Opposition Brief — Wilson v. State Farm Fire & Casualty Insurance

—

J Supreme Co! ; = S.

No. 95-1285 FILE yp

i, AR 15 19 34

In The

Supreme Court of the United-Stertes—

—>

October Term, 1995

ROBERT WILSON,

Petitioner,

P vs.

STATE FARM FIRE & CASUALTY COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

FREDERICK J. SUDEKOUM, III

Counsel of Record

BARBARA DEL GRECO

SUDEKUM, ROSENBERG, &

CASSIDY, CHTD.

30 West Monroe Street

Suite 1450

Chicago, Illinois 60603

(312) 803-6250

MICHAEL RESIS

QUERREY & HARROW, LTD.

180 North Stetson Avenue

Suite 3500

Chicago, Illinois 60601

(312) 540-7000

Attorneys for Respondent

(800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21

ervices, inc.

i

QUESTIONS PRESENTED

1. Whether Petitioner has properly demonstrated that the

September 13, 1995 decision of the United States Court of

Appeals for the Seventh Circuit warrants review by the Supreme

Court of the United States?

2. Whether the United States Court of Appeals for the

Seventh Circuit properly found that the United States District

Court for the Northern District of Illinois did not abuse its

discretion in denying Petitioner relief from the prior judgment

entered on June 25, 1992 in favor of Respondent?

3. Whether the United States District Court for the

Northern District of Illinois and United States Court of Appeals

for the Seventh Circuit properly denied Petitioner’s motion for

appointment of counsel?

4. Whether the United States District Court for the

Northern District of Illinois properly dismissed Petitioner’s

Complaint against Respondent by its order of June 25, 1992?

ii

LIST OF PARTIES TO THE PROCEEDING

Petitioner is Robert Wilson, who was the Plaintiff-

Appellant in the proceedings before the United States District

Court for the Northern District of Illinois and before the United

States Court of Appeals for the Seventh Circuit. Respondent is

State Farm Fire & Casualty Company, which was the Defendant-

Appellee before the United States District Court for the Northern

District of Illinois and before the United States Court of Appeals

for the Seventh Circuit.

iii

RULE 29.6 DISCLOSURE STATEMENT

Docket No.: 95-1285

Short Title: Robert Wilson v. State Farm Fire and Casualty

Company

(1) The full name of every party or amicus the attorney

represents in the case:

State Farm Fire and Casualty Company

(2) Ifsuch party or amicus is a corporation:

(i) Its parent corporation, if any:

State Farm Mutual Automobile

Insurance Company

(ii) Its non-wholly owned subsidiaries, if

any:

None

iv

TABLE OF CONTENTS

Page

NE gos deca ntckencecesascceuees i

List of Partiestothe Proceeding ................... ii

Rule 29.6 Disclosure Statement .................... iil

ED hc yank dco dah a dean enue eae iv

re eT re Tr ar Vv

Pre rere ]

ET. 06a. 00's vs coh is cent a bass cawas 2

TT CEI, nooo ns on deo neon ddsnsesees 5

Reasons for Denyingthe Writ ..................... 6

I. Petitioner Has Failed to Establish that the

Decision of September 13, 1995 of the United

States Court of Appeals for the Seventh Circuit

Warrants Review by the United States Supreme

PP eC ee ET eT TE POT Tr ee oor 6

II. Petitioner Was Not Entitled to Relief From the

Prior Judgment in Favor of Respondent. ...... 9

RK. FOGG cic ce cds acct éecingsass 9

B. The Denial of Relief Under Rule 60(b) Was

POP ETeT Tee eT err rT re Terry 1]

Vv

Contents

Page

III. Petitioner’s Motion to Appoint Counsel Was

PU NS Fh ieee adi bas. 18

A. Standard for Appointment of Counsel in Civil

OE SeWeslcerteend oo ae 18

B. Petitioner’s Request for Counsel Was

Properly Denied ...................... 19

IV. The District Court Properly Dismissed

Petitioner’s Complaint by its Order of June 25,

ee CE rT eee he) ae 20

A. Petitioner’s Complaint Did Not Set Forth a

Valid Constitutional Claim. ............. 21

B. The District Court Properly Declined to

Review the State Court mulings. .......;. 23

C. Petitioner’s Federal Claims Are Barred by

UOT 666.5 hk obi vik cckan ced, 25

COUN S56 Ch ey LG tcencins dd eisve Sidon 26

TABLE OF CITATIONS

Cases Cited:

Bank v. Hartford Accident & Indemnity Co., 737 F.2d 657

GENE edi ticriiekcenedks nunc 14

Barkauskas v. Lane, 946 F.2d 1292 (7thCir.1991) .... 18

vi

Contents

Page

Beard v. O'Neal, 728 F.2d 894 (7th Cir 1984), cert. denied,

469 U.S. 825, 105 S.Ct. 104(1984) .............. 25

Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969) ....... 8

Browder vy. Director, Department of Corrections of

Illinois, 434 U.S.257,98S.Ct.556(1978) ........ 8,21

Bunker Ramo Corp. v. United Business Forms, Inc., 713

Pe POEs PUNE vs WNidoc vc deseedece cues 25

Caruth v. Pinkney, 683 F.2d 1044 (7th Cir. 1982), cert.

denied, 459 U.S. 1214, 103 S.Ct. 1212(1983) ..... 18,19

Central States, Southeast & Southeast Areas Pension

Fund v. Conaway, 1991 U.S. Dist. LEXIS 15495 (N.D.

Se ED <Q lda Au Rede & o's Wane a Rk diow ew alee we 10, 11,15

De la Torre v. Continental Insurance Co., 15 F.3d 12 (1st

Re ND 6.4 6b in sakes ov cache aed ede e ea céae 8

Dickerson v. Board of Education of Ford Heights, Illinois,

Bee SE GEE, FSFE) o ccccevcncevctevetwe 11,15

Harold Washington Party v. Cook County, 984 F.2d 875

(7th Cir. 1993), cert. denied, 126L.Ed.2d54, 114S.Ct.

