Kelly Fuery v. City of Chicago ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3786
KELLY FUERY, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:07-cv-05428 — Sara L. Ellis, Judge.
____________________
ARGUED JANUARY 16, 2018 — DECIDED AUGUST 14, 2018
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
ROVNER, Circuit Judge. After a contentious trial, the district
court, after assessing the plaintiffs’ contumacious conduct, as-
serted its inherent authority to set aside a jury verdict in favor
of one plaintiff and entered judgment for the defendants on
all claims. The plaintiffs challenge the limits of the judge’s in-
herent authority to set aside a verdict. We affirm.
2 No. 16-3786
I.
Appellate courts are the proverbial Monday-morning
quarterbacks. We are able to evaluate everything in slow mo-
tion, focusing a lens on what might be imperceptible in real
time. But we cannot hear the grunts of the players when they
are hit, smell the grass as a player slides across it, see the al-
most imperceptible elbow to the face, or the word mouthed
by a coach to a player that is not picked up on the audio equip-
ment. For this reason, we leave much of the trial refereeing to
those on the field—the district courts. District courts “possess
certain inherent powers, not conferred by rule or statute, to
manage their own affairs so as to achieve the orderly and ex-
peditious disposition of cases. That authority includes the
ability to fashion an appropriate sanction for conduct which
abuses the judicial process.” Goodyear Tire & Rubber Co. v. Hae-
ger, 137 S. Ct. 1178, 1186 (2017) (internal citations omitted). We
review such a use of inherent authority for an abuse of discre-
tion. Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991); Salmeron
v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009).
Because the relevant question in this case involves only the
limits of a judge’s inherent authority in the face of bad faith
conduct from the parties, the highly contested facts that led
plaintiffs Kelly Fuery, Debra Sciortino, and Nicole To-
maskovic to file this lawsuit in the first place are largely irrel-
evant. It will suffice for our purposes to report that Fuery and
Chicago police officer William Szura were both driving on In-
terstate 55 in Chicago on a June evening in 2007 when one
party did something to anger the other. Sciortino was a pas-
senger in Fuery’s car and Tomaskovic, their friend, was driv-
ing a separate car and eventually stopped on the side of the
road and joined what came to be a melee. The parties disagree
No. 16-3786 3
as to who initiated the confrontation between the parties, and
how that confrontation progressed, but all parties agree that
it ended on the side of the road with yelling, a physical alter-
cation, and claims of injury all around. The three women were
each arrested for battery of a police officer, and each was ulti-
mately acquitted following a criminal bench trial. Subse-
quently, the three women filed a lawsuit against the City of
Chicago, Officer Szura, and several Illinois State Police em-
ployees for claims arising under 42 U.S.C. § 1983 and § 1985
(and state law claims pursuant to 28 U.S.C. § 1367), and the
case eventually landed before the district court below ready
for trial.1
In preparation for trial, the district court held proceedings
on the parties’ various motions in limine, in which the parties
asked the court to protect certain allegedly inadmissible evi-
dence from disclosure before the jury. Throughout the course
of the trial, the defendants objected to various testimony as
being violative of the court’s rulings on those motions in
limine and moved for a mistrial on December 9 and 13, 2015.
In its December 13 motion, the City also asked the court to use
its inherent authority to dismiss all claims with prejudice and
award attorneys’ fees to the defendants as a sanction for the
conduct of the plaintiffs and their attorney. R. 405 at 1. The
Illinois State Police defendants joined the motion and also
asked for a mistrial. R. 408 at 1.
The district court initially denied the December 13 motion
to dismiss noting that “dismissal is a very severe sanction and
1All defendants other than the City of Chicago and William Szura were
eventually dismissed from the case in various manners. R. 77, 277, 420,
490.
4 No. 16-3786
it punishes the plaintiffs for the conduct of their attorney,
which I don’t think is appropriate even in light of what’s hap-
pened.” R. 508 at 957. But, the judge noted, “[t]here are plenty
of options once the trial is concluded to deal with the miscon-
duct that’s happened, and we will deal with that at the end of
trial. So I am not letting it go.” Id.The jury eventually returned a verdict in favor of one
plaintiff, Tomaskovic, and against Szura, on her excessive
force claim, granting Tomaskovic $260,000 in damages, and
finding that Szura was acting within the scope of his employ-
ment at the time of the incident. R. 420. The jury found in fa-
vor of the defendants on all other claims, and the court en-
tered judgment accordingly on January 6, 2016.
On February 3, 2016, the City filed a Rule 50(b) motion for
judgment notwithstanding the verdict, or, alternatively, un-
der Rule 60(b)(3) for relief from judgment on Tomaskovic’s
excessive force claim. The motion again asked the court to en-
ter judgment against Tomaskovic as a sanction for her law-
yer’s pervasive misconduct at trial. R. 431 at 1, 9. At a status
hearing on February 16, 2016, the court reminded plaintiff’s
attorney, Dana Kurtz, that the issue of sanctions was still
pending and stated that it was seriously considering striking
the judgment and finding for the defendants on all claims.
Fuery v. City of Chicago, No. 07 C 5428, 2016 WL 5719442, at *13
(N.D. Ill. Sept. 29, 2016). On April 8, 2016, the City renewed
its motion for sanctions under Rule 37, 28 U.S.C. § 1927, and
inherent authority.
On September 29, 2016, the district court exercised its in-
herent authority and entered judgment in favor of the City
and Szura on all claims, in effect undoing the jury’s verdict in
favor of Tomaskovic. But the court denied the defendants’
No. 16-3786 5
claims for attorneys’ fees. In a thorough opinion, the district
court walked through the various misconduct by the plain-
tiffs and their attorney, Dana Kurtz, finding that “Kurtz acted
in bad faith in trying this case,” and that “plaintiffs actively
participated in the misconduct.” Fuery, 2016 WL 5719442, at
*10, *11.
The plaintiffs, now represented by new counsel on appeal,
re-analyze each of these instances of alleged misconduct, de-
constructing what happened and offering either innocence or
excusable neglect, or both, as an explanation for each. Plain-
tiffs’ counsel has done an admirable job on appeal. The argu-
ments for each alleged violation of a ruling in limine can be
somewhat convincing when viewed individually and from
the sterile view of our Monday morning recliner.
As is often the case in life, however, the whole of abusive
action is greater than the sum of the parts of which it is made.
Were we to view judicial abuses piecemeal, each one might
not be worthy of sanctions, or even comment. But these incre-
mental abuses chip away at the fair administration of justice
and frustrate a trial judge’s faith that she can rely upon the
lawyers before her—officers of the court—to set forth a fair
and accurate presentation of the facts and law. And for this
reason we leave the evaluation of such abuse to the discretion
of district courts which must “manage their own affairs so as
to achieve the orderly and expeditious disposition of cases.”
Chambers v. NASCO, Inc., 501 U.S. 32, 35, 43 (1991); see also
Tucker v. Williams, 682 F.3d 654, 661 (7th Cir. 2012).
