Harrington, Richard v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4326
RICHARD F. HARRINGTON, TAVARES
HARRINGTON, TYJUAN KIDD, et al.,
v. Plaintiffs-Appellants,
CITY OF CHICAGO, OFFICER DELGADO,
OFFICER MORAN, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 00188—John F. Grady, Judge.
____________
ARGUED DECEMBER 2, 2005—DECIDED JANUARY 3, 2006
____________
Before BAUER, POSNER, and MANION, Circuit Judges.
MANION, Circuit Judge. Claims of excessive force by police
officers are at the heart of this suit brought under 42 U.S.C.
§ 1983. However, before the merits could be heard, the
repeated inattention of the plaintiffs’ attorney to the case
caused the district court to dismiss it for want of prosecu-
tion. The attorney, T. Lee Boyd, Jr., then moved, on behalf
of his clients, to vacate the dismissal. The district court
denied the motion, and we affirm.
2 No. 04-4326
I.
In January 2003, Richard Harrington, Tavares Harrington,
Tyjuan Kidd, and Brenda Johnson sued the City of Chicago
and several of its police officers (collectively “the City”),
asserting claims of excessive force and related claims. The
district court set the scheduling conference in the case for
September 16, 2003. The district court also ordered the
parties to exchange material documents in advance of the
conference.
The plaintiffs’ attorney, T. Lee Boyd, Jr., failed to appear
at the conference and did not provide any documents as
ordered. Without such documents, the City had no informa-
tion about the damages that the plaintiffs were claiming. As
a result, the district court explicitly ordered the plaintiffs to
disclose medical records or other information concerning
their purported damages. The district court also scheduled
a status conference for October 22, 2003, and issued the
following warning: “Failure of counsel for plaintiffs to
appear at that conference will result in a dismissal of the
case for want [of] prosecution.”
Boyd appeared for the status conference, and the dis-
trict court called Boyd’s attention to his absence at the
scheduling conference. Boyd only offered this explanation:
“Judge, what happened was, Judge, I had just gotten back in
town. It didn’t get on my call. I didn’t recognize— realize,
Judge, until later. So I apologize for that.” As far as informa-
tion on damages, Boyd gave the City some pictures of
bruises allegedly inflicted by the defendant officers but no
medical records, even though some of the plaintiffs were
allegedly hospitalized after the underlying incident. The
district court continued the status conference until April 28,
2004, two days before the discovery cutoff date.
No. 04-4326 3
Over the next several months, matters did not go well.
Boyd and his clients missed several deposition dates
without explanation. The City’s written discovery re-
quests went unanswered as did the City’s inquiries into
why Boyd and his clients were not responding or other-
wise participating in discovery. As the end of the discovery
period approached, Boyd had disclosed nothing but the
aforementioned photographs. Boyd did not communi-
cate with opposing counsel or the district court to explain
his inattention to discovery or to seek any adjournments/
extensions. While in some instances he had grounds to
request extensions of time (e.g., death in the family),
he repeatedly did not do so. In sum, Boyd simply ig-
nored the case for months on end.
When the April 28 date for the status conference arrived,
Boyd again failed to appear. In his absence, Boyd sent a
paralegal. Defense counsel recounted Boyd’s inactivity
during discovery for the district court and stated that,
despite making many attempts, “I’ve had no contact, no
response, no participation whatsoever from the plaintiffs on
this case.” When Boyd’s paralegal attempted to respond, in
open court, the district court refused to hear from the
paralegal, stating, “I do not permit the unauthorized
practice of law.” The district court then ruled: “This case is
dismissed for want of prosecution because of the complete
and consistent failure of plaintiff to cooperate in discovery.”
A written judgment to this effect was entered on April 29.
On May 10, Boyd responded by filing a “motion to vacate
the court’s order of April 28, 2004 dismissing the instant
matter for want of prosecution.” In the motion, Boyd
cited no authority, not even a federal rule. The motion
recounted some dates, offered some excuses, and prom-
4 No. 04-4326
ised future cooperation. After a hearing1 and further
briefing, the district court construed the motion as filed
under Fed. R. Civ. P. 60(b) and then denied it. Boyd, on
behalf of his clients, appeals.