MOL ca wude eae ueeenee eden eueeeretees 21

Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987) ..... 18,19

vii

Contents

Page

Landers Seed Company v. Champaign National Bank, 15

F.3d 729 (7th Cir. 1994), cert. denied, 130L.Ed.2d 20,

ke erry Pre 23,24, 25

Lassiter v. Department of Social Services, 452 U.S.18,68 .

ek | ry rere 8

Lawline v. American Bar Association, 956 F.2d 1378 (7th

Ce SE Ceath eb enna tied bene cuneteVadk aos 16,22

Lokmar Yazid Abdul-Wadood v. Duckworth, 860 F.2d 280

(7th Cir. 1988), overruled on other grounds, 940 F.2d

i | ERE Pre nie me 18

Margoles v. Johns, 798 F.2d 1069 (7th Cir. 1986), cert.

denied, 482 U.S. 905, 107 S. Ct. 2482 (1987) ....... 11,15

Nelson v. Redfield Lithograph Printing, 728 F.2d 1003

EE oo hrc bw Cuu Gan cue 66 ob oon ee eis 8

Pantoja v. Texas Gas & Transmission Corporation, 890

F.2d 955 (7th Cir. 1989), cert. denied, 497 U.S. 1024,

So ee ERED 1096 vasn ce bbdtewnvicesuees 12, 13

Reuber v. United States, 829 F.2d 133 (D.C. Cir. 1987) . 8

Scott v. Younger, 739 F.2d 1464 (9th Cir. 1984) ........ 8

United States v. Golden Elevator, 27 F.3d 301 (7th Cir.

NS beds ae ee ee ae re a ot 10

viii

Contents

Page

United States v. Payne, 741 F.2d 887 (7th Cir. 1984) ... 11

Wesco Products Co. v. Alloy Auto Company, 880 F.2d 981

CP: CUE sivas eee cake keneeuneaaneaneie 14

Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523 (N.D.

SOE bibs CA ncn ke to 0 ars WEA Rae eeeens 16,22

Williams v. Hatcher, 840 F.2d 993 (7th Cir. 1989) ..... ee,

Statutes Cited:

pe | errr errr rr errr errr errr l

uP oe | Peers ee errr ee Tre eT reece ris 23

United States Constitution Cited:

POUPIROITRAMIUNEIIONE oo oon sevice decccvcsssenss 1,3, 20

Rules Cited:

Federal Rule of Civil Procedure 12(b) ............... 15,19

Federal Rule of Civil Procedure 60(b) ...............

ae pr ere ery TT 4,7,8,9, 10, 11,12, 13, 14, 15,21

Federal Rule of Civil Procedure 60(b)(2) ............ 14

Federal Rule of Civil Procedure 60(b)(3) .......... 13,15, 16

Federal Rule of Civil Procedure 60(b)(4) ............ 14

ix

Contents

Page

Supreme Court Rule 10 ..................ccccceeee 6

Supreme Court Rule 13.1 .................. cee eeee 2

2

Supreme Court Rule See coon We. ree eo.

l

STATEMENT OF JURISDICTION

The Respondent believes Petitioner’s Statement of

Jurisdiction to be incomplete and therefore files the following

jurisdictional statement.

On or about March 12, 1992, Petitioner, Robert Wilson,

filed a complaint against Respondent, State Farm Fire &

Casualty Company, in the United States District Court for the

Northern District of Illinois, entitled Wilson v. State Farm Fire

& Casualty Company, and docketed to No. 92 C 1770. In his

complaint, Petitioner alleged violations of due process and equal

protection under the Fourteenth Amendment to the United States

Constitution. Accordingly, Petitioner alleged that subject matter

jurisdiction in the United States District Court was based upon

the provisions of 28 U.S.C. § 1331 (federal question

jurisdiction). The United States District Court dismissed

Petitioner’s action on June 25, 1992 and, on appeal, the United

States Court of Appeals for the Seventh Circuit summarily

affirmed the decision of the United States District Court by an

unpublished order dated September 30, 1992.

On or about June 9, 1994, Petitioner filed two motions with

the United States District Court for the Northern District of

Illinois. Petitioner filed a motion to present a jurisdictional

question, which raised two issues: (1) whether the District Court

had jurisdiction to dismiss his complaint on June 25, 1992 when

“there is no claim filed, and there is no defendant without a

claim;” and (2) whether the District Court’s dismissal of the

complaint by order dated June 25, 1992 deprived Petitioner of

due process and equal protection of the law. Petitioner also filed

a motion for appointment of counsel.

Both of Petitioner’s motions were denied by the United

States District Court by order dated June 27, 1994. On July 5,

2

1994, Petitioner filed a motion to withhold ruling on the motion

to present a jurisdictional question until the motion for

appointment of counsel was resolved. This motion was denied

by the District Court by order dated July 6, 1994.

Petitioner thereafter filed a notice of appeal to the United

States Court of Appeals for the Seventh Circuit. By order dated

September 13, 1995, the United States Court of Appeals for the

Seventh Circuit determined that the District Court did not abuse

its discretion in denying Petitioner’s Motion to Vacate the

judgment of June 25, 1992. Furthermore, the United States

Court of Appeals concluded that the District Court did not abuse

its discretion in denying Petitioner’s Motion for Appointment of

Counsel.

Petitioner filed a petition for rehearing which was denied by

the United States Court of Appeals for the Seventh Circuit by

order dated December 13, 1995. Accordingly, this Honorable

Court has jurisdiction to review the decision of the United States

Court of Appeals dated September 13, 1995 pursuant to Supreme

Court Rule 13.1 and 13.4.

STATEMENT OF THE CASE

The Respondent also believes that Petitioner’s Statement of

the Case to be materially incorrect and, therefore, files the

following Statement of the Case, setting forth the pertinent

factual and procedural background.

On or about March 12, 1992, Petitioner commenced an

action against Respondent in the United States District Court for

the Northern District of Illinois. In his complaint, Petitioner

alleged that on or about February 7, 1983, he renewed his

homeowner’s insurance for coverage on property located at

15420 South Vine Street, Harvey, Illinois and that on June 27,

_

3

1983, a tenant damaged his property. Petitioner further alleged

that his claim with Respondent was denied or about March 5,

1986 and that by reason of the denial of his claim by Respondent,

he had been denied due process and equal protection under the

Fourteenth Amendment of the United States Constitution. '

Petitioner’s complaint was dismissed with prejudice by the

United States District Court on June 25, 1992, on the grounds

that Petitioner had not set forth any valid constitutional claim.

The decision of the United States District Court was thereafter

affirmed by the United States Court of Appeals for the Seventh

Circuit on September 30, 1992.