In this case we can see, even from the two-dimensional
record, the judge’s patience being tried. After one violation of
the ruling in limine, the court warned Kurtz, “The last thing I
will say is I don’t want anymore dancing around or near or
6 No. 16-3786
by the rulings on the motions in limine. And if I have to deal
with it again, I will say something in front of the jury, and you
won’t appreciate what I say in front of the jury.” R. 504 at 207–
08. And then a bit later, “And if you walk into rulings on mo-
tions in limine like you did today, where you asked specific
questions calling—that include inadmissible hearsay in those
questions, I will speak to you in front of the jury, and I will
sanction you.” Id. at 279–80. A few days later she admonished
counsel that a violation of a motion in limine, was “plainly a
move for sympathy… [a]nd that is inappropriate and unethi-
cal.” R. 507 at 942. And a few days following that, the district
court warned, “My point is that this is a continuing pattern,
right, where I make rulings on motions and then you violate
the rulings? … It’s over and over and over and over again,
and it’s getting to the point where I’m at a loss. … Enough is
enough. There’s no reason.” R. 508 at 1129–30. Finally, on the
last day of trial, the judge seemed to have reached her limit,
“I mean, my frustration level is through the ceiling with plain-
tiffs’ counsel at this point. It’s through the ceiling— for how
this case has been litigated since this trial has started and what
has and hasn’t been done. … He clearly has not been in-
structed as to what he can say and what he can’t say with re-
gard to the motions in limine, obviously.” R. 510 at 1522–23.
These abuses chipped away at the integrity of the trial and led
to the court’s decision to enter judgment for the defendants
on all counts.
II.
The district court recognized the severity of its sanction—
overturning a jury verdict and entering judgment in favor of
the non-prevailing party, but yet, after carefully examining
No. 16-3786 7
each of the facts, the court found that, “The continuous, con-
tumacious course of conduct pursued by Kurtz, and on sev-
eral occasions aided by each of her clients and her co-counsel,
rises to the level of severity where a sanction of judgment for
the City and Szura is appropriate.” Fuery, 2016 WL 5719442,
at *10. The district court’s detailed analysis of each instance of
conduct demonstrates its dedication to ensuring that the sanc-
tion had “not been imposed lightly” but only after fair con-
sideration and weighing of the harm to the defendants. Id. It
is true that another district court judge may have addressed
the problem with a different set of sanctions or solutions, but
we can reverse only where no reasonable judge would have
done the same. See Maynard v. Nygren, 372 F.3d 890, 893 (7th
Cir. 2004). This is certainly not the case here.
The district court carefully reviewed the alleged bad faith
conduct, looking at several categories—improper questions
and attempts to elicit testimony barred by the court; failure to
properly prepare witnesses or misconduct by witnesses; lack
of candor regarding communications with the media; de-
struction of relevant notes; and other miscellaneous viola-
tions.
A. Improper questions and attempts to elicit testimony
barred by the court
The district court first focused on the plaintiffs’ counsel’s
questions that the court concluded were intended to elicit tes-
timony that violated its rulings on the motions in limine.
These included four categories of offenses: references to inter-
nal police investigations of Szura, references to the criminal
case and its credibility rulings, 911 calls, financial questions
and miscellaneous hearsay.
8 No. 16-3786
1. References to any internal police investigation of Szura
Despite barring any evidence of the internal police inves-
tigation into Szura’s conduct, including mention of certain
forms involved in those investigations, Kurtz continued to
ask general questions about forms and documents that law
enforcement may have completed. For example, she asked a
police sergeant, “if you’re responding to a call and you’re ad-
vised that an officer pulled out his firearm, you’re required to
document that, correct?” R. 503 at 71–72. She also asked,
“Doesn't the Chicago Police Department have a rule or a re-
quirement that Chicago Police Department supervisors, even
in conjunction with the Illinois State Police, are required to
investigate in certain situations?” R. 504 at 136. Despite being
warned away from such questioning, just a short while later
she asked the same questions of a different defendant, “You
are aware as a supervisor that there are certain forms either
you have to complete or you have to have the officer complete
when there is—in certain situations, correct?” Id. at 144. And
even after the defendants’ objection to this question was sus-
tained, she tried yet again with Szura: “What other forms did
you fill out once you went back to the first district?” R. 504 at
201. Following this last instance, the court sternly warned
Kurtz during a sidebar to stop “dancing around or near or by
the rulings on the motions in limine.” Id. at 207–08. But the
warning fell on deaf ears. A few days later Kurtz displayed a
document labeled “IPRA 0007,” which the court assumed
would cue jurors about an investigation by the Independent
Police Review Authority (IPRA)—a body that the district
court judge thought would be well known to Chicago jurors,
given recent extensive news coverage of its actions. The rul-
ings in limine prohibited references to IPRA investigations.
The district court rejected Kurtz’s claims of inadvertence and
No. 16-3786 9
instead concluded that the “improper question was not inad-
vertent but the result of her continued, deliberate efforts to
obtain an advantage with the jury by playing fast and loose
with procedure and the Court’s orders.” Fuery, 2016 WL
5719442, at *4. But even that warning was not enough. Later
Kurtz asked another Trooper about internal investigations:
“And would you agree that Officer Szura as an involved party
should have been subject to the same type of examination as
the girls?” R. 508 at 1196.
Relatedly, the district court also counted against the plain-
tiffs Kurtz’s clear violation of the ruling in limine barring any
evidence about law enforcement’s failure to perform a field
sobriety test or breathalyzer on Officer Szura. Rather than
asking the plaintiffs if anyone had performed breathalyzer
tests on them, after Fuery testified that she thought Szura had
been drinking, Kurtz asked, “Was anyone given a field sobri-
ety or breathalyzer on the scene that you saw?” R. 506 at 499.
The district court correctly concluded that this question was
intended to touch upon law enforcement’s failure to perform
a field sobriety test on Szura, in direct contradiction of the rul-
ing in limine.
2. References to the criminal case and the credibility rulings
Although the plaintiffs were permitted to discuss their ac-
quittal in the criminal case, they were not permitted to elicit
testimony regarding the criminal court’s assessment of
Szura’s credibility or that of the other police officers. The dis-
trict court found that Kurtz violated this ruling in limine by
asking one of the police sergeants if she was upset about the
decision in the criminal case. The district court concluded that
Kurtz was referring back to, and hoping to invoke prior dep-
osition testimony in which the sergeant had testified that she
10 No. 16-3786
was upset by the criminal court’s ruling because the criminal
court judge had accused the police of misconduct. The district
court concluded that this was Kurtz’s improper backdoor ap-
proach to letting the jury hear that the criminal court had
found misconduct by the police.
3. 911 calls
Just prior to Szura’s testimony, the attorneys discussed ad-
missibility of the various calls that came into the 911 call cen-
ter at the time of the underlying events. The court announced
that it would not rule on the admissibility of the 911 calls until
Kurtz provided the transcript copies which she promised to
send by email. Despite this discussion just prior to the start of
Szura’s testimony, during cross examination, Kurtz repeat-
edly asked Szura about the content of various 911 calls. The
district court found not credible Kurtz’s claim that she had
forgotten the discussion from earlier that morning regarding
admitting those calls.
