Lawrence Krivak v. Home Depot U.S.A., Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1276
LAWRENCE KRIVAK,
Plaintiff-Appellant,
v.
HOME DEPOT U.S.A., INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-6105 — Gary Feinerman, Judge.
____________________
ARGUED APRIL 27, 2021 — DECIDED JUNE 17, 2021
____________________
Before SYKES, Chief Judge, and EASTERBROOK and SCUDDER,
Circuit Judges.
SCUDDER, Circuit Judge. After Lawrence Krivak fell and in-
jured himself in a Home Depot parking lot, he sued the store
but failed time and again to prosecute his case. Krivak’s coun-
sel missed many court conferences and seemed to pay little
attention to court rules and case deadlines. Along the way,
counsel’s delinquency drew a scolding and sanction from the
magistrate judge and, in time, led to the district court giving
2 No. 20-1276
one clear and final warning—miss no more conferences or
face dismissal of your case. When Krivak’s counsel no-
showed another time, the district court stuck to its word and
dismissed the case. Krivak twice sought relief from the judg-
ment, but here too his counsel continued to miss deadlines,
thus limiting the scope of what we can review on appeal. The
only challenge properly before us is to the district court’s re-
fusal to reopen the case, and because we see no abuse of dis-
cretion, we affirm that judgment.
I
In July 2015 Krivak tripped in the parking lot of a Home
Depot store in Elk Grove Village, Illinois. He sued Home De-
pot U.S.A., Inc. in state court, claiming that he sustained sub-
stantial injuries, including a fractured elbow, because of the
store’s negligence. He alleged that his injuries required mul-
tiple surgeries and several sessions of physical and occupa-
tional therapy. Home Depot removed the case to federal court
on the basis of diversity jurisdiction. See 28 U.S.C.
§§ 1332(a)(1), 1441(a).
Beginning with the first status conference, Krivak’s coun-
sel, John James Corbett, missed many court appearances,
played loose with deadlines, and eventually drew a discovery
sanction and reprimand from the magistrate judge. Krivak’s
counsel attributed his delinquency to his firm’s unfamiliarity
with federal practice—specifically, his assistant’s inexperi-
ence with monitoring the district court’s electronic docket and
keeping an eye out for emails transmitting court orders,
scheduling information, and the like. But even as the litigation
progressed over the course of two years, the inattention con-
tinued. The district court’s patience eventually ran out.
No. 20-1276 3
As discovery came to a close, Krivak’s counsel failed to ap-
pear at the final two status conferences before the magistrate
judge. The no-shows prevented the court from confirming a
dispositive motions schedule. The magistrate judge and the
district judge both warned counsel against missing further
conferences. The magistrate judge provided a clear and pre-
cise instruction: “If counsel, for any reason, is unable to per-
sonally appear, he must notify the Court at least 24 hours in
advance.” And the district judge similarly warned that if
counsel failed to appear at yet another conference without 24
hours’ notice and good cause, “this case will be dismissed
with prejudice for want of prosecution.” The magistrate judge
and district judge then both scheduled status conferences for
December 19, 2019. Of his own accord, however, the district
judge struck his conference and rescheduled it for a day in the
new year. But the magistrate judge’s conference remained on
the calendar for December 19.
Despite both judges’ warnings, Krivak’s counsel failed to
appear at the magistrate’s December 19 status conference.
Nor did counsel provide any advance notice or explanation
for his absence. In his minute entry, the magistrate judge
stated that he was unable to confirm whether discovery was
complete without counsel’s presence and explained that this
status conference was the third in a row at which Krivak’s
counsel failed to appear without notice or any attempt to pro-
vide good cause.
The next day, the district judge concluded that enough
was enough and dismissed the case with prejudice because,
despite the court’s “clear warning,” Krivak’s counsel “again
failed to appear for a status hearing without advanced notice
or explanation,” and the “failure to appear interfered with the
4 No. 20-1276
progress of the case.” The district court entered final judg-
ment on December 20, 2019.