On or about June 9, 1994, Petitioner filed with the United

States District Court motions to present a jurisdictional question

and motion for appointment of counsel. Petitioner’s motion to

present a jurisdictional question raised two issues: (a) whether

the District Court had jurisdiction to dismiss the complaint on

June 25, 1992 when “there is no claim filed, and there is no

defendant without aclaim;” and (b) whether the District Court’s

1. Prior to his federal court action, Petitioner filed an action arising out

of the same loss of June 27, 1983 against Respondent in the Circuit Court of

Cook County on or about March 3, 1987, docketed to No. 87 CH 2006.

Petitioner's state court action was dismissed with prejudice by the Circuit

Court of Cook County, Illinois on November 16, 1988 on the basis that

Petitioner failed to file his action within one year of the date of loss in

compliance with the provisions of the policy of insurance. The Circuit Court

of Cook County also denied Petitioner's motion to reconsider on January 20,

1989. The dismissal of Petitioner's complaint was subsequently affirmed by

the Appellate Court of Illinois for the First District, Third Division on May 23,

1990. The Appellate Court of Illinois also denied Petitioner's petition for

rehearing on October 31, 1990. The Illinois Supreme Court thereafter denied

Petitioner's petition for leave to appeal by order dated February 6, 1991.

Finally, Petitioner filed a petition for writ of certiorari, which was denied by

the United States Supreme Court on October 7, 1991.

4

dismissal of the complaint by order dated June 25, 1992 deprived

Petitioner of due process and equal protection.

Both of Petitioner’s motions were denied by the United

States District Court by order dated June 27, 1994. The District

Court construed Petitioner’s motion as a motion for relief from

judgment pursuant to F.R.C.P. 60(b) and concluded that such

motion was untimely. The District Court further determined that

even if said motion was timely, Petitioner’s allegations of fraud

on the part of Respondent would not form the basis of a due

process or equal protection claim.

On or about July 5, 1994, Petitioner filed a motion to

withhold ruling on his motion to present a jurisdictional question

until the motion for appointment of counsel was resolved.

Petitioner’s motion to withhold ruling was denied by the United

States District Court by order dated July 6, 1994.

Petitioner thereafter appealed to the United States Court of

Appeals for the Seventh Circuit. In conjunction with his appeal,

Petitioner filed a motion to appoint counsel on July 29, 1994,

however, the Court of Appeals denied that motion by order dated

December 6, 1994.

By order dated September 13, 1995, the Court of Appeals

concluded that Petitioner’s motion to present a jurisdictional

question was properly construed by the District Court as a

motion for relief under F.R.C.P. 60(b). Furthermore, the Court

of Appeals held that the motion was untimely since the motion

was not filed within one year of the judgment from which relief

was sought. Moreover, the Court of Appeals concluded that the

District Court did not abuse its discretion in denying Petitioner’s

motion for relief from the prior judgment. Finally, the Court of

Appeals upheld the District Court’s denial of Petitioner’s motion

for appointment of counsel.

5

Although Petitioner filed a petition for rehearing, it was

denied by the Seventh Circuit Court of Appeals by order dated

December 13, 1995.

SUMMARY OF ARGUMENT

Initially, Respondent asserts that Petitioner has not

demonstrated that the decision rendered by the United States

Court of Appeals for the Seventh Circuit dated September 13,

1995 warrants review by this Honorable Court. Petitioner has

not established that the Seventh Circuit Court of Appeals

rendered a decision in conflict with the decision of another

United States court of appeals on the same question, nor has he

shown that the Seventh Circuit Court of Appeals has decided a

federal question in a way in conflict with a state court of last

resort and/or with the decisions of this Court. Moreover,

Petitioner has not established that this case presents an important

question of federal law that has not been, but should be, decided

by this Court.

Although Petitioner appears to argue in his Petition for Writ

of Certiorari that the Court of Appeals, in reaching its decision of

September 13, 1995, departed so far from the accepted and usual

course of judicial proceedings that this Court must exercise its

supervisory power, review of the decision discloses that this

matter was clearly decided by the court fully in accordance with

existing federal case law.

Furthermore, for the reasons more fully outlined below,

Respondent contends that the court below properly determined

that Petitioner was not entitled to relief from the prior District

Court judgment of June 25, 1992 and that he was not entitled to

appointed counsel. Again, the decision of the Court of Appeals

was entirely consistent with applicable federal precedent.

6

REASONS FOR DENYING THE WRIT ~

I.

PETITIONER HAS FAILED TO ESTABLISH THAT

THE DECISION OF SEPTEMBER 13, 1995 OF THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT WARRANTS REVIEW BY THE

UNITED STATES SUPREME COURT.

Initially, Respondent notes that Petitioner has failed to

demonstrate that the Seventh Circuit Court of Appeals’ ruling of

September 13, 1995 merits review by this Court. United States

Supreme Court Rule 10 sets forth the various criteria which may

be considered by the United States Supreme Court in deciding

whether to grant a petition for writ of certiorari. These criteria

include, but are not limited to: (1) whether the federal Court of

Appeals has decided the case in conflict with the decision of

another federal Court of Appeals on the same matter; (2) whether

the federal Court of Appeals has decided a federal question in a

way that isin conflict with a decision of a state court of last resort;

(3) whether the federal Court of Appeals has so far departed from

the accepted and usual course of judicial proceedings, or

sanctioned such a departure by the lower court; or (4) whether the

federal Court of Appeals has decided an important question of

federal law which has not been but should be settled by the

United States Supreme Court or has decided a federal question in

conflict with applicable decisions of the United States Supreme

Court.

It would appear that Petitioner argues, under United States

Supreme Court Rule 10, that the federal District Court and/or

Seventh Circuit Court of Appeals departed from the accepted and

usual course of judicial proceedings that the exercise of the

Supreme Court’s power is necessary. Specifically, Petitioner

7

appears to argue that the courts below did not require proper

jurisdiction before deciding this case because he asserts that he

never filed aclaim with Respondent.

However, Petitioner cites no pertinent case law in support of

this proposition. Moreover, as the Seventh Circuit Court of

Appeals correctly noted, Petitioner “submitted his dispute with

State Farm concerning his coverage to the District Court. He

cannot now change his tune and claim that the basis of his own

suit is questionable.” Thus, clearly, Petitioner has not

established that the Seventh Circuit Court of Appeals departed

from the accepted and usual course of judicial proceedings.

