Clarence Gross v. Town of Cicero ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4042
CLARENCE GROSS,
Plaintiff-Appellant,
v.
TOWN OF CICERO, ILLINOIS, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 9465—John W. Darrah, Judge.
____________
DECIDED JUNE 6, 2008
____________
Before EASTERBROOK, Chief Judge, and CUDAHY and
MANION, Circuit Judges.
EASTERBROOK, Chief Judge. This appeal was closed
administratively on May 9 for failure to prosecute. Appel-
lant has asked for reconsideration. That motion has
been referred to the motions panel for the week in which
the appeal was dismissed, given the rule that a single
judge cannot “dismiss or otherwise determine an appeal”.
Fed. R. App. P. 27(c).
Clarence Gross was Chairman of Cicero’s Board of
Police and Fire Commissioners until January 2002. He
2 No. 06-4042
contends in this action under 42 U.S.C. §1983 that his
removal violated the first amendment and the equal
protection clause of the fourteenth. Some issues were
resolved by summary judgment. After a bench trial on the
remaining issues, the judge found in defendants’ fa-
vor—not only on Gross’s claim but also on Cicero’s coun-
terclaim for restitution. Gross filed a notice of appeal on
November 15, 2006. The record reached this court on
December 12. That started the 40 days for appellant to
file his brief. Fed. R. App. P. 31(a)(1).
Although the brief thus was due in January 2007, the
court granted motions for extra time. After the delay
had lasted beyond a year, appellees opposed a motion
seeking yet more time. The court on March 6, 2008, allowed
appellant all of the time he requested in his latest mo-
tion—until April 21, 2008—but added: “No further ex-
tensions of time will be granted, and failure to file the
appellant’s brief by the due date as extended will result
in the dismissal of the appeal for failure to prosecute.”
When the brief did not appear until April 25, this promise
was kept and the appeal was dismissed. This is the
order that appellant wants us to rescind.
Appellant gives two reasons for the belated filing. First,
he maintains, the delay from January 16, 2007, the orig-
inal due date, to April 21, 2008, was not so long that the
court should have forbidden further extensions. The parties
were engaged in negotiations, counsel says, and it made
sense to explore settlement before investing the efforts
needed to write a brief. There are several problems with
this line of argument, not least that if Gross’s counsel
deemed the order of March 6 improvident, she should
have asked us to reconsider that order, rather than filing
four days late. Courts cannot operate without setting
No. 06-4042 3
and enforcing deadlines. More than 17 months passed
between the notice of appeal and the final due date for
the opening brief; that is ample. What’s more, counsel
for the appellees informed appellant’s lawyer on March 3
that he would not agree to further delay, and appellant’s
lawyer does not say that any additional negotiations
occurred. Plenty of time remained to meet the April 21
deadline for the opening brief.
Second, appellant’s lawyer relies on Fed. R. App. P.
25(a)(2)(B), which reads:
A brief or appendix is timely filed . . . if on or
before the last day for filing, it is:
(i) mailed to the clerk by First-Class Mail, or
other class of mail that is at least as expedi-
tious, postage prepaid; or
(ii) dispatched to a third-party commercial
carrier for delivery to the clerk within 3 calen-
dar days.
The “Proof of Service” included with appellant’s brief
reads: “The undersigned states that the [brief] was
served . . . by placing the document in envelopes,
postage prepaid, and delivering it to the United States
Postal Service on April 21, 2008”. Counsel further repre-
sented that “one original and fourteen paper copies of
the Appellant’s brief were sent this 21st day of April,
2008 via commercial carrier to” the court. If these state-
ments had been true, then the brief would have been
accepted. But they are not true, as appellant’s counsel
now admits. The brief arrived in the clerk’s office on April
25 by courier, and accompanying documents show that it
was placed in the courier’s hands on April 25, not April 21.
4 No. 06-4042
The motion to reconsider represents that counsel planned
to ship the brief by FedEx on April 21 and left the task to a
paralegal, who delegated it to an assistant, who did not
do it. Not until April 25 did the paralegal discover that
the brief had not been dispatched. The paralegal then
arranged for a courier to deliver the brief to the clerk’s
office. Counsel adds in a footnote: “Unfortunately, this
has not been the first time [that counsel] has had issues
with that particular employee, who has since been disci-
plined.”
Although the motion to reconsider tells us that the
paralegal was out of the office from April 22 through
April 24, it does not reveal why counsel herself did not
ensure that an employee, known to be unreliable, had
dispatched the brief (or for that matter why the para-
legal lacked a system for checking up). The law is full of
deadlines, and delay can lead to forfeiture. See Schiavone
v. Fortune, 477 U.S. 21 (1986); United States v. Locke, 471
U.S. 84 (1985). Complaints must be filed by the last day
of the period of limitations. So must collateral attacks,
and a single day’s delay can foreclose review even in a
capital case. See Johnson v. McBride, 381 F.3d 587 (7th Cir.
2004). The time for filing a notice of appeal is even more
strict; it is a jurisdictional limit. See Bowles v. Russell,
127 S. Ct. 2360 (2007).
Time limits set by judges, unlike those in statutes, often
can be extended, and the time for filing a brief is one
of those flexible periods. See Fed. R. App. P. 26(b). When
judges can decide whether to be strict or lenient, it is
important to match the sanction to the offense. See
Mommaerts v. Hartford Life & Accident Insurance Co., 472
F.3d 967 (7th Cir. 2007); Bleitner v. Welborn, 15 F.3d 652(7th Cir. 1994). Small shortcomings should not be treated
No. 06-4042 5
the same as serious ones; otherwise people will take
excessive care to avoid small injuries, while there will be
no marginal deterrence of more serious problems. At the
same time, the right response to carelessness of the sort
exhibited here is not to say “never mind” and proceed as
if everything had been done properly. Then deadlines
would be toothless. Both the court and the appellees
have been inconvenienced by the false certificate and
the delay. The court and its staff have had to handle sev-
eral rounds of unnecessary submissions; appellees de-
voted legal time to filing motions to strike the untimely
brief, and responding to the motion to reconsider.
Financial sanctions can fill the gap between winking
at the delict (Gross’s preferred outcome) and dismissal
with prejudice (appellees’ preference). The injury here is
financial (legal time, and even inconvenience, have mone-
tary equivalents), so a financial penalty is appropriate.
We will reinstate the appeal if, within ten days, appel-
lant’s counsel pays a sanction of $5,000, half to appellees
and half to the clerk of court. Otherwise the motion to
reconsider will be denied. We do not pretend that $5,000
is a figure reached by exact calculation, but it is enough
to lead to more care in the future, without being too
large in relation to the normal legal costs of handling
an appeal.
USCA-02-C-0072—6-6-08