4. Financial questions
The district court also found that Kurtz engaged in im-
proper lines of questioning intending to garner sympathy
from the jury based on the plaintiffs’ financial situations.
Kurtz asked Fuery why she was not able to pay off her entire
legal bill for her criminal case to which Fuery responded, “I
couldn’t come up with the whole amount.” R. 506 at 515. She
then asked Tomaskovic, “In June of 2007 did you have insur-
ance?” R. 507 at 935. The district court concluded that both of
these questions were improper and irrelevant: “You wanted
those jurors to know that she was self-employed and that she
had no money and had no insurance and had all these bills
No. 16-3786 11
that are outstanding that she has not paid. And that is inap-
propriate and unethical.” R. 507 at 942.
5. Hearsay
The district court also determined that Kurtz asked several
questions that included impermissible hearsay in the question
itself or were designed to elicit impermissible hearsay re-
sponses. Of course, even seasoned lawyers make hearsay mis-
takes, but it appears that the district court thought these were
not made in good faith and added to the straw pile atop the
camel’s back.
B. Failure to properly prepare witnesses or misconduct by
witnesses
Violations of rulings in limine stem from a few main
sources: lawyers who ask questions designed to elicit answers
in direct violation of the rulings, lawyers who fail to properly
prepare their witnesses to prevent them from stepping into
forbidden territory, witnesses who intentionally testify about
forbidden matters despite being prepared by lawyers, and in-
advertence. After assessing the pattern in the trial and the de-
meanor and candor of the witnesses and counsel, the district
court was not prepared to accept inadvertence as an excuse
for many of the violations. In section A above, we addressed
the first of these sources—improper questions by counsel. In
this section we look at the remaining sources of violations—
failure to prepare witnesses or intentional violations by the
witnesses. In these instances, witnesses stepped into forbid-
den territory without the lawyer leading the way through
questioning.
Ordinarily, a lawyer must prepare a client for trial by mak-
ing certain that the client understands all of the preliminary
12 No. 16-3786
rulings and what subjects the court has forbidden. After sev-
eral missteps, the district court concluded that plaintiffs’
counsel “placed very little importance on ensuring their wit-
nesses actually complied” with the rulings on the motions in
limine. Fuery, 2016 WL 5719442, at *6. The district court sur-
mised that this was a strategy on the part of the plaintiffs’ at-
torney who likely believed, the court thought, that “any vio-
lations would at worst be stricken, but that the jury would
have already heard the offending comment and the bell can-
not be unrung.” Id. at *6. The court’s ultimate conclusion was
that “[t]his tactic is extremely prejudicial to Defendants, un-
ethical, and in this Court’s opinion, it is exactly what hap-
pened in this case.” Id. The district court judge, who wit-
nessed the ongoing behavior and the demeanor of the attor-
ney and the parties was in the best position to evaluate mo-
tives and veracity. After reviewing the trial transcript, we can-
not say that the court abused its discretion in so concluding,
particularly after looking at the conflicting and ever-morph-
ing testimony of Kurtz and her client about trial preparation.
Sciortino was the first to step into a forbidden subject mat-
ter when she testified that she had never been arrested or con-
victed before. She volunteered this information as she was de-
scribing why she thought she would be released quickly from
jail and therefore did not seek medical attention while incar-
cerated. R. 507 at 759–60. The district court found that alt-
hough Kurtz did not directly solicit this testimony, it was in-
dicative of her failure to properly prepare her clients.
It seems likely that this episode standing alone would
have passed relatively unnoticed but for the district court’s
greater concerns about Tomaskovic’s violations of the rulings
No. 16-3786 13
in limine. First Tomaskovic testified regarding a medical di-
agnosis rather than merely describing what ailed her as re-
quired by the motion in limine. R. 507 at 932. The district court
did not make much of this, merely mentioning it in passing.
Fuery, 2016 WL 5719442, at *5. But the district court’s frustra-
tion began in earnest when Tomaskovic offered testimony in
violation of a ruling prohibiting discussion of the plaintiffs’
pressing criminal charges against Szura. R. 507 at 918. The dis-
trict court called for a side bar conference and said to Kurtz,
I don’t understand what part of my rulings on
the motions in limine you don’t get. … You need
to work with your clients and prep your clients
and be very direct in talking to your clients and
explain to them what they can say and what
they can’t. … It is ‘the judge has said you are not
allowed to ever mention the words “pressing
charges” to come out of your mouth, period.’
Id. at 919–20 (internal quotation marks added). In response,
Kurtz assured the judge that she had indeed done just that
and that she had been very clear with her client. The district
court judge responded that given Kurtz’s earlier misconduct
(which we describe in later sections), she had a “hard time be-
lieving that [she was] not playing fast and loose and playing
to win here and being unethical.” Id. at 923. The court warned:
I am going to spend the weekend thinking
about how this trial has been going and what’s
been happening so far and whether there
should be any sanctions, up to and including a
mistrial, because I’ve had enough. This has
pushed me over the line. I have a lot of patience
14 No. 16-3786
and a lot of tolerance, and I’m done. I’m done
with the funny business.
Id. at 924–25.
The court dismissed the jury for the day and questioned
Tomaskovic directly about whether she had been properly
prepared for trial and whether her lawyer had told her about
the things she could not say during trial. Tomaskovic denied
that she had been so instructed. The court asked, “Were you
ever instructed by your lawyer that you weren’t allowed to
say [that you wanted to press charges]?” Id. at 939. To-
maskovic answered, “No.” Id. Based on this statement, the de-
fendants’ respective counsels informed the court that it would
likely move for a mistrial. Kurtz continued to insist that she
had properly prepared her clients and that Tomaskovic was
simply confused. The judge, however, who had heard her tes-
timony, witnessed her demeanor, and watched the overall
processes at trial was not convinced. In fact, she was quite
frustrated:
I asked her specifically whether she had been in-
structed that she was not allowed to say that she
wanted to press charges. Specifically. And she
said no. That’s not a hard question. You don’t
have to do any kind of interpretation to under-
stand what I am asking when I ask that ques-
tion. And she said no. She doesn't seem to me,
even though she was emotional, she doesn’t
seem stupid. She understood what I was asking
her. And she answered me.
Id. at 941–42.
No. 16-3786 15
Following this discussion of mistrials and ethical viola-
tions, the plaintiffs’ case was, no doubt, on thin ice. A few
minutes after Kurtz left the courtroom, Tomaskovic re-en-
tered and asked to address the court. She stated, on the rec-
ord, that no one had spoken to her about her testimony, that
she had misunderstood the earlier questions from the court,
and that Kurtz had indeed explained to her that she could not
say certain things, such as “pressing charges, and the other
one was about something about doctors, doctors diagnoses or
something like that. I know there was a few others.” Id. at 950.
