United States v. Golden Elevator, Incorporated

EASTERBROOK, Circuit Judge.

Ignoring deadlines is the surest way to lose a case. Time limits coordinate and expedite a complex process; they pervade the legal system, starting with the statute of limitations. Extended disregard of time limits (even the non-jurisdictional kind) is ruinous. “Lawyers and litigants who decide that they will play by rules of their own invention will find that the game cannot be won.” Northwestern National Insurance Co. v. Baltes, 15 F.3d 660, 663 (7th Cir.1994). The United States, which filed this suit to foreclose on a mortgage and collect from guarantors, missed several deadlines and suffered the usual consequence.

The complaint, filed in July 1992, was deficient. Defendants pointed to five problems. The United States filed an amended complaint fixing one of them, coupled with a brief contending that the other four were irrelevant. Defendants then sought dismissal of the complaint, and a magistrate judge ordered the plaintiff to respond. The United States did not file a response. The magistrate judge again ordered a response; once again the United States did not comply. At this point the district judge stepped in and on March 18, 1993, dismissed the first amended complaint and directed the United States to file a fresh complaint no later than April 2, 1993, rectifying the four remaining shortcomings. In order to impress on counsel the importance of complying with this order, the court added: “Plaintiff is informed that failure to file an amended complaint within the time prescribed will result in a dismissal of the ease.”

April 2 arrived, but an amended complaint did not. The United States did not ask for more time — and it had not asked the district court to reconsider the order of March 18 dismissing the first amended complaint. On April 7 the district judge, true to his word, dismissed the case with prejudice. The United States did not seek reconsideration under Fed.R.Civ.P. 59(e) or file a notice of appeal. On August 12, 1993, it filed a motion under Fed.R.Civ.P. 60(b)(1), which authorizes a court to relieve a litigant from a judgment based on “mistake, inadvertence, surprise, or excusable neglect”. According to a supervisory attorney who presented the motion, an inexperienced Assistant United States Attorney not only missed the series of deadlines but also failed to inform the head of the office’s civil division that the case had been dismissed. After the “Civil Chief [AUSA] conducted a periodic case-by-case file review and found out about this ease”, he made the Rule 60(b) motion. The subordinate’s omissions should be excused, the supervisor contended. The district court deemed the conduct inexcusable and added that the United States should concentrate on a newly-filed suit, seeking remedies for defaults after the dismissal of the first suit.

Dismissal with prejudice is a sanction, and sanctions should be proportionate to the wrong. Ball v. Chicago, 2 F.3d 752 (7th Cir.1993). Still, as Ball holds, a plaintiffs failure to comply with the court’s orders interferes with the conduct of the litigation and justifies dismissal. See also Newman v. Metropolitan Pier & Exposition Authority, 962 F.2d 589 (7th Cir.1992) (plaintiffs failure to attend own deposition justifies dismissal). Just as an entity may elect not to sue, so it may elect to abandon pending litigation. Ignoring deadlines and orders marks the abandonment of a suit, as surely as does filing a notice of dismissal. E.g., United States v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir.1994). The United States disdained orders and deadlines repeatedly: invited to correct five deficiencies in the complaint, it corrected one; it did not respond to the motion to dismiss the amended complaint, despite two orders requiring it to do so; it did not seek reconsideration of the order dismissing the amended complaint and setting a deadline for a new complaint; it did not file a new complaint; it did not seek reconsideration of the order dismissing the suit; it did not file a timely appeal. By August 1993 all it could do was throw itself on the mercy of the court — for that is what a motion under Rule 60(b)(1) does, and, if mercy is in short supply, the case is over. For appellate review of an order denying a motion under Rule 60(b) is exceptionally deferential. We review for abuse of discretion, and the district court’s order stands unless no reasonable person could have acted as the judge did. Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 831 (7th Cir.1985); cf. Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust, - U.S. -, -, 113 S.Ct. 2264, 2280, 124 L.Ed.2d 539 (1993). Litigants whose lawyers fall asleep at crucial moments may seek relief from the somnolent agents; inexcusable inattention to the case (the only sensible description of what happened here) does not justify putting the adversary to the continued expense and uncertainty of litigation. The district court accordingly did not abuse its discretion in declining to reinstate the case.

The United States has no real quarrel with the decision on the Rule 60(b) motion. Instead it wants us to focus on the orders of March 18 and April 7. The order of March 18 was arguably erroneous, and that error (if there was one) influenced the termination of April 7. The district court dismissed the whole amended complaint, even though the four remaining deficiencies were in Count I, which sought foreclosure. Count II, which sought to collect on the guaranties, was in good order. Why, the United States asks, should a district court throw a good claim out with a bad one? One potential answer is that litigation is less complex if there is only one active complaint. Instead of referring to the first amended complaint for Count II and the second amended complaint for Count I, the district court called on the plaintiff to file a new complaint sufficient on both counts. The United States did not need to change Count II when refiling; and we suppose the district court would have been satisfied if the United States had jettisoned Count I and refiled, by April 2, a new complaint limited to the guarantors. More than a desire for neatness may explain the decision of March 18: by failing to file the response for which the magistrate judge had called, the United States missed an opportunity to ask the district judge to limit his ruling to the foreclosure claim. At all events, the way to deal with an oversight was to ask for reconsideration, and, if that failed, to appeal. Having neglected its opportunities to complain of legal error, on which appellate review is plenary, the United States assumed the much tougher job of establishing abuse of discretion. It faded.

When asked at oral argument what the court should have done on April 7, after the United States had missed one deadline set by the magistrate judge and another set by the district judge, the supervisory Assistant United States Attorney suggested that the judge should have summoned a supervisor (perhaps the United States Attorney herself) into the courtroom and demanded an explanation. But a district judge is not the superior or supervisor of the United States Attorney, and the Executive Branch of the government is not accountable to the Judicial Branch for its litigation decisions. A district judge ought not interfere in the internal organization (or disorganization) of another branch of government. If the Executive Branch abandons a pending case, the district court should dismiss the litigation and devote its scarce time to the claims of parties seeking judicial attention. Supervision of Assistant United States Attorneys is a job for the Executive Branch, not for the Judicial Branch, and, if internal controls fail, the Executive Branch must accept the consequences.

The principle that the federal government is not estopped by its employees’ misrepresentations, see OPM v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990), does not excuse the United States from complying with the rules established for the conduct of civil litigation. The idea underlying Richmond and earlier cases such as Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), is that employees of the Executive Branch cannot authorize departures from statutes and rules having the force of law. See also, e.g., United States v. Medico Industries, Inc., 784 F.2d 840 (7th Cir.1986); Board of Trustees of the Public Employees’ Retirement Fund v. Sullivan, 936 F.2d 988 (7th Cir.1991). An error by an executive official leaves the rule of law unaffected and enforceable. In this case it is defendants who want to enforce the rules, and the United States that wants to avoid them. The district court might have afforded the United States still another chance, but it did not have to.

Affirmed.