At this point, Krivak’s counsel apparently realized the
magnitude of the problem caused by his delinquency and
sought relief from the judgment. Counsel filed his first post-
judgment motion on December 23, which he titled a motion
to vacate the judgment under “Rule 6(b).” He explained that
his assistant mistakenly believed the court had canceled both
December 19 conferences, and so she did not keep the magis-
trate judge’s conference on the calendar. On January 6, 2020,
the district court denied the motion because “Rule 6(b)” sup-
plied no grounds for the relief sought, the motion did not ad-
dress any of the requirements for a post-judgment motion un-
der Rules 59(e) or 60(b), and counsel’s excuse for missing the
December 19 status conference did not justify relief in light of
the court’s clear warning.
The following day, Krivak and his counsel appeared in
person in the district court and asked to be heard. The district
court permitted counsel to make an oral motion for post-judg-
ment relief. Counsel acknowledged and clarified that his mo-
tion under “Rule 6(b)” reflected a typo and should have read
as a Rule 60(b) motion. He also reiterated that his latest failure
to appear resulted from a calendar error, and he explained
that his three prior missed appearances likewise reflected
similar scheduling mistakes by his assistant. In an effort to fall
on his own sword, Krivak’s counsel urged the court not to
dismiss the case because his client had been litigating the case
for years and suffered a significant injury after falling in the
Home Depot parking lot. The plea for another chance proved
too late.
No. 20-1276 5
The district court denied the oral Rule 60(b) motion on Jan-
uary 17, 2020, explaining that, after admonishing Krivak’s
counsel multiple times, counsel should have known “that he
was on vanishingly thin ice and that no further failures to ap-
pear would be tolerated.” Counsel, the court emphasized, had
a personal responsibility to track the court’s scheduled con-
ferences, especially given the fact that his staff’s errors had
caused his earlier failures to appear. Given counsel’s delin-
quency over the course of the entire litigation and the court’s
multiple warnings, including “rarely expressed ire from the
very patient Magistrate Judge,” counsel’s failure to attend the
December 19, 2019 hearing was “inexcusable and provided
ample justification” for dismissing the case with prejudice for
want of prosecution.
Krivak now appeals.
II
We begin, as we must, with our jurisdiction, and, more
specifically, with whether Krivak’s appeal is timely. See
Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing
of a notice of appeal in a civil case is a jurisdictional require-
ment.”). This timeliness question entails much complexity, in
no small part because of Krivak’s counsel’s continued inatten-
tion to the deadlines in the federal rules.
A
The beginning point is simple enough. The district court
entered judgment on December 20, 2019. Under 28 U.S.C.
§ 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A),
Krivak had 30 days to appeal.
The analysis is complicated by the fact that Krivak’s first
post-judgment motion deferred the initial appeal deadline. A
6 No. 20-1276
“timely post-judgment motion in the district court suspends
the judgment’s finality and thus defers the time for appeal un-
til the district judge has acted on the motion.” York Grp., Inc.
v. Wuxi Taihu Tractor Co., 632 F.3d 399, 401 (7th Cir. 2011) (cit-
ing FED. R. APP. P. 4(a)(4)). Because Krivak filed an initial
timely motion to reconsider the judgment, the starting date
for the 30-day appeal window became January 6, 2020, the
date on which the district court denied that motion. It matters
not for purposes of our analysis that Krivak labeled his initial
motion a “Rule 6(b) motion,” because regardless of what
counsel called it, all substantive motions filed within the time
period described by Rule 59(e) fall under that Rule regardless
of the lingo associated with the post-judgment motion. See
Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Wis-
consin, 957 F.2d 515, 517 (7th Cir. 1992). So the new deadline
to appeal the judgment and post-judgment order became Feb-
ruary 5, 2020—30 days from January 6.
