under-
stood that the lawsuit against Cook County Hospital
would continue in state court.” On July 22, 2008, the
district court denied the motion, reasoning that coun-
No. 08-2980                                                5

sel’s intention to continue a state-court action did not
make the voluntary dismissal of Cook County from
the “federal suit” mistaken or inadvertent.
  The Eskridges filed a notice of appeal on August 1, 2008.
Because that notice came within sixty days of the
district court’s July 22, 2008 order denying the motion
for reconsideration but more than sixty days after the
court’s April 25, 2008 order denying relief under
Rule 60(b), this court limited the Eskridges’ appeal to
review of the July order. See Fed. R. App. P. 4(a)(1)(B)
(requiring that a notice of appeal in a case in which
the United States is a party be filed within sixty days
of the order appealed from).


                       II. Analysis
  Under Fed. R. Civ. P. 60(b)(1), the district court “may
relieve a party . . . from a final judgment, order, or pro-
ceeding for . . . mistake, inadvertence, surprise, or ex-
cusable neglect.” In reviewing the district court’s decision
to deny relief under Rule 60(b), we apply an “extremely
deferential” abuse of discretion standard. Easley v. Kirmsee,
382 F.3d 693, 697 (7th Cir. 2004). Because relief under
Rule 60(b) is “an extraordinary remedy and is granted
only in exceptional circumstances,” a district court
abuses its discretion only when “no reasonable person
could agree” with the decision to deny relief. McCormick
v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000) (cita-
tions omitted).
  In this case, our review is perhaps even more
deferential because we address the district court’s recon-
6                                                 No. 08-2980

sideration of its own Rule 60(b) analysis. Recall that the
Eskridges’ appeal was timely only with respect to the
order denying their “motion for reconsideration” of the
court’s earlier order denying relief under Rule 60(b). We
deem this motion for reconsideration to be a second
Rule 60(b) motion. See Bell, 214 F.3d at 800. So while the
district court already acted with “discretion piled upon
discretion” in denying the Eskridges’ first Rule 60(b)
motion, McCormick, 230 F.3d at 327 (7th Cir. 2000) (citation
omitted), the court’s denial of the second motion
involved even more layers of discretion.
  Examined under this highly deferential standard of
review, the district court’s judgment must stand. As the
court recognized, the Eskridges’ counsel’s procedural
error does not fit neatly into the categories of relief identi-
fied by Rule 60(b)(1). An inadvertent “mistake” that
might justify relief typically involves a misunder-
standing of the surrounding facts and circumstances. See
McCormick, 230 F.3d at 327 (finding no “mutual mistake”
concerning the progress of a settlement agreement that
would justify relief from a dismissal order); Russell v.
Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749
(7th Cir. 1995) (“[Rule 60(b)] was designed to address
mistakes attributable to special circumstances and not
merely to erroneous applications of law.”). In contrast, the
Eskridges’ counsel—the same counsel who represented
the Eskridges through all iterations of their law-
suit—made a “mistake of law” in voluntarily dismissing
the second, federal suit without recognizing Cook
County’s defenses in the third, state suit. Webb v. James,
147 F.3d 617, 622 (7th Cir. 1998); see also Bell, 214 F.3d at
No. 08-2980                                                 7