II.
Because Boyd’s post-judgment motion is so vague, the
first matter to address is whether the motion should be
treated as a motion to alter or amend judgment under Fed.
R. Civ. P. 59(e), as Boyd now requests, or as a motion for
relief under Rule 60(b), as the district court treated it.
Altering or amending a judgment under Rule 59(e) is
permissible when there is newly discovered evidence or
there has been a manifest error of law or fact. See Bordelon v.
Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.
2000). Vacating a judgment under Rule 60(b) is permis-
sible for a variety of reasons including mistake, excus-
able neglect, newly discovered evidence, and fraud. See Fed.
R. Civ. P. 60(b). While the two rules have similarities, “Rule
60(b) relief is an extraordinary remedy and is granted only
in exceptional circumstances.” Karraker v. Rent-A-Center,
Inc., 411 F.3d 831, 837 (7th Cir. 2005) (quotation omitted).
1
The district court found Boyd less than credible at the hear-
ing and later observed: “Compounding matters further, when
presenting this motion, Boyd represented the following to the
court: ‘Judge, I have been practicing 31 years and I have been
in and out of these courtrooms, Judge, and I have never had
this kind of situation occur.’ Our research suggests otherwise;
suffice it to say, Boyd’s outright disregard for court orders and
rules of procedure is not limited to this case. See Russell v.
O’Grady, 908 F.2d 975 (7th Cir. 1990) (unpublished opinion);
Crawford v. Bank of Am., 181 F.R.D. 363 (N.D. Ill.1998).”
No. 04-4326 5
Rule 59(e), by contrast, requires that the movant “clearly
establish” one of the aforementioned grounds for relief.
Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th
Cir. 2001). Regardless, we review decisions under each rule
only for abuse of discretion. See id.Because Boyd filed the motion within ten days of the entry
of judgment, the motion could procedurally qualify as a
Rule 59(e) motion. See Fed. R. Civ. P. 59(e); Ball v. City of
Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (citing Charles v.
Daley, 799 F.2d 343, 347 (7th Cir. 1986)). The district court,
however, evaluated Boyd’s motion as a Rule 60(b) motion
because “the only arguable basis for relief presented in the
motion is Rule 60(b)’s ‘excusable neglect.’ ” This assessment
is correct. What is more, Rule 59(e) “does not provide a
vehicle for a party to undo its own procedural failures,”
which is precisely what Boyd attempts in the motion here.
Bordelon, 233 F.3d at 529 (quotation omitted). Boyd’s motion
is simply a plea for the district court to excuse his neglect in
prosecuting this case; as such, the motion advances no
grounds to support Rule 59(e) relief. See id. Furthermore, as
was the case in Ball v. City of Chicago, “[t]he motion in this
case not only did not mention Rule 59(e); it was not cap-
tioned a motion to alter or amend judgment, which is the
language of that rule, and indeed used the word ‘vacate,’
which is the language of Rule 60(b).” 2 F.3d at 760. On this
point, our admonition in Ball bears repeating here: “If a
litigant wants the benefit of whatever lower threshold of
proof Rule 59(e) may offer, it behooves him to indicate that
his motion is under Rule 59(e).” Id. For these reasons, the
district court properly reviewed Boyd’s motion under
Rule 60(b), specifically, Rule 60(b)(1), which covers excus-
able neglect. See id.“[T]rial judges are vested with discretion when determin-
ing whether an attorney’s neglect . . . is ‘excusable’ for
6 No. 04-4326
purposes of Rule 60(b)(1),” Robb v. Norfolk & W. Ry. Co., 122
F.3d 354, 363 (7th Cir. 1997), and “our review is, therefore,
extremely deferential.” Castro v. Bd. of Educ., 214 F.3d 932,
934 (7th Cir. 2000). “Although attorney carelessness can
constitute ‘excusable neglect’ under Rule 60(b)(1), attor-
ney inattentiveness to litigation is not excusable, no
matter what the resulting consequences the attorney’s
somnolent behavior may have on a litigant.” Easley v.
Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004) (internal citations
omitted).