The court was not convinced and found this explanation
to be “ludicrous.” Fuery, 2016 WL 5719442, at *5. The court
concluded that the more likely scenario was that Kurtz or her
agent told Tomaskovic that her testimony could lead to a mis-
trial and that she needed to correct the problem by lying about
her level of preparation. The other possibility, the court con-
cluded, was that Kurtz did properly prepare Tomaskovic and
yet the client deliberately chose to offer improper testimony
and only recanted when she learned of the potential for a mis-
trial. Either way, the court concluded, “Tomaskovic acted
abusively toward the judicial process.” Id.Shortly after Tomaskovic asked to address the court,
Fuery and Sciortino also entered the courtroom and requested
to address the court. On the record, both stated that Kurtz had
instructed them regarding the rulings in limine prior to trial.
The district court concluded that it was unlikely that Fuery
and Sciortino would have decided to come back into the
courtroom to address the court on their own initiative, thus
supporting the finding that Kurtz or her agent instructed her
clients to inform the judge that they had been prepared on the
rulings in limine.
16 No. 16-3786
The plaintiffs complain that the district court’s inquiries
about whether Kurtz properly prepared Tomaskovic for trial
violate the attorney-client privilege. The judge asked a very
limited question about whether Tomaskovic had been in-
formed about the rulings in limine and instructed how to pro-
ceed accordingly. It required a “yes” or “no” answer (and, in
fact, this is what the judge received—a “no” and “No, not spe-
cifically.” R. 507 at 938, 939). The court’s order on the motions
in limine was a public document. The contents of it were not
subject to any privilege and the plaintiff and her counsel had
no protected privilege if they conspired to violate the court
order. We find this argument to be a red herring. Moreover,
all three plaintiffs came back into the courtroom of their own
volition to discuss their preparation for trial, thus waiving
any privilege if it had existed. See Appleton Papers, Inc. v.
E.P.A., 702 F.3d 1018, 1024 (7th Cir. 2012).
The plaintiffs also object to the district court’s conclusion
that Tomaskovic either lied about being prepared or deliber-
ately violated the rulings in limine. The plaintiffs claim that a
third possibility—that Tomaskovic was nervous and over-
whelmed by the proceedings and inadvertently misspoke—
was the more likely scenario. The district court, as the arbiter
of candor and demeanor, determined, “If this had been the
first instance, I would be much more likely to believe that she
was emotionally overwrought, didn’t understand what I was
asking and didn’t have a clue about what was going on. But
she understood, and she understood me, and she knew ex-
actly what I was asking.” R. 507 at 943. This court will not
overturn the district court’s credibility findings unless “after
reviewing all the evidence, we are left with a definite and firm
conviction that a mistake has been made. … In other words, a
No. 16-3786 17
district court’s credibility findings are binding on appeal un-
less the court has chosen to credit exceedingly improbable tes-
timony.” Hernandez v. Cardoso, 844 F.3d 692, 695 (7th Cir.
2016). We see no reason to overturn the court’s credibility
finding on this matter.
One would assume that after all of the warnings and a
near mistrial, Kurtz would have given each witness a thor-
ough remedial course on the preliminary rulings, yet Kurtz’s
expert stepped point blank into forbidden territory as well.
The question as to whether Szura acted as an officer or as
a private citizen was in the hands of the jury and forbidden,
by preliminary ruling, from mention by experts. Nevertheless
when Kurtz asked her witness, “Why is it important to an-
nounce that you’re a police officer?” The expert answered:
“Because … He’s acting as a police officer.” R. 510 at 1519. Af-
ter all of the time spent warning Kurtz to prepare her wit-
nesses properly, the district court judge declared her “frustra-
tion level is through the ceiling.” R. 510 at 1522. The district
court concluded, in its ruling, that the violations were preju-
dicial and unethical. We do not have reason to question the
district court’s finding.
C. Communications with the media
Following the first day of trial, both the district court and
the City’s counsel independently noticed an article on the
front page of the Chicago Tribune about the trial with links to
audio files and transcripts of 911 calls and still photos from
the “day in the life” video of Tomaskovic that her counsel had
requisitioned to demonstrate her physical condition around
the time of her surgery. None of these exhibits had been ad-
18 No. 16-3786
mitted into evidence. The district court, concerned about im-
proper influence of the article on the jury, began an investiga-
tion into how the Chicago Tribune procured the material. Kurtz
vehemently denied providing the material to the reporter,
claiming that the only thing she said to the reporter after the
first day of trial was “no comment.” She adamantly stated to
the court, “I will swear to you I did not send [the photograph]
to him. I will confer with my clients, but I can also assure you
that they did not either.” R. 505 at 289.
The court’s investigation of the leak continued with in-
quiries of all counsel, interviews of court staff, inquiries into
Illinois State Police FOIA requests, and by summoning the re-
porter who ultimately refused to name his source. The court
spent significant time and resources trying to unravel the
origin of the disclosure.
During the investigation, the attorney for the City in-
formed the court that he had notified Kurtz about the Tribune
article when Kurtz arrived at court at 8:50 a.m. the day of pub-
lication. Kurtz denied sending the material to the Tribune and
exited the courtroom. She returned a few minutes later stating
that she did not see any transcripts linked to the article. The
City’s attorney noted to the court that the article was modified
at 8:58 a.m.—during the exact time that Kurtz was out of the
courtroom. He was later able to locate an electronically
cached copy of the 911 transcript attached to the article which
included the marking, “Plaintiffs’ Exhibit 4.” Only the plain-
tiffs and anyone to whom they had sent it possessed this par-
ticular copy of the transcript. The court clerk’s office con-
firmed that it was not in possession of the audio files and no
one had attempted to access the publicly filed version of the
No. 16-3786 19
transcript (which would not, in any event, have had the
“Plaintiffs’ Exhibit 4” marking).
Before lunch the court once again questioned Kurtz about
whether she provided a photograph to the press. Kurtz once
again adamantly insisted, “I did not give it to him, Your
Honor, and I swear on that. I did not give it to him.” R. 505 at
307. The court then asked if she had given the press the “day
in the life” photo in 2013. Kurtz replied: “I don’t think so … I
would have to check.” R. 505 at 308. After twice “swearing to
the court” that she had not provided the reporter with the
“day in the life” photograph, following lunch she conceded
that she had indeed provided the reporter with the “day in
the life” video two years prior—in December 2013. She con-
tinued to deny sending him the 911 transcript. She also altered
her story regarding her interaction with the Tribune reporter
the day before, explaining: “So and then last night Mr. Meis-
ner was downstairs , and I told him that things were excluded
from the case and they cannot be—they’re not in the trial.”