Furthermore, Petitioner has cited no federal case law which

would demonstrate that the Seventh Circuit Court of Appeals

rendered a decision in this matter which conflicts with the

decision of another federal Court of Appeals on the same

question. Nor has Petitioner cited any federal or state case law

which shows that the ruling of the Seventh Circuit Court of

Appeals on a federal question conflicts with the ruling of a state

court of last resort. Furthermore, Petitioner has cited no case law

demonstrating that the Seventh Circuit Court of Appeals decided

a federal question in conflict with the decisions of this court.

Finally, the questions presented in this case regarding when

relief under F.R.C.P. 60(b) is appropriate as well as the right of a

litigant tocounsel in acivil case have previously been ruled upon

in a similar manner by this court and/or other federal Courts of

Appeals. In fact, the decision of the Seventh Circuit Court of

Appeals in this case is entirely compatible with applicable

federal precedent.

For example, other federal Courts of Appeals, as well as this

court, have applied an abuse of discretion standard in

determining whether a federal district court properly denied

relief under F.R.C.P. 60(b). See Browder v. Director, Department

of Corrections of Illinois, 434 U.S. 257, 263, 98 S. Ct. 556 (1978);

De la Torre v. Continental Insurance Co., 15 F.3d 12, 14 (1st Cir.

1994); Reuber v. United States, 829 F.2d 133, 141 (D.C. Cir.

1987). Additionally, Respondent notes that, like the Seventh

Circuit Court of Appeals in the present case, the Court of Appeals

for the Ninth Circuit has held that a one year limitation applies to

motions for relief under F.R.C.P. 60(b) when based upon fraud.

Scott v. Younger, 739 F.2d 1464 (9th Cir. 1984).

Furthermore, the ruling of the Seventh Circuit Court of

Appeals with respect to Petitioner’s request for appointment of

counsel is likewise consistent with applicable federal precedent.

See Lassiter v. Department of Social Services, 452 U.S. 18,68 L.

Ed. 2d 640 (1981). In Lassiter, this Court held that the trial court

did not err in refusing to appoint counsel in a proceeding to

terminate parental rights. The court in Lassiter noted that under

the Due Process Clause, an indigent litigant has the right to court-

appointed counsel only when, if he loses, he may deprived of

personal liberty. Lassiter, 452 U.S. at 26.

Similarly, in Nelson v. Redfield Lithograph Printing, 728

F.2d 1003, 1004 (8th Cir. 1984), the Eighth Circuit Court of

Appeals noted that there is noconstitutional or statutory right for

an indigent litigant to have counsel appointed in acivil case. See

also Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir. 1969).

Because Petitioner has not demonstrated that the decision of

the Seventh Circuit Court of Appeals warrants review by this

Court, the Petition for Writ of Certiorari should be denied.

9

ie tl.

PETITIONER WAS NOT ENTITLED TO RELIEF

FROM THE PRIOR JUDGMENT IN FAVOR OF

RESPONDENT.

As set forth above, Petitioner filed two motions on or about

June 9, 1994. These motions were construed by the United

States District Court as a motion for relief from judgment

pursuant toF.R.C.P.60(b). The District Court denied Petitioner

relief from its prior judgment of June 25, 1992 entered in favor

of Respondent, holding that Petitioner’s motion was untimely.

The District Court further concluded that even if Petitioner’s

motion was deemed to be timely filed, the allegations of fraud on

the part of Respondent would not form the basis of a due process

or equal protection claim.

On appeal, the United States Court of Appeals upheld the

determination of the District Court. For the reasons set forth

below, Respondent asserts that the Court of Appeals correctly

determined that Petitioner was not entitled to relief under

F.R.C.P. 60(b).

A. Scope of Review

F.R.C.P. 60(b) provides in pertinent part:

On motion and upon such terms as are just,

the court may relieve a party ora party’s legal

representative from a final judgment, order,

or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect;

10

(2) newly discovered evidence which by

due diligence could not have been

discovered in time to move for a new trial

under Rule 59(b);

(3) fraud (whether heretofore

denominated intrinsic or extrinsic),

misrepresentation, or other misconduct

of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied,

released, or discharged, or a prior

judgment upon which it is based has been

reversed or otherwise vacated, or it is no

longer equitable that the judgment

should have prospective application; or

(6) any other reason justifying relief

from the operation of the judgment.

This Rule further provides that a motion pursuant to Rule 60(b)

shall be made within a reasonable time, and for reasons (1), (2),

and (3), the motion must be made no more than one year after the

judgment, order or proceeding was entered or taken. See United

States v. Golden Elevator, 27 F.3d 301, 303 (7th Cir. 1994);

Central States, Southeast & Southeast Areas Pension Fund v.

Conaway, 1991 U.S.Dist. LEXIS 15495 (N.D. Ill. 1991) (motion

made under subsections 1-3 must be made within one year after

judgment or order entered; as to all Rule 60(b) subsections, the

motion must be made within a reasonable time).

Whether a motion for relief from judgment has been filed

within a reasonable period of time must be determined by

11

examining the particular facts of each case, the reason for the

delay, the practical ability of the litigant to learn earlier of the

grounds relied upon, and the prejudice to the other party if the

judgment is revisited. Margoles v. Johns, 798 F.2d 1069, 1073

(7th Cir. 1986), cert. denied, 482 U.S. 905, 107 S. Ct. 2482

(1987).

A motion to vacate a judgment or order pursuant to Rule

60(b) is addressed to the sound discretion of the district court and

the denial of a Rule 60(b) motion may be reversed only when the

district court has abused its discretion. Williams v. Hatcher, 840

F.2d 993, 995 (7th Cir. 1989). Abuse of discretion in denying a

Rule 60(b) motion is established only when noreasonable person

could agree with the district court; there is no abuse of discretion if

a reasonable person could not disagree as to the propriety of the

court’s action. Williams, 840 F.2d at 995; see also United States

v. Payne, 741 F.2d 887, 895 (7th Cir. 1984) (abuse of discretion

standard to be applied when reviewing district court’s denial of

relief under Rule 60(b)).

Furthermore, Rule 60(b) is an extraordinary remedy and

should be granted only in exceptional circumstances. Dickerson

v. Board of Education of Ford Heights, Illinois, 32 F.3d 1114,

1116 (7th Cir. 1994); Central States, Southeast & Southeast

Areas Pension Fund v. Conaway, 1991 U.S.Dist. LEXIS 15495

(N.D. Ill. 1991). There is a strong policy in favor of the finality

of judgments; judgments in civil cases fix the rights of the parties

and entitle them to go about their live and may be re-opened only

for extraordinary reasons. Margoles v. Johns, 798 F.2d 1069,

1072 (7th Cir. 1986), cert. denied, 482 U.S. 905, 107S. Ct. 2482

(1987).

