Sharpe, Denise R. v. Village of Fox Lake ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2006
Decided April 20, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2980
DENISE R. SHARPE, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 03 C 6817
VILLAGE OF FOX LAKE, Police
Department, Rebecca R. Pallmeyer,
Defendant-Appellee. Judge.
ORDER
Denise Sharpe sued her former employer, the Village of Fox Lake Police
Department (“Fox Lake”), alleging sexual harassment, sex discrimination, and
retaliation in violation of Title VII, 42 U.S.C. § 2000e, et seq. The district court
dismissed Sharpe’s complaint with prejudice under Federal Rule of Civil Procedure
37(b)(2)(C) because she failed to comply with discovery orders. The court also
denied her postjudgment motion to vacate the dismissal. We affirm.
Sharpe, through her retained attorney Mary McDonagh, filed a complaint in
September 2003 alleging sexual harassment, sexual discrimination, and retaliation
in violation of 43 U.S.C. § 1983. Judge Pallmeyer held an initial status hearing on
No. 05-2980 Page 2
November 26; Judge Pallmeyer granted Sharpe leave to amend her complaint by
January 23, 2004, and scheduled a Rule 16 conference for February 20. When
McDonagh failed to appear at the Rule 16 conference, Judge Pallmeyer rescheduled
another conference and warned that the “[f]ailure of Plaintiff’s counsel to appear at
that time may result in dismissal without prejudice.” Between March and June
2004, Judge Pallmeyer granted Sharpe leave to amend her complaint four more
times. Sharpe eventually recast all her claims under Title VII. In August
Judge Pallmeyer ordered that written discovery be completed by October 2004,
depositions completed by December 2004, and discovery closed by the end of
January 2005.
Sharpe’s (and her attorney’s) pattern of missed discovery deadlines and
appearances continued. On November 9, 2004, McDonagh failed to appear for a
status hearing; Judge Pallmeyer continued the hearing to November 17 and warned
that counsel “is expected to appear at the next status hearing, and to have complied
with outstanding discovery.” On November 17 McDonagh failed yet again to appear
and this time Judge Pallmeyer dismissed the case without prejudice, allowing
Sharpe twenty-one days to move to reinstate the case, but noting that any such
motion must be accompanied by full compliance with all outstanding discovery
requests.
On November 29 Sharpe apparently decided to take matters into her own
hands and filed a pro se motion to reinstate the case, asking the court to
“dismiss/fire” her attorney “for having failed to do her job” and to give her time to
retain alternative counsel or to appoint counsel for her. In a minute order of
December 1, Judge Pallmeyer denied Sharpe’s motion for appointment of counsel
without prejudice. Sharpe subsequently informed Judge Pallmeyer that she had
contacted twenty lawyers about taking her case but had no success. Her efforts
seemed to satisfy Judge Pallmeyer, who reinstated Sharpe’s case on January 14,
2005, and directed Sharpe to promptly comply with outstanding discovery. The
judge also set a status conference for January 28 at which time Sharpe could
“report on her determination with respect to representation by Attorney
McDonagh.” On that day, a status hearing was held at which Judge Pallmeyer
dismissed the case without prejudice; according to the docket entry, any subsequent
motion for reinstatement would have to be accompanied by an agreement to pay
fees for the appearance of Fox Lake’s lawyer.
About three months later Sharpe—once again through McDonagh—moved to
reinstate the case, assuring the court that “[d]iscovery is complete and ready to be
delivered to Defendants.” On May 5 Judge Pallmeyer granted the motion to
reinstate; the judge also told Sharpe to serve discovery responses and requests on
Fox Lake by the next day and set a status hearing for June 9. Sharpe took no
No. 05-2980 Page 3
further action, however, and at the June 9 status hearing, Judge Pallmeyer
dismissed Sharpe’s case with prejudice:
Plaintiff and her attorney have twice prevailed upon the court to
reinstate this case, each time promising prompt compliance with
outstanding discovery requests. More recently, on May 5, 2005, Plaintiff’s
counsel assured the court that the discovery responses had been prepared
and would be furnished that very day. To date, Defendant reports
Plaintiff has not furnished discovery responses, has not served requests
of her own, and has not responded to his telephone call. This case [sic] is
puzzled by Plaintiff’s conduct but concludes that dismissal with prejudice
is the just result. This case is dismissed with prejudice pursuant to Rule
37(b)(2)(C).