R. 505 at 316. When the district court asked about the incon-
sistency with her prior report, she explained that she “just re-
membered that [she] said ‘no comment,’ to him” but that her
co-counsel had recalled the details differently and reminded
her. Id. at 317–18 (quotation marks added). The district court
did not find the explanation to be credible. Although the dis-
trict court stated that it could not conclusively determine how
the Tribune obtained the transcript and audio recording, it as-
sumed that, in light of the evidence and “general lack of re-
spect and candor displayed by plaintiffs’ counsel throughout
the trial, in addition to Kurtz’s shifting recollection of events,”
the most likely scenario was that Kurtz or someone working
at her direction had provided the material to the media. Fuery,
2016 WL 5719442, at *8. The court concluded that “regardless
20 No. 16-3786
of how the materials were provided to the media, the most
egregious violation in this instance was Kurtz’s dishonesty to
the Court in response to its investigation of this issue.” Id. at
*8. After interviewing the jurors, the court determined that
they were not prejudiced by the article, but that the whole is-
sue was a distraction to the proceedings and the opposing
side.
The plaintiffs argue that the district court’s sanctions vio-
late the First Amendment by punishing counsel for her com-
munications with the media. The plaintiffs’ discussion of law-
yers’ rules of professional conduct regarding statements to
the media is irrelevant and we need not explore the legitimacy
of a court’s restrictions of communications with the media
during trial. As we stated at the start, the court did not sanc-
tion the plaintiffs for any one particular act, but to the extent
that the media communications issue made up a larger bun-
dles of straws on the camel’s back, the court made clear that
the primary violation was not necessarily the contact with the
media, but “the most egregious violation in this instance was
Kurtz’s dishonesty to the Court in response to its investiga-
tion of the issue.” Fuery, 2016 WL 5719442, at *8. Between the
suspicious timing of the alteration to the Tribune article and
Kurtz’s shifting explanations and recollections, the court was
entitled to factor lack of candor into its decision on sanctions.
D. Destruction of notes
Perhaps nothing caused more rigmarole and distraction
for the court than the skirmish over Fuery’s missing notes.
Once again, because our only task is to determine the outer
limits of the court’s inherent authority, we need not describe
the course of events in as much detail as the district court did.
(Those details are available at Fuery, 2016 WL 5719442, at *8–
No. 16-3786 21
9). We note, however, that while considering sanctions, the
district court thoroughly explored and aired what happened
to the missing notes and the forthrightness of the parties in
their explanations. The summarized version of events is as
follows:
During the cross examination of plaintiff Fuery, Szura’s
attorney asked Fuery about a set of notes she had written the
morning after the altercation with Officer Szura which memo-
rialized and detailed the incident. Fuery confirmed that she
did indeed write a set of notes and took them to a meeting
with Kurtz and “gave them to her.” R. 506 at 589. This sur-
prised defense counsel because Fuery had testified at her dep-
osition that she had discarded the notes after meeting with
Kurtz. In short, Fuery’s initial testimony at the deposition (we
will call this version 1) was that she made notes after the inci-
dent at the direction of a state trooper and then she discarded
the notes after her meeting with Kurtz. R. 252-2 at 447. At trial
(version 2), she testified that she gave the notes to Kurtz and
did not throw them out. The surprise led to a side bar confer-
ence wherein Kurtz told the court that she directed the plain-
tiffs to make the notes and thus they were privileged (version
3). The court then called Fuery back into the courtroom for
clarification and she reiterated that she made the notes at the
direction of the trooper, not Kurtz, and that she gave those
notes to Kurtz (version 4). After Fuery left the courtroom,
Kurtz again insisted that she had only one set of notes—those
that she had directed the plaintiffs to make and that she was
unaware of any document request that would have required
her to disclose them (version 5). The court, with the defend-
ants’ help, however, pointed out several document requests
to which the notes would have been responsive. At this point,
22 No. 16-3786
and after a break in the trial, Kurtz stated that she had re-
viewed her records and determined that she instructed the
plaintiffs to create a different set of notes (presumably thus
privileged) several months after the incident, rather than days
later as she had stated in the morning, that Fuery must have
been thinking about notes she took to her criminal attorney,
that she (Kurtz) did not receive any notes a few days after the
incident, and that Fuery threw them away (version 6). For the
final version (version 7), Fuery returned to the courtroom and
assured the court that she had not spoken with anyone about
her testimony while she was out of the courtroom, but yet re-
versed her trial testimony and went back to her original dep-
osition account, stating that she threw out her own notes and
did not leave them with Kurtz. R. 506 at 625. She also con-
firmed that she was not confusing the meeting with her crim-
inal defense lawyer with her meeting with Kurtz. The court
found “the reversal of her testimony at trial to be highly sus-
picious and likely the result of improper coaching by Kurtz or
someone working for her attorney during the recess.” Fuery,
2016 WL 5719442, at *9.
In the end, the district court threw up its hands conclud-
ing:
The Court need not determine which set of facts
is the truth. Whether Fuery gave the notes to
Kurtz as she testified at trial, or threw them out
after meeting with Kurtz or some other attorney
as she stated during her deposition, the notes
were not available to Defendants, and this prej-
udiced them. Furthermore, Kurtz’s behavior
when addressing this issue during trial was just
No. 16-3786 23
another example of her staking out the most fa-
vorable position to herself and only backing
down, incrementally, when presented with
facts that contradicted her preferred narrative.
… Not only are these shifting explanations un-
fair to Defendants and deceptive to the Court,
they caused the Court and Defendants to waste
a great deal of time attempting to sort out the
truth.
Fuery, 2016 WL 5719442, at *9. Consequentially, the court gave
the jury a spoliation instruction informing them that they
could “assume that such evidence would have been unfavor-
able to plaintiffs only if you find by a preponderance of the
evidence that, one, plaintiffs intentionally destroyed the evi-
dence; and, two, plaintiffs destroyed the evidence in bad
faith.” R. 510 at 1652. The court, however, determined that the
spoliation instruction was insufficient as a sanction for
Kurtz’s and Fuery’s behavior and that it could also form one
of the bases for the sanction that the court ultimately chose—
entry of judgment for defendants. Fuery, 2016 WL 5719442, at
*9.
The plaintiffs argue that Fuery’s disposal of her notes was
no worse than defendant Illinois State Police Special Agent
Aragones’ destruction of his notes after he completed his re-
port of the incident. Aragones, however, destroyed his notes
after transferring them to a formal report as part of his regular
professional practice and procedure. Fuery, who had no such
regular professional practice, discarded her notes that she
brought to her counsel’s office despite the fact that she in-
tended to initiate a lawsuit in which the notes would be rele-
vant. See Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672,
24 No. 16-3786
681 (7th Cir. 2008) (a party has a duty to preserve evidence
when it knows or should know that litigation is imminent).
E. Miscellaneous misrepresentations
The district court also made findings about various other
misrepresentations to the court including misstating the Fed-
eral Rules of Evidence, misstating a ruling on a motion in
limine and others. We need not address these in detail for we
find that the district court set forth ample evidence to support
its use of its inherent authority to enter judgment for the de-
fendants.2
III.
