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