Recall also that Krivak then filed a second motion seeking
relief from the December 20, 2019 judgment. On January 7,
2020, the day after the district court denied his first post-judg-
ment motion, Krivak appeared in the district court and orally
moved for relief, this time relying on Federal Rule of Civil
Procedure 60(b). Yet this second, oral motion did not further
defer the appeal deadline because, as we explained in York
Group, only one post-judgment motion can trigger deferral
under Federal Rule of Appellate Procedure 4(a)(4)(A). See
632 F.3d at 401 (“A second or successive post-judgment mo-
tion does not affect the time for appeal.”); see also Armstrong
v. Louden, 834 F.3d 767, 769 (7th Cir. 2016) (“Litigants cannot
string out the process, and defer the time for appeal, by filing
successive motions.”).
No. 20-1276 7
It is possible that Krivak intended with his oral motion to
seek reconsideration from the court’s denial of his first post-
judgment motion, but that too would not have deferred his
time to appeal. See 16A Charles Alan Wright & Arthur R. Mil-
ler, Federal Practice and Procedure § 3950.4 (5th ed. 2021) (“If a
motion listed in Rule 4(a)(4) is made, and the time for appeal
is extended, a motion to reconsider the district court’s denial
of the motion does not suspend further the running of the ap-
peal period; the losing party is entitled to only one suspen-
sion.”). Thus, even after the district court denied the second
motion on January 17, 2020, the appeal deadline remained
February 5, 2020.
Krivak blew that deadline by waiting until February 14,
2020 to file his notice of appeal. Once the appeal hit our
docket, we caught the deficiency and issued an order ques-
tioning the timeliness of his appeal. Krivak responded by re-
turning to the district court and asking for an extension of
time within which to appeal pursuant to 28 U.S.C. § 2107(c),
which permits district courts to extend the time for appeal
upon a showing of good cause or excusable neglect.
The district court granted the motion to extend the time to
appeal. It reasoned that Krivak’s failure to timely appeal re-
flected “excusable neglect” because he “reasonably under-
stood” his second motion that he made in open court on Jan-
uary 7, 2020 “to have been his first and only Civil Rule 60(b)
motion.” Having concluded that Krivak satisfied the excusa-
ble neglect requirement, the court extended the appeal dead-
line to February 14, 2020.
8 No. 20-1276
B
This messy record complicates our determination of the
scope of Krivak’s appeal. We can say for certain that Krivak
timely appealed the district court’s denial of his second post-
judgment motion—his oral Rule 60(b) motion. He filed his no-
tice of appeal on February 14, 2020—within 30 days of the Jan-
uary 17 denial. But what, if anything else, is properly before
us is much less clear. We review for abuse of discretion the
district court’s finding that Krivak’s failure to timely appeal
from the judgment dismissing the case resulted from “excus-
able neglect,” as defined by 28 U.S.C. § 2107(c). See Nestorovic
v. Metro. Water Reclamation Dist. of Greater Chi., 926 F.3d 427,
431 (7th Cir. 2019).
Section 2107(c) allows an extension of time to file a notice
of appeal upon a “motion filed not later than 30 days after the
expiration of the time otherwise set for bringing appeal” and
“a showing of excusable neglect or good cause.” 28 U.S.C.
§ 2107(c). We have previously explained that because Con-
gress imposed this limitation, the requirement to show excus-
able neglect or good cause to file an appeal outside the origi-
nal deadline is jurisdictional and cannot be sidestepped or
waived. See Nestorovic, 926 F.3d at 431. With this jurisdictional
requirement front and center, we are left to determine
whether the district court abused its discretion by extending
the appeal deadline.
In these circumstances, the district court had no room to
make a finding of excusable neglect or good cause, so grant-
ing the extension reflected an abuse of discretion. The district
court’s finding rooted itself in a determination that Krivak
“reasonably believed” his second post-judgment motion was
his “first and only” Rule 60(b) motion. But that finding,
No. 20-1276 9
however accurate, is of no legal consequence. Appellate Rule
4(a)(4)(A), we have concluded, “refers to a single post-judg-
ment motion”—including a Rule 59(e) or a Rule 60(b) mo-
tion—as deferring the appeal deadline. York Grp., 632 F.3d
at 401; see also Armstrong, 834 F.3d at 769. So whether
Krivak’s second motion was the first under Rule 60(b) does
not matter. His earlier motion under Rule 59(e) deferred the
appeal deadline once and only once.