On June 27 Sharpe moved pro se to vacate the dismissal, to appoint counsel,
and to proceed in forma pauperis. In a minute order dated July 7, Judge Pallmeyer
summarily denied all three motions.
Sharpe, through newly retained counsel, appeals the district court’s dismissal
of her case under Rule 37(b)(2)(C) and the denial of her postjudgment motion, which
we construe under Federal Rule of Civil Procedure 59(e) because it was filed within
ten days of the final judgment. Her brief is rather vague and does not specifically
take aim at the basis of the Rule 37(b)(2)(C) dismissal but seems to argue—with
minimal elaboration or citation to legal authority—that the district court abused its
discretion by dismissing her case “without allowing her time to get a new attorney
or appointing an attorney for her,” and by blaming her for the “gross negligence of
her attorney.”
Rule 37 allows for dismissal of a case when a party commits discovery
violations such as failing to make mandatory disclosures. See FED. R. CIV. P.
37(b)(2)(C); Greviskes v. Univs. Research Ass’n, Inc., 417 F.3d 752, 758-59 (7th Cir.
2005). While the district court need not identify a pattern of discovery abuses, the
court must at least make a finding of “willfulness, bad faith or fault” to justify a
Rule 37 dismissal. Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003); Aura
Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 909 (7th Cir. 2003). A
district court need not make an explicit finding of willfulness; rather, such a finding
may be inferred from the sanction order itself. See Aura Lamp, 325 F.3d at 909;
In re Golant, 239 F.3d 931, 936 (7th Cir. 2001). We review dismissals under
Rule 37 for abuse of discretion. See Aura Lamp, 325 F.3d at 907.
Sharpe has not shown that Judge Pallmeyer abused her discretion by
dismissing her case under Rule 37. Judge Pallmeyer’s explanation for the dismissal
suggests an implicit finding that Sharpe’s conduct was willful—the judge stated
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that Sharpe twice asked to reinstate the case while “each time promising prompt
compliance with outstanding discovery requests,” that Sharpe failed to comply with
discovery even though she assured the court that “discovery responses had been
prepared,” and that Sharpe even failed to return defendant’s counsel’s telephone
call.
Nor has Sharpe shown that Judge Pallmeyer erred by failing to appoint
counsel. Civil litigants have no constitutional or statutory right to counsel; whether
a civil litigant may have counsel appointed is a matter left solely to the district
court’s discretion. See Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006);
28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person
unable to afford counsel.”). And a district court judge does not abuse her discretion
in denying appointment of counsel unless a civil litigant’s case is so complex that it
would be “impossible for [the plaintiff] to obtain any sort of justice” without a
lawyer. Johnson, 433 F.3d at 1007 (emphasis in original) (internal quotation
omitted); see Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). At no point in
these proceedings has Sharpe explained why her case was so complex that it
required appointment of counsel.
Nor can Sharpe seriously argue that Judge Pallmeyer abused her discretion
by not giving her more time to secure alternative counsel. Sharpe first informed the
court that she was dissatisfied with McDonagh in November 2004 when she moved
for appointment of counsel. But Judge Pallmeyer did not dismiss the case until
June 2005; this gave Sharpe seven months within which to try to retain another
lawyer. In any event, Sharpe was represented by Attorney McDonagh throughout
the duration of the proceedings, and there is no right to effective assistance of
counsel in a civil case. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001).
To the extent Sharpe argues that she should not be accountable for the discovery
violations attributable to her counsel, this argument also fails because Sharpe, like
any civil litigant, is accountable for the actions (or inactions) of her attorney. See
Magala v. Gonzales, 434 F.3d 523, 525-26 (7th Cir. 2005); United States v. 7108 W.
Grand Ave., Chi., 15 F.3d 632, 634-35 (7th Cir. 1994).
Finally, the district court did not abuse its discretion when it denied Sharpe’s
postjudgment motion because Sharpe did not “bring the court’s attention to newly
discovered evidence or to a manifest error of law or fact.” See Neal v. Newspaper
Holdings, Inc., 349 F.3d 363, 368 (7th Cir. 2003).
For the foregoing reasons, we AFFIRM the decision of the district court.