B. The Denial of Relief under Rule 60(b) Was Proper

With the foregoing scope of review in mind, Respondent

asserts that the Court of Appeals properly determined that

12

Petitioner was not entitled to relief from the prior judgment in

favor of Respondent entered on June 25, 1992.

As stated by the District Court in its opinion, to the extent

that Petitioner was seeking relief under subsection 3 of Rule

60(b) based upon the alleged fraud or misconduct of an adverse

party, such motion was untimely. As set forth above, the District

Court previously dismissed Petitioner’s complaint with

prejudice on June 25, 1992 and this decision was summarily

affirmed by the Court of Appeals on September 30, 1992.

Petitioner’s motions of June 9, 1994 alleged that Respondent

fraudulently denied him coverage under a policy of insurance.

However, Petitioner’s motion of June 9, 1994 was not filed until

almost two years had elapsed after the District Court dismissed

his complaint. Accordingly, the District Court determined, and

the Court of Appeals properly affirmed, that because Petitioner’s

motion was based upon alleged fraud on the part of Respondent,

Petitioner’s motion was untimely since it was filed more than one

year after the prior judgment was entered. Pantoja v. Texas Gas

& Transmission Corporation, 890 F.2d 955, 960 (7th Cir. 1989),

cert. denied, 497 U.S. 1024, 110S. Ct. 3272 (1990).

In Pantoja v. Texas Gas & Transmission Corp.,890 F.2d 955

(7th Cir. 1989), the plaintiffs filed an action in state court

alleging that the defendants discharged them in retaliation for

filing and pursuing an earlier lawsuit against them in federal

court in 1977. The defendants removed the case to federal court

and the district court subsequently dismissed the complaint on

the basis that the plaintiffs failed to exhaust their grievance

remedies under the parties’ collective bargaining agreement and

because the statute of limitations had expired.

The plaintiffs in Pantoja then filed a motion to vacate

which, in part, attacked the prior judgment entered in 1977,

alleging that the prior judgment was obtained through fraud on

13

the part of their own attorney and that the district court judge

improperly failed to recuse himself in the 1977 action. The

district court denied the plaintiffs’ motion to reconsider the 1977

judgment.” The district court held that under Rule 60(b), a

motion for relief from judgment based upon fraud on the part of

an adverse party must be made within one year from the entry of

the judgment or order. Thus, the district court concluded that the

plaintiffs’ motion for relief from the prior judgment was

untimely and, further, determined that no reasonable person

could question the district judge’s impartiality.

On appeal, the Seventh Circuit Court of Appeals affirmed,

holding that plaintiffs’ Rule 60(b) motion was untimely since

Rule 60(b)(3) only allows the court to afford relief from a

judgment on the basis of fraud/misconduct of an adverse party if

the motion is made within one year of the judgment. Pantoja,

890 F.2d at 960. The Court also concluded that to the extent that

plaintiffs sought to introduce newly discovered evidence, the

motion was likewise untimely filed. Jd. at 960.

The Court of Appeals in Pantoja also held that Rule 60(b)(6)

did not afford the plaintiffs any basis for relief, noting that this

subsection is to be employed only in the most extraordinary

circumstances. Jd. at960. The Court of Appeals further held that

2. Inthe 1977 suit, the plaintiffs alleged that the defendants breached

the collective bargaining agreement. The plaintiffs also claimed that the union

breached its duty of fair representation. The district court granted the union's

motion for summary judgment since plaintiffs failed to exhaust their internal

union remedies. After a bench trial, the district court entered judgment in

January 1981 in favor of the defendant employers. The Seventh Circuit

affirmed in an unpublished opinion of September 1, 1982 and the United States

Supreme Court denied the plaintiffs’ petition for writ of certiorari. In

November or December 1979, while the case was still pending before the

district court, the plaintiffs were laid off from their jobs and eventually were

terminated pursuant to the collective bargaining agreement.

14

even if the plaintiffs’ allegations of fraud and misconduct on the

part of their attorney were true, Rule 60(b) could not be utilized

to address the plaintiffs’ situation. Finally, the Court held that

there was no basis for concluding that the district court judge in

the 1977 action improperly failed to recuse himself.

To the extent that Petitioner in the present case seeks relief

from the prior judgment in favor of Respondent based upon

newly discovered evidence under subsection 2 of Rule 60(b),

such motion is likewise untimely. Moreover, Petitioner has not

alleged any facts which would entitle him to relief under Rule

60(b)(2). A motion for relief under Rule 60(b)(2) based upon

newly discovered evidence requires the movant to show: (a) due

diligence in discovering the evidence; (b) the evidence is

material; (c) the evidence is not cumulative; (d) the evidence was

discovered after trial; and (e) the newly discovered evidence

would produce a different result. Bank v. Hartford Accident &

Indemnity Co., 737 F.2d 657, 662 (7th Cir. 1984). In the present

case, review of Petitioner's motions filed on June 9, 1994 makes

clear that Petitioner has not demonstrated entitlement to relief

under Rule 60(b)(2) as he had not made the requisite showing of

all of the elements set forth in Bank v. Hartford Indemnity, 737

F.2d at 662.

Additionally, Petitioner is not entitled to relief under

subsections 4 or 6 of Rule 60(b). Rule 60(b)(4) authorizes the

district court to grant relief from a judgment or order which is

void. A void judgment or order, for purposes of Rule 60(b)(4), is

a judgment or order entered by a court without jurisdiction or in

contravention of due process. Wesco Products Co. v. Alloy Auto

Company, 880 F.2d 981, 984 (7th Cir. 1989).

Unquestionably, Petitioner submitted himself to the

jurisdiction of the United States District Court in the present case

when he filed his complaint on March 12, 1992, alleging that

15

Respondent deprived him of the right to file a claim for the

alleged property damage and thereby violated his constitutional

rights of due process and equal protection. After Respondent

filed a motion to dismiss that complaint, as expressly allowed by

Rule 12(b) of the Federal Rules of Civil Procedure, the District

Court granted Respondent’s motion on June 25, 1992 and

dismissed Petitioner's complaint with prejudice. Petitioner then

submitted himself to the Court of Appeals’ jurisdiction by

appealing the decision of the District Court dismissing his

complaint. Under these circumstances, it cannot be said that the

judgment of the District Court of June 25, 1992 was entered

without jurisdiction or in contravention of due process.

