May 8, 2022

The United States Court of Appeals for the Seventh Circuit stated in its February 28, 2022 opinion in four MDL IVC filter ligation cases, “Lawyers make mistakes. Sometimes they are small and fixable. Other times the consequences are inescapable. Unfortunately for attorney Nicholas Farnolo’s clients, his mistakes fell in the latter category. Farnolo missed a filing deadline, which led to the dismissal of his clients’ cases. He then missed the one‐year window to seek reconsideration of that dismissal. We affirm.”

Underlying Facts

Between October 2017 and July 2018, Nicholas Farnolo helped his clients file short‐form complaints in the multidistrict litigation In re Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Product Liability Litigation. The MDL plaintiffs brought product liability claims alleging injuries caused by the defendants’ medical device—a filter designed to prevent pulmonary embolism, a form of blood clotting. The district court’s case management order instructed all plaintiffs to complete a profile form with general personal and medical background information and details about their device and alleged injuries. A plaintiff’s failure to file a profile form within the specified time frame allowed the defendants to move to dismiss that plaintiff’s claim.

In May 2019, the MDL defendants notified attorney Farnolo that they did not have forms from his clients—Laurie Sides, Lisa Ward, Lydia Terry, and Ralph Brandon. By late June 2019, the forms still had not been filed, and so the defendants moved to dismiss. Farnolo never responded to the motion, and the district court dismissed the cases on July 19, 2019.

Farnolo learned about the dismissal not by monitoring the MDL docket, but instead from one of his clients more than a year later. On August 18, 2020, he filed a motion for reconsideration and reinstatement of the cases. Farnolo told the district court that he did not receive an electronic docket notification of the defendants’ motion to dismiss and attributed his delay in asking for reconsideration to “new filtering rules to his email inbox” that sent the dismissal order to his junk folder. Farnolo made plain he was seeking relief under Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6).

Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6)

Under Rule 60(b) a court may “relieve a party or its legal representative from a final judgment, order, or proceeding” for various reasons, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). A catchall provision also authorizes courts to reconsider an earlier order if a party raises “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

A Rule 60(b) motion must be “made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). And where the stated ground for relief is “mistake, inadvertence, surprise, or excusable neglect,” Rule 60(c)(1) is clear that “a reasonable time” means “no more than a year after the entry of the judgment or order” at issue.

The Federal Appellate Court stated, “we conclude that Rule 60(c) embodies a mandatory claims‐processing rule, not one limiting a district court’s subject matter jurisdiction … the distinction between claims‐processing and jurisdictional rules makes no difference here, because “[m]andatory claim‐processing rules, if properly invoked, must be enforced.””

The Federal Appellate Court held: “Everyone agrees that the plaintiffs filed their motion for reconsideration roughly 13 months after the district court dismissed their cases. And the defendants, for their part, opposed the motion and raised the untimeliness of the plaintiffs’ motion under Rule 60(c). No matter the potential merits of the plaintiffs’ excusable neglect arguments, then, the district court’s denial of the motion for reconsideration reflected no abuse of discretion. Rule 60(b)(6)’s catch‐all provision cannot get the plaintiffs around the time bar in Rule 60(c)(1). The alternative grounds for reconsideration outlined in Rule 60(b)(1) and Rule 60(b)(6) are “mutually exclusive,” such that “a party who failed to take timely action due to ‘excusable neglect’ may not seek relief more than a year after the judgment by resorting to subsection (6).””

“If Farnolo had taken any of the steps outlined in the district court’s order—confirmed receipt of his clients’ profile forms, monitored the MDL docket more closely, or checked his clients’ individual docket sheets—he could have avoided dismissal in the first instance, and certainly could have complied with Rule 60(c)’s one‐year window for filing a motion for reconsideration.”


If you or a loved one were seriously injured (or worse) due to an IVC filter, you should promptly find a defective medical device claim lawyer who may investigate your IVC filter claim for you or your loved one and represent you or your loved one in a claim for compensation due to the harm suffered as a result of a defective IVC filter, if appropriate.

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