After setting forth all of the misconduct in detail, the dis-
trict court concluded that “Plaintiffs’ trial counsel engaged in
repeated misconduct throughout the trial and that Plaintiffs
actively participated in the misconduct.” Fuery, 2016 WL
5719442, at *1. Consequently the court used its inherent au-
thority to enter judgment in favor of the City and Szura on
Tomaskovic’s excessive force claim and grant the City’s mo-
tion for sanctions with respect to Fuery and Sciortino’s claims,
because the court concluded that “both of them participated
in the misconduct at trial and are equally accountable for the
misconduct of their attorney.” Id.A federal court’s inherent authority is an implied power
that emanates from the nature of the institution and the need
to “impose silence, respect, and decorum, in their presence,
2 The plaintiffs dedicate a page to the court’s ruling that Tomaskovic vio-
lated a ruling in limine by referring to her herniated and bulging disc.
Plaintiffs’ Brief at 17. The district court barely mentioned this violation,
raising it only insofar as it touched upon whether she had been properly
prepared for testimony by her attorney. Fuery, 2016 WL 5719442, at *5.
No. 16-3786 25
and submission to their lawful mandates … so as to achieve
the orderly and expeditious disposition of cases.” Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991) (internal citations omit-
ted). Most relevant to this case is the federal court’s power to
vacate its own judgment upon proof that a fraud has been
perpetrated upon the court. Id.at 44. A court may use its in-
herent authority to sanction those who show “willful disobe-
dience of a court order,” act in “bad faith, vexatiously, wan-
tonly, or for oppressive reasons,” for fraud on the court, de-
lay, disruption, or “hampering enforcement of a court’s or-
der.” Id. at 45–46. A court’s inherent authority is broad:
“Courts traditionally have broad authority through means
other than contempt—such as by … entering default judg-
ment—to penalize a party’s failure to comply with the rules
of conduct governing the litigation process.” Int'l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 833 (1994).
See also Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir.
1993) (“Moreover, pursuant to this power, a court may im-
pose the severe sanction of dismissal with prejudice (or its
equivalent, judgment) if the circumstances so warrant.”). This
power is particularly broad where the bad faith conduct oc-
curs within the presence of the court (thus making fact-find-
ing unnecessary) and where the court uses the sanction to
maintain “the integrity of the trial process.” Id. at 832. Such is
the case here.
A district court may impose sanctions under its inherent
authority “where a party has willfully abused the judicial pro-
cess or otherwise conducted litigation in bad faith.” Tucker v.
Williams, 682 F.3d 654, 661–62 (7th Cir. 2012). The court must
first make a finding of “bad faith, designed to obstruct the ju-
dicial process, or a violation of a court order.” Id. at 662. Mere
clumsy lawyering is not enough. Id. As the district court
26 No. 16-3786
noted, and this court has said, issuing a judgment is a “pow-
erful sanction” and one that should be used judiciously after
determining that there is “a clear record of … contumacious
conduct” after considering “the egregiousness of the conduct
in question in relation to all aspects of the judicial process”
and considering whether less drastic sanctions are available.
Barnhill, 11 F.3d at 1367–68 (citing Webber v. Eye Corp., 721 F.2d
1067, 1069 (7th Cir. 1983)). See also Chambers, 501 U.S. at 44(“[b]ecause of their very potency, inherent powers must be
exercised with restraint and discretion.”). That power is at its
pinnacle, however, when contumacious conduct threatens a
court’s ability to control its own proceedings. Mine Workers,
512 U.S. at 832. As we discuss below, the less immediate the
court’s need, the more due process it ought to provide before
imposing sanctions. Id. Although part of a court’s considera-
tion should be on the impact or effect that the conduct had on
the course of the litigation, there is no requirement that the
district court find prejudice. Id. Nor is there a requirement
that a district court impose graduated sanctions. “[T]he ap-
propriateness of lesser sanctions need not be explored if the
circumstances justify imposition of the ultimate penalty—dis-
missal with prejudice.” Dotson v. Bravo, 321 F.3d 663, 667 (7th
Cir. 2003).
We find that the district court considered all of this—the
egregiousness of the conduct, the effect on the course of the
litigation and the possibility of lesser sanctions. The district
court made very thorough findings regarding the plaintiffs’
bad faith conduct. The court was convinced that this was not
a case of clumsy lawyering, but that “the continuous, contu-
macious course of conduct pursued by Kurtz, and on several
occasions aided by each of her clients and her co-counsel, rises
to the level of severity where a sanction of judgment for the
No. 16-3786 27
City and Szura is appropriate.” Fuery, 2016 WL 5719442, at
*10. The court concluded that the misconduct was repeated,
frequent, willful and intentional; wasted the court’s time with
sidebars and investigations; unfairly distracted the defend-
ants’ counsel from time it could have been preparing the mer-
its of its defense; and prejudiced the defendants. As a result,
the court concluded that the factual findings supported the
court’s decision to issue a judgment in favor of the defendants
as a sanction in this case and that lesser sanctions were not
appropriate. Id. at *2,*11. We find that the court articulated
valid bases on which to sanction the plaintiffs using its inher-
ent authority. See Tucker, 682 F.3d at 662.
The plaintiffs counter the district court’s catalogue of in-
fractions by attempting to unravel each violation and demon-
strate its inconsequential nature. And, in fact, when explained
by the plaintiffs in this way, many of the violations may seem
trivial (others, however, not at all). But once again, it is the
district court who can evaluate the whole ball of wax and de-
termine whether the small incremental blows to the integrity
of the trial add up to something that requires sanctioning.
Death by a thousand cuts is no less severe than death by a
single powerful blow.
We also find that the plaintiffs had sufficient due process.
As we noted, the amount of process required depends on the
nature of the sanction and the nature and severity of the con-
duct. Contumacious conduct that occurs in the presence of the
court and disrupts the fairness and integrity of the judicial
process requires less process than out-of-court conduct sub-
ject to criminal sanctions. See Mine Workers, 512 U.S. at 831–
34. For example, “petty, direct contempts in the presence of
28 No. 16-3786
the court traditionally have been subject to summary adjudi-
cation, to maintain order in the courtroom and the integrity of
the trial process in the face of an actual obstruction of justice.”
Id. at 832. This court has held that no warning is required for
sanctions where the conduct is severe and the party repre-
sented. Matter of Bluestein & Co., 68 F.3d 1022, 1026 (7th Cir.
1995). But even if warning were required, the plaintiffs had
plenty. For example, the court warned plaintiffs’ counsel on
many occasions of the possibility of sanctions and mistrial:
• “I don’t intend to have this trial be a circus, and I won’t
allow it to be a circus. … you will get sanctioned. … If I find
that people violate orders on motions in limine, I won’t hesi-
tate to sanction you.” R. 502 at 4–5.
• “I don’t want anymore [sic] dancing around or near or by
the rulings on the motions in limine. And if I have to deal with
it again, I will say something in front of the jury, and you
won’t appreciate what I say in front of the jury.” R. 504 at 207–
08.
• “You have apologized up one side and down the other.
And frankly, when you have to apologize over and over and
over again, you need to stop and think, ‘Why do I need to
keep apologizing? What am I doing? Because if I have to keep
apologizing over and over again, I must be doing something
that I shouldn’t be doing.’” R. 504 at 277.