Therefore, the judgment of June 25, 1992 was not void.

Finally, Petitioner's motions did not afford a basis for relief

under Rule 60(b)(6). As set forth above, Rule 60(b) is an

extraordinary remedy and is granted only in exceptional

circumstances. Dickerson v. Board of Education of Ford

Heights, Illinois, 32 F.3d 1114, 1116 (7th Cir. 1994); Central

States, Southeast & Southeast Areas Pension Fund v. Conaway,

1991 U.S.Dist. LEXIS 15495 (N.D. Ill. 1991). Furthermore,

Rule 60(b (6), in particular, requires a showing of extraordinary

circumstances that create a substantial danger that the

underlying judgment was unjust. Relief under Rule 60(b)(6) is

only available when the other subsections of Rule 60(b) are

inapplicable. Margoles v. Johns, 798 F.2d 1069, 1072 (7th Cir.

1986), cert. denied, 482 U.S. 905, 107 S. Ct. 2482 (1987).

In the present case, because Petitioner's motion alleged

fraud or misconduct on the part of Respondent, relief under Rule

60(b)(6) is not available as subsection (b)(3) would otherwise

apply. As noted above, motions under Rule 60(b)(3) are subject

to the one year filing limitation. Thus, Respondent asserts that

the District Court correctly concluded, and the Court of Appeals

properly affirmed, that Petitioner's motion was untimely filed

16

since the motion was based upon the alleged fraud of

Respondent. Therefore, Petitioner was correctly precluded by

the courts below from circumventing the one year filing

limitation of subsection (b)(3) in this matter and was not entitled

to relief under subsection (b)(6).

Furthermore, as correctly stated by the District Court, even

if Petitioner's motion was considered timely filed, his

allegations of fraud on the part of Respondent would not form the

basis of a due process or equal protection claim. As a general

rule, a plaintiff alleging a violation of civil rights must establish

that the defendant was acting under color of state law. Lawline

v. American Bar Association, 956 F.2d 1378 (7th Cir. 1992).

Although a conspiracy between private citizens and state

officials may be a basis for holding a private citizen liable for

violation of civil rights, bald allegations of conspiracy are

insufficient to state aclaim against a private citizen. Rather, the

and the private party reached an understanding to deny the

plaintiff of his constitutional rights. Westfield Partners, Lid. v.

Hogan, 740 F. Supp. 523 (N.D. Ill. 1990).

In the present case, neither Petitioner's original complaint

filed with the District Court on March 12, 1992 nor his motions

filed on June 9, 1994 contained allegations which, if proven,

would establish that Respondent was acting under color of state

law. Nor did Petitioner set forth specific facts which would

establish a conspiracy between state actors and the Respondent.

Finally, Petitioner's original complaint as well as his June 9,

1994 motions failed to set forth any facts, which if proven, would

establish that Respondent deprived him of a constitutionally

protected right. The dismissal of Petitioner's cause of action

against Respondent (based upon his failure to file suit within the

suit filing limitation of the insurance policy) did not violate

eae

17

Petitioner’s constitutional right to file aclaim. The “right” to file

aclaim pursuant to a policy of insurance is not a matter governed

by the due process clause of the United States Constitution.

Rather, any such “right” is contractual in nature and governed by

the terms and conditions of the policy of insurance. The Circuit

Court of Cook County, Illinois dismissed Petitioner's complaint

based upon his violation of the terms and conditions of the

policy. Petitioner was afforded due process; he sued, appealed,

and lost, but he had his day in court.

Respondent also notes that as part of his argument that he

was fraudulently deprived of his right to file aclaim, Petitioner

asserted that counsel for the Respondent “misrepresented this

case” and, as a result, Respondent terminated the services of

Attorney Frederick J. Sudekum, and the law firmof Querrey &

Harrow. Clearly, Petitioner's assertions on this point are

incorrect as Mr. Sudekum as well as the law firmof Querrey &

Harrow have continued to represent Respondent in this matter,

as evidenced by the various documents filed on behalf of

Respondent.

Based upon the foregoing reasons, Respondent asserts that

the Seventh Circuit Court of Appeals properly held that the

District Court did not abuse its discretion in determining that

Petitioner was not entitled to relief from the prio: judgment of

June 25, 1992 in favor of Respondent.’ Accordingly,

Respondent contends that the Court of Appeals’ decision of

September 13, 1995, affirming the District Cowt’s denial of

relief from the June 25, 1992 judgment, was proper in all

respects. Williams v. Hatcher, 840 F.2d 993 (7th Cir. 1989).

3. Respondent also contended that in June | 994. the Dstrict Court had

no jurisdiction to review the merits of the June 25. 1992 oder dismissing

Plaintiff's complaint since the order of June 25. | 992 was pre-iously affirmed

by the Coert of Appeals for the Seventh Circuit by order o September 30,

1992.

18

Il.

PETITIONER’S MOTION TO APPOINT COUNSEL

WAS PROPERLY DENIED.

In conjunction with his motions filed with the District Court

on June 9, 1994, Petitioner also sought the appointment of

counsel to represent him in this matter. Petitioner’s request for

the appointment of counsel was denied by the District Court on

July 6, 1994. Petitioner thereafter appealed to the Court of

Appeals for the Seventh Circuit, which held that the District

Court did not abuse its discretion in denying the request for

counsel. Respondent asserts that the motions for appointment of

counsel were properly denied by the Court of Appeals as well as

by the District Court.

A. Standard for Appointment of Counsel in Civil Actions

Initially, Respondent notes that there is no constitutional

right to court-appointed counsel in a civil action. Barkauskas v.

Lane, 946 F.2d 1292, 1294 (7th Cir. 1991); Lokmar Yazid Abdul-

Wadood v. Duckworth, 860 F.2d 280 (7th Cir. 1988), overruled

on other grounds, 940 F.2d 243 (7th Cir. 1991); Caruth v.

Pinkney, 683 F.2d 1044, 1048 (7th Cir. 1982), cert. denied, 459

U.S. 1214, 103 S. Ct. 1212 (1983). The District Court has

discretion to appoint counsel for a civil rights litigant and the

refusal to appoint counsel will only be overturned when it results

in fundamental unfairness impinging on the litigant’s due

process rights. Howland v. Kilquist, 833 F.2d 639 (7th Cir.