Turning to Boyd’s proffered excuses, he first contends that
he and his clients did not respond to discovery requests and
did not appear for noticed depositions during the October
2003 to April 2004 discovery period because criminal
charges (aggravated battery of police officers) related to the
underlying incident in this case were pending during that
entire period against two plaintiffs, Richard and Tavares
Harrington. As for the other two plaintiffs, Johnson was not
subject to criminal proceedings, and criminal charges
against Kidd had already been dismissed. Per Boyd’s
request at the October 2003 conference, the district court
stayed the Harringtons’ depositions until February 1, 2004,
due to their ongoing criminal cases which, at that juncture,
had been pending for eighteen months and which Boyd
predicted would be tried in January 2004. As it turned out,
the charges remained pending until July 2004, when the
Harringtons pleaded guilty. Boyd, however, never sought
an extension of the stay nor an extension of the discovery
period.
The district court’s stay was straightforward and limited:
“It is ordered that the depositions of the Harrington plain-
tiffs’ [sic] are stayed until after 2/1/04.” Importantly, the
district court did not stay other forms of discovery (e.g.,
No. 04-4326 7
interrogatories, document requests) or the depositions
of Kidd and Johnson. Accordingly, the pendency of the
Harringtons’ criminal cases and the corresponding stay
did not justify the failure to respond to the City’s written
discovery requests throughout the discovery period nor
the failure to show up for the Kidd and Johnson deposi-
tion dates in December 2003 and the rescheduled dates
in March 2004. Had Boyd believed the stay was too nar-
row, he could have moved to expand it to include addi-
tional matters, but he certainly should not have con-
sidered it a license to ignore all discovery attempts by the
City.
In compliance with the stay, the City scheduled the
Richard and Tavares Harrington depositions for Febru-
ary 3 and 4, respectively. However, as was the case with
Kidd and Johnson, Boyd and Richard Harrington did not
appear for the February 3 deposition. Again, Boyd did not
request an extension of the stay beyond February 1. He did
not even communicate with opposing counsel about the
missed deposition. Rather, counsel for the City made
immediate inquiries of Boyd by telephone and fax to see
what had happened and to request confirmation that
Tavares Harrington would appear for the February 4
deposition. Boyd did not respond, and the February 4
deposition did not go forward. The City rescheduled the
depositions for late February and early March, but Boyd
and his clients, in a similar fashion, again failed to partici-
pate. Boyd appears to have assumed that, since he was
granted a stay in October 2003 on account of the pendency
of the criminal cases, the stay would continue until the
outstanding criminal charges had been resolved. This
assumption is unfounded and inexcusable. See Easley, 382
F.3d at 698 (counsel’s “unilateral assumptions” about a
district court adjusting a pretrial calendar did not constitute
8 No. 04-4326
excusable neglect). As the district court correctly observed,
if Boyd and his clients wanted to extend the stay, “it was
incumbent upon them to seek an extension of the stay.” See
Fed. R. Civ. P. 6(b)(1). They did not, and Boyd’s argument
here is meritless.
Boyd also attempts to justify his inaction during the entire
discovery period with the fact that his sister and father died
in January and February 2004, respectively.2 How these
unfortunate events related to his inattention to the case
before January 2004 is unexplained. As to the later period,
the district court found the excuse insufficient. This district
court’s handling of this issue was more than appropriate:
“While we realize that Boyd was going through a difficult
period during a portion of this case, there is nothing in the
record to suggest that Boyd’s circumstances prevented him
from advising the court or defendants of his situation. Had
he done so, we have no doubt that appropriate accommoda-
tions would have been made.” Put simply, despite the
deaths of his family members, Boyd could have and should
have contacted the district court and opposing counsel to
explain his circumstances and to work out amicable solu-
tions, such as an enlargement of the discovery period and
adjournments of depositions. See Fed. R. Civ. P. 6(b)(1).
Instead, Boyd kept opposing counsel in the dark while
opposing counsel was earnestly attempting to conduct
discovery. Boyd’s abandonment of this case during discov-
ery, therefore, cannot be excused by the deaths in his family.
See Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201
F.3d 894, 896-97 (7th Cir. 2000) (counsel’s “family crisis to
2
However, at least one other case during the discovery period
(October 2003 to April 2004) did not escape Boyd’s attention.
As discussed below, Boyd tried a state criminal case that April.
No. 04-4326 9
which he had to attend” did not constitute excusable
neglect); Davila-Alvarez v. Escuela de Medicina Universidad
Cent. del Caribe, 257 F.3d 58, 61, 65 (1st Cir. 2001) (“[A]
lawyer’s duty of diligence transcends both upheaval at
work and personal tragedy.”) (death of counsel’s brother,
who was also his law partner, did not constitute excusable
neglect when counsel failed to respond to discovery re-
quests and the case was dismissed for lack of prosecution).
Additionally, Boyd complains that the City never filed
motions to compel discovery and implies that this fact
should excuse his repeated lapses during discovery. He is
thus suggesting that he could ignore discovery proceedings
and avoid dismissal so long as opposing counsel had not
filed a motion to compel. Boyd cites no authority for this
notion. This is not surprising, since long-standing precedent
holds that district courts have the inherent power to remedy
dilatory conduct by dismissing a case for want of prosecu-
tion without a motion from the opposing party. See Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); O’Rourke Bros.,
Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 952 (7th Cir. 2000).
Beyond his idleness during discovery, Boyd’s failure to
appear before the district court at the April 28 status
conference was a critical factor in the dismissal. Boyd
attempts to excuse this absence with the fact that, on the
date in question, he was in trial in state court on an unre-
lated criminal matter. At oral argument on appeal, Boyd
further cited his status as a sole practitioner and suggested
that his preoccupation with this other case made it impossi-
ble for him to attend the status conference. Be that as it may,
it is widely accepted that neglect due to a busy schedule is
not excusable. See United States v. Dumas, 94 F.3d 286, 289
(7th Cir. 1996); Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d
97, 101 (1st Cir. 2003); Hunt v. City of Minneapolis, 203 F.3d
10 No. 04-4326
524, 528 n.3 (8th Cir. 2000); Baker v. Raulie, 879 F.2d 1396,
1399-1400 (6th Cir. 1989); Clinkscales v. Chevron U.S.A., Inc.,
831 F.2d 1565, 1569 (11th Cir. 1987). Common sense dictates
that there is a limit to the quantity of cases a sole practitio-
ner can professionally handle by himself at any one point in
time. Although Boyd expressed at oral argument that he
had done the best he could in this case, he appears to have
exceeded that limit here.
We need not repeat the frequent infractions set out here
and in the record. Suffice it to say, Boyd’s failure to notify
the district court and opposing counsel about his conflicting
trial date before the status conference is inexcusable.3 Sole
practitioner or not, Boyd, as a member of the bar, had duties
to his clients, to opposing counsel, and to the district
court—not the least of which was respect. See Williams v.
Chicago Bd. of Educ., 155 F.3d 853, 856 (7th Cir. 1998); United
States v. Stillwell, 810 F.2d 135, 136 (7th Cir. 1986); Wagner v.
Williford, 804 F.2d 1012, 1017-18 (7th Cir. 1986); Stonkus, 322
F.3d at 101; Vela v. W. Elec. Co., 709 F.2d 375, 377 (5th Cir.
1983); see generally Standards for Professional Conduct
within the Seventh Federal Judicial Circuit.4
3
See R.23 at 3 (district court to Boyd: “All you had to do was
make a phone call to my chambers and tell us you were on trial
and we would have put it over. That would be no problem.”).
4
These Standards are accessible at www.ca7.uscourts.gov/
Rules/rules.htm#standards. Paragraph 16 of the section entitled
“Lawyers’ Duties to Other Counsel” reads as follows: “We
will notify other counsel and, if appropriate, the court or other
persons, at the earliest possible time when hearings, depositions,
meetings, or conferences are to be canceled or postponed. Early
notice avoids unnecessary travel and expense of counsel and may
enable the court to use the previously reserved time for other
(continued...)