800 (concluding that the mistake of filing a Rule 60(b)
motion instead of a timely appeal did not justify relief);
Tobel v. City of Hammond, 94 F.3d 360, 361-62 (7th Cir. 1996)
(declining to excuse the plaintiffs’ counsel’s ignorance of
a court rule requiring prompt, responsive briefings);
Helm v. Resolution Trust Corp., 84 F.3d 874, 877-78 (7th
Cir. 1996) (concluding that the plaintiff’s counsel’s citation
of an incorrect jurisdictional provision, resulting in the
dismissal of the suit, was not excusable neglect); cf. Cash
v. Ill. Div. of Mental Health, 209 F.3d 695, 697 (7th Cir.
2000) (Rule 60(b) “is not intended to correct mere legal
blunders” made by the district court, which are cor-
rectable on direct appellate review.).
   It is also difficult to characterize the voluntary
dismissal order as the result of excusable “neglect,” since
the district court entered that order on the Eskridges’ own
motion. Parties frequently cite the “excusable neglect”
prong of Rule 60(b)(1) when seeking relief from the con-
sequences of attorney delay or inattentiveness. See Har-
rington v. City of Chicago, 433 F.3d 542, 546-48 (7th Cir.
2006) (concluding that the plaintiffs’ counsel lacked an
excuse for failing to respond to discovery orders and
appear at a status conference); Easley, 382 F.3d at 697-98
(finding that the plaintiff’s counsel’s failure to comply
with motions deadlines was not excusable neglect); Castro
v. Bd. of Educ. of Chi., 214 F.3d 932, 934-35 (7th Cir. 2000)
(addressing whether the plaintiff’s counsel’s failure to
timely file a pretrial order was excusable neglect). Here,
the district court’s dismissal of the Eskridges’ lawsuit
was not a sanction for their counsel’s neglect; rather, their
counsel asked for that dismissal. Since counsel made a
8                                                  No. 08-2980

“deliberate, strategic choice” to dismiss the federal law-
suit and proceed against Cook County in state court,
counsel’s incorrect assessment of the consequences of that
choice did not compel relief under Rule 60(b). See
McCormick, 230 F.3d at 327.
  We do not say that the type of legal error that occurred
here, based on the pitfalls of parallel federal and state
lawsuits, could never justify relief under Rule 60(b). Cf.
Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (charac-
terizing the voluntary dismissal of a federal habeas
petition that could not be refiled as a “mistake” within the
meaning of Rule 60(b)(1)). Even here, other “relevant
circumstances” highlighted by the Eskridges, including
their sunk litigation costs and interest in reaching the
merits of their case, might have convinced a different
district judge to excuse their counsel’s procedural error.
See Webb, 147 F.3d at 622 (describing the equitable nature
of relief under Rule 60(b)).
  Still, the test on abuse of discretion review is not
whether the district court might have decided differently,
but whether the court’s denial of the Eskridges’ Rule 60(b)
motion was unreasonable. See McCormick, 230 F.3d at
327. In this case, the district judge reasonably con-
cluded that the Eskridges did not qualify for the extra-
ordinary remedy provided by Rule 60(b). The judge
reasoned that the Eskridges, having explicitly asked for a
voluntary dismissal of “Cook County” from the federal
lawsuit, could not claim that this dismissal resulted from
“mistake” or “inadvertence.” The judge also appreciated
the gravity of the decision to deny relief, a decision that
No. 08-2980                                               9

effectively precluded the Eskridges from trying the
merits of their claims arising out of their daughter’s
death. Nonetheless, the judge did not view that unfortu-
nate result as sufficient to convert the Eskridges’
counsel’s “procedural misplay” into a basis for relief
under Rule 60(b). Indeed, reinstating the Eskridges’
lawsuit under Rule 60(b) would only shift the burden of
their counsel’s error to the district court and the defen-
dant. See Tango Music, LLC v. DeadQuick Music, Inc., 348
F.3d 244, 247 (7th Cir. 2003). Though not before us, these
facts suggest that the Eskridges may have the alternative
remedy of an attorney malpractice action, which, unlike a
successive Rule 60(b) motion, would limit the additional
litigation costs to the clients and attorney accountable for
the error. See id.; Easley, 382 F.3d at 699-700 & n.6.
  Bottom line, the circumstances in support of the
Eskridges’ Rule 60(b) motion were not so compelling that
the district court abused its considerable discretion in
denying relief. See Castro, 214 F.3d at 935 (Although “the
circumstances of the present case may arguably con-
stitute excusable neglect . . . they do not compel that
conclusion.”); Webb, 147 F.3d at 622 (“The district court
was not obliged to relieve [the defendant] of the burden
of a unilateral mistake of law . . . .”). The court’s judg-
ment is A FFIRMED.




                           8-17-09