1987).

In determining whether counsel should be appointed, the

District Court may consider: (1) the petitioner's ability to

investigate the facts; (2) whether the only evidence consists of

conflicting testimony which would require effective cross-

19

examination; (3) the ability of the petitioner to present his case

without counsel; and (4) the complexity of the legal issues

involved. Howland v. Kilquist, 833 F.2d at 646.

The court must also consider the merits of the litigant’s

claim from a legal and factual standpoint; the court need not

appoint counsel when it considers the litigant’s chances of

success extremely slim. Caruth v. Pinkney, 683 F.2d 1044, 1048

(7th Cir. 1982), cert. denied, 459 U.S. 1214, 103 S. Ct. 1212

(1983). In Caruth, the plaintiff was an inmate who was removed

from his job as a law clerk at a prison law library for alleged

unauthorized use of the library photocopier machine. The

plaintiff then brought a civil rights action against certain prison

officials, alleging that he was improperly removed from his job.

The plaintiff in Caruth also requested that counsel be appointed

to represent him in his civil rights action. The district court

denied his motion and the Seventh Circuit Court of Appeals

affirmed, holding that the facts and issues alleged were not of

such complexity, controversy, or merit to entitle the plaintiff to

appointment of counsel. Caruth, 683 F.2d at 1050.

B. Petitioner’s Request for Counsel Was Properly Denied

In the present case, application of the above-cited factors to

the facts and posture of this case leads to the conclusion that

Petitioner's request for the appointment of counsel was properly

denied, both by the District Court as well as by the Seventh

Circuit Court of Appeals. First, examination of the facts and

legal issues presented by Petitioner's June 9, 1994 motions

revealed a slim chance of success on the merits, particularly in

light of the District Court and Seventh Circuit Court of Appeals’

previous rulings in this matter.

Moreover, Petitioner's complaint was dismissed by the

District Court pursuant to Respondent's Rule 12(b) motion.

Thus, this case did not involve conflicting evidence requiring

20

effective cross-examination. Additionally, Petitioner chose to

proceed pro se at the hearing of June 25, 1992 at which time the

District Court dismissed his complaint. Petitioner then waited

approximately two years to file his motions of June 9, 1994,

including his request for the appointment of counsel. Finally, the

legal issues raised by Petitioner’s complaint, as well as his

motions filed on June 9, 1994, are not of such complexity or

merit so as to require the appointment of counsel.

Moreover, the Seventh Circuit Court of Appeals, in its

opinion of September 13, 1995, noted that Petitioner

demonstrated that he was “quite capable of making arguments

and pursuing his suits in both State and Federal court.”

Accordingly, Respondent asserts that the District Court and

Seventh Circuit Court of Appeals did not abuse its discretion in

denying Petitioner’s request for appointment of counsel.

IV.

THE DISTRICT COURT PROPERLY DISMISSED

PETITIONER’S COMPLAINT BY ITS ORDER OF

JUNE 25, 1992.

As set forth above, Petitioner filed his complaint in the

District Court on or about March 12, 1992, alleging a violation

of his constitutional right to due process and equal protection

pursuant to the Fourteenth Amendment of the United States

Constitution. In its opinion and order of June 25, 1992

dismissing Petitioner's complaint, the District Court stated that

Petitioner alleged that he was denied due process and equal

protection because the Illinois Circuit Court barred him from

filing a claim. However, the District Court concluded that

Petitioner was not barred from filing aclaim by the Circuit Court,

but by the applicable insurance policy conditions. The District

Court also determined that Petitioner failed to set forth any valid

21

constitutional claim for the denial of due process or equal

protection, concluding that the state court proceedings afforded

Petitioner due process and equal protection. By order dated

September 30, 1992, the Seventh Circuit Court of Appeals

summarily affirmed the decision of the District Court dismissing

Petitioner’s complaint.

Because the Seventh Circuit Court of Appeals, by its order

of September 30, 1992, previously addressed and affirmed the

propriety of the District Court’s-order of June 25, 1992

dismissing Petitioner's complaint, Respondent contends that the

Seventh Circuit Court of Appeals, when it rendered its decision

of September 13, 1995, properly declined to re-examine the

underlying ruling.

Moreover, Respondent contends that this court need not and

should not examine the underlying decision of June 25, 1992

dismissing Petitioner’s complaint, particularly since Petitioner

did not appeal from the Seventh Circuit Court of Appeals’ order

of September 30, 1992. An appeal from the denial of a Rule

60(b) motion does not trigger appellate review of the merits of

the underlying judgment. Browder v. Director, Department of

Corrections of Illinois, 434 U.S. 257,263, 98 S. Ct. 556 (1978);

Harold Washington Party v. Cook County, 984 F.2d 875, 880 (7th

Cir. 1993), cert. denied, 126 L. Ed. 2d 54, 114S. Ct. 86 (1994).

However, even assuming that this Court chooses to re-

examine the District Court’s June 25, 1992 ruling, Respondent

maintains that the District Court properly dismissed Petitioner's

Complaint by its order of June 25, 1992.

A. Petitioner’s Complaint Did Not Set Forth a Valid

Constitutional Claim.

As set forth above, a plaintiff alleging a violation of civil

rights must establish that the defendant was acting under color of

22

state law. Lawline v. American Bar Association, 956 F.2d 1378

(7th Cir. 1992). Although aconspiracy between private citizens

and state officials may be a basis for holding a private citizen

liable for violation of civil rights, bald allegations of conspiracy

are insufficient to state aclaim against a private citizen. Rather,

the plaintiff must allege specific facts showing that the state

officials and the private party reached an understanding to deny

the plaintiff of his constitutional rights. Westfield Partners, Lid.

v. Hogan, 740 F. Supp. 523 (N.D. Ill. 1990).

In the present case, Petitioner’s complaint did not contain

allegations which, if proven, would establish that Respondent

was acting under color of state law. Nor did Petitioner set forth

specific facts which would establish aconspiracy between state

actors and the Respondent. Finally, Petitioner’s complaint failed

to set forth any facts, which if proven, would establish that

Respondent deprived him of a constitutionally protected right.