• “And if you walk into rulings on motions in limine like
you did today, where you asked specific questions calling—
that include inadmissible hearsay in those questions, I will
speak to you in front of the jury, and I will sanction you.”
R. 504 at 279–80.
No. 16-3786 29
• “If I find out that [the Tribune reporter] received this infor-
mation from the plaintiffs or plaintiff’s counsel, because I’m
at a loss as to where he got that photograph, if I find out it
came from plaintiffs or plaintiff’s counsel, I will be making a
referral to the ARDC, so you’re on notice.” R. 505 at 296.
• After investigating the Tribune story the court “reserve[d]
[its] right to finish up this investigation at the conclusion of
the trial.” R. 505 at 318.
• “I have to say that your conduct with regard to this trial
thus far has been inexcusable.” R. 505 at 318.
• “So you are going to live with the consequences of your
mistakes. … And I am going to hold everyone, all the lawyers,
to the conduct that I expect in this courtroom. People cannot
play fast and loose with the rules.” R. 505 at 362.
• “I am going to spend the weekend thinking about how this
trial has been going and what’s been happening so far and
whether there should be any sanctions, up to and including a
mistrial, because I've had enough.” R. 507 at 924.
• “I mean, the nonsense that has been pulled in this trial is
unbelievable. And it is one thing after another. It is asking in-
appropriate questions such as do you have insurance. How
on earth is that relevant? It is not relevant. Moreover, it is prej-
udicial. And you know it. … You wanted those jurors to know
that she was self-employed and that she had no money and
had no insurance and had all these bills that are outstanding
that she has not paid. And that is inappropriate and unethical.
Asking questions that in the body of the question contain in-
admissible hearsay is unethical and improper. Talking to a re-
porter about your case while the case is being tried is unethi-
cal. And what you said about what you said to him went from
30 No. 16-3786
‘no comment’ to ‘don’t publish the stuff that’s been excluded,’
which of course begs the question that you have already been
speaking to him and he knows what’s been excluded and
what hasn’t been, unethical.” R. 507 at 941–42 (quotation
marks added).
• Denying a motion for mistrial for the time being but not-
ing that “[t]here are plenty of options once the trial is con-
cluded to deal with the misconduct that’s happened, and we
will deal with that at the end of the trial. So I’m not letting it
go.” R. 508 at 957.
• “[M]y frustration level is through the ceiling with plain-
tiffs’ counsel at this point. … He clearly has not been in-
structed as to what he can say and what he can’t say with re-
gard to the motions in limine, obviously.” R. 510 at 1522–23.
The court held several mini-evidentiary hearings—ques-
tioning the plaintiffs under oath about their preparation,
speaking with the Tribune reporter, the attorneys and the
clerk’s office. The City requested sanctions on December 13,
2015 (R. 405), January 5, 2016 (R. 419); February 3, 2016
(R. 431); and April 8, 2016 (R. 461). Moreover, it goes without
saying and hardly needs citation that a court need not warn a
plaintiff, and particularly not a lawyer, that it may not lie to a
court. See, e.g., Ayoubi v. Dart, 640 F. App'x 524, 529 (7th Cir.
2016) (“no one needs to be warned not to lie to the judiciary.”)
(citing Mathis v. N.Y. Life Ins. Co., 133 F.3d 546, 547 (7th Cir.
1998)). The defendants’ motion under Rules 50(b) and 60(b)(3)
after trial certainly should have given plaintiffs adequate no-
tice of the potential for a judgment against them. See R. at 431.
But if it did not, the defendants filed a renewed motion on
April 8, 2016 “in order to provide plaintiff with an additional
opportunity to offer any explanation available as to how and
No. 16-3786 31
why this occurred at trial.” Id. at 2. And at a status conference
on February 16, 2016, the district court reminded the plaintiffs
that a motion for sanctions was still pending and she was con-
sidering striking the judgment. Fuery, 2016 WL 5719442, at
*13. One might debate how much process is required under
the facts of this case, but whatever might be required, the
plaintiffs certainly had sufficient notice of the possibility of
sanctions up to and including a mistrial or judgment for the
defendants.
Additionally, we find that the district court adequately ad-
dressed the plaintiffs’ concerns that the clients were being
punished for the actions of their attorney. The court deter-
mined first, that the plaintiffs participated in the misconduct.
The court found that either Tomaskovic willfully disobeyed
the court’s rulings in limine as conveyed to her by her attor-
ney or that she lied to the court about being properly prepared
by her attorney. Either way, the court concluded, she partici-
pated in bad faith conduct. Moreover, the court concluded, as
things unfolded with Tomaskovic’s late-in-the-day (literally
and figuratively) alteration in testimony about trial prepara-
tion, the latter explanation for her behavior (that she was not
honest about being properly prepared) was more likely. This,
the district court concluded, was a more egregious violation,
as “dishonesty to the Court alone is sufficient to merit dismis-
sal of a claim.” Fuery, 2016 WL 5719442, at *12. See Montaño v.
City of Chicago, 535 F.3d 558, 563 (7th Cir. 2008) (“A district
court has inherent authority to sanction conduct that abuses
the judicial process”); Allen v. Chicago Transit Auth., 317 F.3d
696, 703 (7th Cir. 2003) (“it is arguable that a litigant who de-
frauds the court should not be permitted to continue to press
his case.”). The district court adequately supported the con-
clusion that there had been fraud on the court. The district
32 No. 16-3786
court judge made a factual finding that the questions the court
asked Tomaskovic about being prepared by her attorney were
clear and not confusing; Tomaskovic answered them without
trouble or equivocation; the timing of her change to the story
was extremely suspicious, as was her claim that no one had
spoken to her about her testimony. Fuery, 2016 WL 5719442,
at *5. The district court made similar findings about Fuery and
Sciortino’s testimony about their trial preparation. Id. at *6.
The court also found that Fuery gave false testimony about
her handwritten notes. Id. at *12.
But the district court noted in the alternative that even if
the plaintiffs themselves had not engaged in bad faith con-
duct, a court may enter judgment as a sanction even where
only the attorney and not the plaintiffs participated in the
misconduct. Id. at *12. See Ball v. City of Chicago, 2 F. 3d 752,
757 (7th Cir. 1993). “The clients are principals, the attorney is
an agent, and under the law of agency the principal is bound
by his chosen agent’s deeds.” United States v. 7108 W. Grand
Ave., Chi., Ill., 15 F.3d 632, 634 (7th Cir. 1994). See also Easley
v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004) (a client can bear
the consequences of her attorney’s neglect and contemptuous
conduct in a case). Given the record of misconduct by Kurtz,
the district court declared that a finding of plaintiff miscon-
duct was not required to support a sanction of judgment for
defendants. We agree, but also have no reason to doubt the
district court’s finding that the parties participated in the dis-
honest conduct too.