Nor did Krivak’s motion to extend the appeal deadline
provide any legitimate basis for doing so. The motion con-
firmed counsel’s neglect but offered nothing suggesting that
the neglect was excusable. In the end, counsel’s “inability or
refusal to read and comprehend the plain language of the fed-
eral rules” cannot satisfy the strict excusable neglect standard
under § 2107(c). Satkar Hosp., Inc. v. Fox Television Holdings,
767 F.3d 701, 706 (7th Cir. 2014) (quoting Prizevoits v. Ind. Bell
Tel. Co., 76 F.3d 132, 133 (7th Cir. 1996)). Because § 2107(c) re-
quires a showing that Krivak did not make, he was not enti-
tled to an extension of time, and his appeal of the underlying
judgment is untimely.
All of this leads us to conclude that Krivak’s appeal is lim-
ited to the district court’s denial of his second post-judgment
motion filed under Rule 60(b). As a practical matter, however,
that conclusion changes very little because Krivak’s appeal is
all and only about whether the district court abused its dis-
cretion in dismissing his case for lack of prosecution. The dis-
trict court’s denial of the Rule 60(b) motion effectively
amounted to reinforcing and standing by its original dismis-
sal decision. So by reviewing the district court’s denial of the
Rule 60(b) motion, we are, for all intents and purposes, re-
viewing the underlying dismissal order. And we have no
10 No. 20-1276
doubt that the district court acted well within its discretion in
dismissing Krivak’s case.
III
A litigant’s willful failure to prosecute a lawsuit can justify
punitive dismissal with prejudice. See, e.g., Cartwright v. Silver
Cross Hosp., 962 F.3d 933, 936 (7th Cir. 2020). The decision to
issue such a severe sanction rests within the district court’s
discretion. See McMahan v. Deutsche Bank AG, 892 F.3d 926,
931 (7th Cir. 2018). District courts are in closer proximity to
the facts and circumstances leading to dismissal. Our review,
therefore, is deferential. We will reverse only upon a showing
that the district court has abused its discretion. See id.We see no abuse of discretion here. Krivak’s counsel
missed many conferences. This delinquency even reached the
point of drawing a discovery sanction for placing little im-
portance on court orders. When his inattention to scheduling
matters persisted, the district court gave a clear and final
warning. Nonetheless, counsel still inexplicably missed the
next conference. And he has no one to blame but himself, as
attorneys—not their staff—“are expected to exercise diligence
in monitoring the disposition of their cases.” Martinez v. City
of Chicago, 499 F.3d 721, 728 (7th Cir. 2007) (quotation omit-
ted). Disregarding court orders and deadlines is a risky
course, and counsel’s inattention caught up with him. The dis-
trict court acted within its broad discretion by sticking to its
word. See Aura Lamp & Lighting Inc. v. Int’l Trading Corp.,
325 F.3d 903, 908 (7th Cir. 2003) (holding dismissal was ap-
propriate following “an explicit warning”).
The misfortune of Krivak bearing the cost of counsel’s
shortcomings is not lost on us, but it does not provide reason
No. 20-1276 11
to overturn the district court’s decision. “[A]ttorney inatten-
tiveness to litigation is not excusable, no matter what the re-
sulting consequences the attorney’s somnolent behavior may
have on a litigant.” Dzik v. Bayer Corp., 846 F.3d 211, 216
(7th Cir. 2017) (quoting Harrington v. City of Chicago, 433 F.3d
542, 546 (7th Cir. 2006)). Because Krivak chose counsel as his
agent, he bears the consequences of counsel’s actions. See
Martinez, 499 F.3d at 728. It pains us to observe that “[t]he
proper remedy, if [Krivak] is to have one at all, is a malprac-
tice action against the attorney.” Id. That choice belongs to
Krivak, and we take no position on the merits of such a claim.
For these reasons, we AFFIRM.