Moreover, Petitioner's original complaint as well as his

June 9, 1994 motions fail to set forth any facts, which if proven,

would establish that Respondent deprived him of a

constitutionally protected right. The dismissal of Petitioner's

cause of action against Respondent based upon his failure to file

suit within the suit filing limitation of the insurance policy did

not violate Petitioner's constitutional right to file a claim. The

“right” to file a claim pursuant to a policy of insurance is not a

matter governed by the due process clause of the United States

Constitution. Rather, any such “right” is contractual in nature

and governed by the terms and conditions of the policy of

insurance. The Circuit Court of Cook County dismissed

Petitioner's complaint based upon his violation of the terms and

conditions of the policy. Petitioner was afforded due process; he

sued, appealed, and lost, but, again, he had his day in court.

23

B. The District Court Properly Declined to Review the State

Court Rulings.

Moreover, the District Court properly declined toreview the

prior rulings made by the Illinois state courts in this matter. A

federal district court, except in limited circumstances, does not

have the authority to review state court determinations. Landers

Seed Company v. Champaign National Bank, 15 F.3d 729 (7th

Cir. 1994), cert. denied, 130L. Ed. 2d 20, 115S.Ct.62 (1994). In

Landers, the bank sued the defendant, Landers Seed, in state

court to collect on a promissory note. The defendant filed a

counterclaim for breach of contract. The jury made an award in

favor of each party, however, on appeal, the Illinois Appellate

Court reversed the judgment in favor of the defendant for

insufficiency of evidence. The defendant filed a petition for

rehearing which was denied by the Illinois Appellate Court and,

thereafter, filed a petition for leave to appeal which was denied

by the Illinois Supreme Court. The defendant's petition for writ

of certiorari was denied by the United States Supreme Court. All

of these petitions alleged that the Appellate Court’s reversal of

the judgment on the counterclaim violated the defendant's due

process rights. Landers Seed, 15 F.3d at 730.

The defendant in the state court actions then filed a motion

for relief from judgment with the state trial court, which was

denied; the denial of relief was then affirmed by the Illinois

Appellate Court. The Illinois Appellate Court also denied the

defendant’s request for rehearing and, finally, the Illinois

Supreme Court denied leave to appeal.

The defendant in Landers Seed then sued the bank in federal

district court under 42 U.S.C. § 1983. The District Court

dismissed the complaint for lack of subject matter jurisdiction.

On appeal, the Seventh Circuit Court of Appeals affirmed,

holding that the plaintiff (the defendant in the prior state court

proceedings) was essentially asking the District Court to

24

invalidate a state court judgment. The Seventh Circuit Court of

Appeals held that except in limited circumstances, a federal

district court does not have the authority to review state court

determinations. Landers Seed, 15 F.2d at 732.

The Seventh Circuit in Landers Seed held that a district

court may preside over challenges to state court rules if review

does not require review of a final state court judgment in a

particular cas¢. Landers Seed, 15 F.3d at 732. However, the

Seventh Circuit held that when constitutional claims presented

to the District Court are inextricably intertwined with a state

court’s denial in a judicial proceeding of a particular plaintiff's

claim, then the district court is, inessence, being called upon to

review the state court’s decision and this it may not do. Landers

Seed, 15 F.3d at 732. InLanders Seed, the Seventh Circuit Court

of Appeals concluded that the claims made and the relief sought

by the plaintiff in the federal district court were inextricably

intertwined with the earlier state court judgments and that the

federal district court therefore properly dismissed the complaint

for lack of subject matter jurisdiction. 15 F.3d at 733.

The state court procedural background in the present matter

is similar to that outlined above in Landers Seed. As set forth in

Respondent’s Statement of the Case, prior to bringing his federal

court action, Péetitioner filed an action arising out of the same loss

against Respondent in the Circuit Court of Cook County Illinois on

or about March 3, 1987, docketed to No. 87 CH 2006. Petitioner’s

state court action was dismissed with prejudice by the Circuit

Court of Cook County on the basis that Petitioner failed to file his

action within one year of the date of loss in compliance with the

provisions of the policy of insurance. Petitioner’s contention

that he was denied the right to file a claim is belied by the court's

ruling in the state action, as the court determined that Petitioner

did present aclaim to Respondent under his insurance policy and

the claim was properly denied by the Respondent. Thus, the

25

question of whether Petitioner made aclaim under the policy was

resolved long ago by the state court.

The dismissal of Petitioner’s complaint was subsequently

affirmed by the Appellate Court of Illinois for the First District

on May 23, 1990. The Illinois Supreme Court thereafter denied

Petitioner’s petition for leave to appeal by order dated

February 6, 1991. Finally, Petitioner’s petition for writ of

certiorari was denied by the United States Supreme Court on

October 7, 1991.

As in Landers Seed, those state court judgment were

“inextricably intertwined” with the claims made and the relief

later sought by the Petitioner in federal court. Based upon the

above holding in Landers Seed, Respondent asserts that the

United States District Court had no authority to review or

invalidate the prior judgments of the Illinois state courts in this

matter.

C. Petitioner’s Federal Claims Are Barred by Res Judicata

Finally, Petitioner’s federal action was barred by the

doctrine of res judicata. Under this doctrine, a final judgment on

the merits acts as a bar to further claims by the same parties based

upon the same cause of action. Beard v. O’Neal, 728 F.2d 894

(7th Cir. 1984), cert. denied, 469 U.S. 825, 105 S.Ct. 104 (1984).

The prior judgment bars relitigation not only as to those issues

that were raised and decided previously, but also as to issues that

could have been raised. Bunker Ramo Corp. v. United Business

Forms, Inc., 713 F.2d 1272, 1277 (7th Cir. 1983).

In the present case, the Circuit Court of Cook County,

Illinois as well as the Illinois Appellate Court, rendered a

decision on the merits of Petitioner's claims. Since Petitioner's

claims in the United States District Court, albeit couched in “due

26

process” and “equal protection” language, arethesameclaimsas —

those presented by him in the Illinois state courts, Petitioner’s

federal action was barred by res judicata.

CONCLUSION

Based upon the foregoing reasons, Re:nondent respectfully

requests that this Honorable Court deny the Petition for Writ of

Certiorari filed by Petitioner, Robert Wilson

Respectfully submitted,

FREDERICK J. SUDEKUM, III

Counsel Of Record

BARBARA DEL GRECO

SUDEKUM, ROSENBERG, &

CASSIDY, CHTD.

30 West Monroe Street

Suite 1450

Chicago, Illinois 60603

(312) 803-6250

MICHAEL RESIS

QUERREY & HARROW, LTD.

180 North Stetson Avenue

Suite 3500

Chicago, Illinois 60601

(312) 540-7000

Attorneys for Respondent