This also puts to rest the plaintiffs’ complaint that the
sanctions for Sciortino and Fuery were disproportionate to
their alleged misconduct. The plaintiffs claim that Sciortino’s
only fault was a “slip of the tongue” that she had no criminal
No. 16-3786 33
record. And that Fuery’s only sin was destroying her notes —
something that even one of the Special Agents stated that he
did as well. This argument ignores completely the district
court’s finding that Sciortino and Fuery conspired either with
Kurtz or her agent to mislead the court about their level of
preparation for trial (or, in the alternative, their purposeful
violations of the rulings in limine). It also ignores the fact that
the plaintiffs were responsible for the conduct of their attor-
ney. In short, plaintiffs’ complaints that the sanctions are dis-
proportionate to the gravity of the conduct are essentially
plaintiffs’ request for a different weighing of the conduct and
injury. Perhaps another district court judge may have con-
cluded otherwise on this matter, but we cannot say that the
district court judge here, evaluating all of the evidence and
weighing all of the testimony, abused her discretion. We see
no basis to overturn her conclusion that all three plaintiffs
participated in the bad faith conduct in a significant way.
Along with the consideration of the plaintiffs’ conduct, the
district court was also entitled to examine, as one factor in its
consideration, the modus operandi of the attorney as evi-
denced by her prior disciplinary history. Less than a year be-
fore the trial, this court, in an entirely separate matter, de-
scribed a string of misconduct by Kurtz in a trial in the district
court below and noted that she had a substantial disciplinary
history. Rojas v. Town of Cicero, Ill., 775 F.3d 906, 909–10 (7th
Cir. 2015). The Rojas panel highlighted that history with a
string cite of seven cases in which Kurtz had been disciplined.
Id. It also noted that, “Kurtz’s unwillingness to conform her
conduct to requirements laid down by judicial orders or rules
of procedure is unlikely to change unless courts respond
firmly.” Id. at 910. And indeed, we were correct.
34 No. 16-3786
The plaintiffs complain that the district court’s reliance on
this case was an invalid reason to grant sanctions. The district
court, however, made clear that its holding was not depend-
ent on a reference to Rojas, but that the court’s conclusion
about bad faith and sanctions was “amply supported by the
record in this case alone.” Fuery, 2016 WL 5719442, at *11.
We do not see why, in any event, the district court could
not consider Kurtz’s disciplinary history. Indeed, a prior
panel of our court encouraged courts to do just that. Rojas, 775
F.3d at 910. (encouraging courts to respond to Kurtz’s unwill-
ingness to conform her conduct to requirements laid down by
judicial orders or rules of procedure firmly). It is true that
when presenting evidence to a jury we keep propensity evi-
dence out of the mix to prevent a jury from concluding that a
person acted in accordance with some characteristic or trait.
See Fed. R. Evid. 404(b). In this case, however, the court was
acting on its own, under its inherent authority to rectify
abuses to the judicial system by an attorney whose job it is to
aid the court in the administration of justice. Courts must rely
on attorneys—officers of the court—to uphold rules and op-
erate with integrity and honesty in the courtroom. Almost 200
years ago the Supreme Court in its early years explained, “it
is extremely desirable that the respectability of the bar should
be maintained, and that its harmony with the bench should
be preserved.” Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530,
6 L.Ed. 152 (1824). When an attorney repeatedly violates the
standards and oaths of the profession, then a court may take
notice of that attorney’s disciplinary history when evaluating
whether sanctions are appropriate. Rojas at 909 (7th Cir. 2015).
Here, however, the record amply supports the sanctions with
or without considering Kurtz’s disciplinary history.
No. 16-3786 35
We need not address all of plaintiffs’ arguments about the
timing of the sanctions, and the motions initiating them. The
sanctions here were not issued pursuant to the Rule 50(b) and
Rule 60(b)(3) motions; they were issued pursuant to the
court’s inherent authority. A court may invoke its inherent
authority to sanction sua sponte. Chambers, 501 U.S. at 49. And
sanctions may be imposed years after a judgment on the mer-
its. Id. at 56.
In sum, we can conclude with confidence that the district
court was well within its discretion in using its inherent au-
thority to enter judgment in favor of the defendants. We could
end the discussion here, but for the fact that just a few months
after the decision, the Supreme Court issued its opinion in
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1184
(2017), addressing inherent authority and sanctions. In Good-
year, some months after settlement, the district court learned
that the defendant had knowingly concealed a highly relevant
and inculpatory document. Id. at 1184. The court could not
take its preferred action—entry of a default judgment—be-
cause the case had already settled. Id. Instead it ordered the
offending party to reimburse the other party for all attorneys’
fees and costs paid during the course of the litigation. Id. The
Supreme Court, however, concluded that although the dis-
trict court had the inherent authority to sanction the party for
its conduct—even long after the settlement of the case—the
court could only award attorneys’ fees that were compensa-
tory and not punitive. Goodyear, 137 S. Ct. at 1186 (citing Mine
Workers, 512 U.S. at 834). Thus, the Supreme Court held, a
court must “calibrate[] the damages caused by the bad-faith
act on which it is based.” Id.36 No. 16-3786
We have considered whether the Goodyear requirement to
calibrate the sanction to the bad-faith acts also applies to sanc-
tions other than an award of attorneys’ fees, like the order of
judgment here. We have reason to doubt that it does. The Su-
preme Court has instructed that sanctions such as “entering
default judgment [] to penalize a party’s failure to comply
with the rules of conduct governing the litigation process …
have never been considered criminal.” Mine Workers, 512 U.S.
at 833. But even assuming (without deciding the matter) that
the holding in Goodyear does apply to sanctions other than at-
torneys’ fees, we are confident that the district court exercised
reasonable discretion in reversing the judgment for To-
maskovic and entering judgment for the defendants across
the board.
Under Goodyear, calibrating the sanction to the bad faith
conduct only requires “rough justice” and not accountant-like
precision. Goodyear, 137 S. Ct. at 1187 (citing Fox v. Vice, 563
U.S. 826, 838 (2011)). And part of such rough justice might re-
sult in more sweeping sanctions when the bad faith conduct
has infected the entirety of the proceedings. See Chambers, 501
U.S. at 51; Goodyear, 137 S. Ct. at 1187–88. In this case, the dis-
trict court went through the laundry list of bad faith conduct
of the plaintiffs and their counsel and concluded that fairness
required a judgment for the defendants. It is true that the dis-
trict court used some language of punishment, but what is
also clear is that the district court assessed the total effect of
the misconduct on the integrity of the proceedings and issued
a sanction which would “maintain … the integrity of the trial
process.” Mine Workers, 512 U.S. at 832. And after assessing
the misconduct as a whole, the district court determined, as it
had discretion to do, that the most reasonable sanction in this
No. 16-3786 37
case was the entry of judgment for the defendants. We find
no abuse of discretion whatsoever.
Plaintiffs have also asked this court to reverse the judg-
ment entered against Fuery and Sciortino and remand for a
new trial. For the same reasons as articulated above, we con-
clude that the district court did not err in denying the plain-
tiffs’ motion for a new trial. The district court did not abuse
its discretion by issuing a judgment in favor of the City of Chi-
cago and Szura on all claims. Accordingly, the judgment of
the district court is AFFIRMED in all respects.