No. 04-4326 11
Relatedly, Boyd faults the district court for not hear-
ing from his paralegal at the on-the-record status confer-
ence. There are two points here. First, to the extent the
paralegal was simply carrying a message to the status
conference that Boyd was in trial and could not attend that
very conference, that message was too late. As discussed
above, such an inability-to-appear message should be
received in advance of the event in question in order to
avoid wasting the district court’s and opposing counsel’s
time. Second, to the extent that Boyd sent the paralegal to
appear before the district court and speak to the status of
the case at the conference, the district court properly refused
to hear from the paralegal. The practice of law includes
appearances in court, see United States v. Johnson, 327 F.3d
554, 561 n.10 (7th Cir. 2004), and, as the paralegal was not
licensed to practice law, the district court’s policing of this
conduct was certainly appropriate, see id. at 559-61.
Boyd also seeks to excuse his conduct by complaining that
the district court did not give him notice about the possibil-
ity of dismissal. The record indicates otherwise. The rule is
that district courts “should not dismiss a case on [failure-to-
prosecute] ground[s] without due warning to the plaintiff’s
counsel.” Ball, 2 F.3d at 755; see also Tango Music, LLC v.
Deadquick Music, Inc., 348 F.3d 244, 247 (7th Cir. 2004). Here,
the district court did give Boyd “due warning” about the
possibility of dismissal. After Boyd skipped the September
(...continued)
matters.” Further, we note that the application to join the bar of
the Northern District of Illinois (which is this case’s district of
origin) declares the following: “I have read and will faithfully
adhere to the Standards for Professional Conduct within the
Seventh Federal Judicial Circuit.” This application is available at
www.ilnd.uscourts.gov/PUBLIC/Forms/ genbar99.pdf.
12 No. 04-4326
scheduling conference, the district court ordered the
October status conference and, again, stated: “Failure of
counsel for plaintiffs to appear at that conference will result
in a dismissal of the case for want [of] prosecution.” This
was an explicit warning directed to Boyd and not a standing
order generally directed to all members of the bar. See Ball,
2 F.3d at 755-56. Moreover, district courts need not repeat
their dismissal warnings, and district courts are “not
obliged to treat lawyers like children.” Id. at 755. Thus, the
fact that the order referred to the October conference does
not alter the analysis; the warning was adequate to put a
lawyer on notice that another failure to appear for a court
date in this case would trigger dismissal. See id. at 755-56; cf.
Tango Music, 348 F.3d at 246-47; Aura Lamp & Lighting, Inc.
v. Int’l Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003).
Consequently, when Boyd failed to appear at the next court
date, the April 28 status conference, the district court was on
solid ground in dismissing the case.
Boyd further suggests that there was not a “clear record of
delay or contumacious conduct” to justify the dismissal.
Easley, 382 F.3d at 698. On the contrary, the failures to
appear for court dates, to disclose material documents as
ordered, to respond to written discovery requests, to appear
for noticed depositions, and to respond to oppos-
ing counsel’s inquiries into why Boyd and his clients
were not participating in discovery comprise a sufficient
record of delay. See id. At bottom, there was more than
enough here to dismiss the case for want of prosecution, and
the district court did not abuse its discretion in finding a
lack of excusable neglect under Rule 60(b)(1).5
5
Alternatively, had we reviewed Boyd’s motion under Rule
59(e), the outcome would be the same. See Tango Music, 348
(continued...)
No. 04-4326 13
III.
The district court did not abuse its discretion in denying
the Rule 60(b) motion to vacate the dismissal for failure to
prosecute. The record does not reveal any permissible
justification to excuse Boyd’s failures to appear before the
district court and the inattention to discovery obligations.
AFFIRMED
(...continued)
F.3d at 247. (Whether this postjudgment motion is reviewed
under Rule 59(e) or 60(b) is of “[n]o matter; whatever the
precise scope or standard of review, it is clear that the judge acted
properly in dismissing the suit for failure to prosecute after
clearly warning the plaintiff’s counsel that a further neglect of
deadlines would lead to that result.”); Romo, 250 F.3d at 1121 n.3
(“We do not believe that the Romos could have fared any better
under the more hospitable standard of Rule 59(e).”).
14 No. 04-4326
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-3-06