Petition — Brazil v. Sambo's Restaurants, Inc.

“- Supreme Caurk, Dy ,

i FILE

FEB 12 1679

= JOR

No. 48 ] 25 0 Pad RODAK, JR., CLER

3n the

Supreme Court of the United States

Octoser Term, 1978

JOHN D. BRAZIL,

Petitioner,

v.

SAMBO’S RESTAURANTS, INC.,

Respondent.

PETITION FCR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Francis D. Morrissey

130 East Randolph Drive

Chicago, Illinois 60601

312-861-2819

Attorney for Petitioner,

John D. Brazil. |

Of Counsel:

Peter J. Mone

Micnaet K. Murtaven

130 East Randolph Drive

Chicago, Illinois 60601

312-861-8000

The Scheffer Press, Inc.—(312) 263-6850

TABLE OF CONTENTS

PAGE

PREFATORY NOTE .occcccccccscsesssssesseeeessessnesnessnsennanssnneenes 1

OPINIONS BELOW ......cccscssesesessssseerseeseseessensnennenenseneneneey 2

JURISDICTION wiccesccssssssssssessssseescessnsssenssnensneenenensnanenenneees 2

QUESTIONS PRESENTED FOR REVIEW ............. 3

STATEMENT OF THE CASE o.....cccscesesseseseeneesterssees 4

REASONS FOR GRANTING THE WRIT

I. The Decision Below Conflicts With The Decisions

of Five Other Courts Of Appeals As To When

A Litigant’s Cause Of Action May Be Dismissed

For Want Of Prosecution Solely Because Of The

Acts Or Omissions Of The Litigant’s Attorney,

Thereby Depriving Litigant Of An Adjudication

Of His Claim On The Merits. .......:csseseseserseeeeeeee 6

II. The Seventh Circuit Court Of Appeals Erron-

eously Misappried The Cases Cited In Support

Of Its Decision, Including A Decision Of This

Court; The Underlying Facts In The Cases Cited

Are Clearly Distinguishable From The Facts

FHOTERD. ..0.ccccccccecccoscessssccccscssesssocsccecsvoesseccesssoncccncssosseessese 14

III. The Court Of Appeals For The Seventh Circuit

Has Erred In Assuming That The Petitioner

Has A Viable Alternative Remedy In The Form

Of A Possible Cause Of Action Against His

Trial Counsel. .....cc.cccccsscsscsssssssessssseseeeeserssaneesesenrensnees 18

CONCLUSION .ucsecesssssssssssssssssssssesssencstenssenenansnessneneenenenensnsens 22

TABLE OF AUTHORITIES CITED

CasEs

Boazman v. Economics Laboratory, Inc., 537 F.2d

Q10 (5th Cir. 1976) ccoecsecsssssesssseersssesnsreensensnssssnsnesnsssees 9,10

Bonhiver v. Rotenberg, Schwartzman ¢ Richards, 461

F.2d 925 (7th Cir. 1972) c.rcccccsseseseesseseenensnennerenensenes 19, 20

%

ii

PAGE

Brown v. Gitlm, 19 Ill.App.3d 1018, 313 N.E.2d 180

ite eT a AE EO 18,19

Dorf v. Relles, 355 F.2d 488 (7th Cir. 1966) ...........008 19

Durham v. Florida East Coast Railway Company, 385

ae UN UII GES. BIUID * seiceceticocitnsesnitocerneensvemmeeentions 8,9

Dyotherm Corporation v. Turbo Machine Company,

ee OF: I I Me, ID sipiccecsntsvicsnasisitvsmeensecmanoonss 10

Jameson v. DuComb, 275 F.2d 293 (7th Cir. 1960) .... 15

Kohler v. Woollen, Brown & Hawkins, 15 Ill.App. 3d

455, 304 N.E.2d 677 (4th Dist. 1973) ccc 19, 20

Link v. Wabash R. Co., 370 U.S. 626 (1962) ..ccccccssssee-

RE RR TOT a TELE 15, 16, 17, 18, 21

Marshall v. Sielaff, 492 F.2d 917 (3d Cir. 1974) ....... 11

McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976) .... 7

Moore v. St. Louis Music Supply Co. Inc., 539 F.2d

SE WR. UI RRSP paclachaad es dnco\ccctnsnsncctestindeahbspiaoe teh 11,12

Moreno v. Collins, 362 F.2d 176 (7th Cir. 1966) ........ 13

M. S. v. Wermers, 557 F.2d 170 (8th Cir. 1977) ........ 12

Olson v. North, 276 Tll.App. 457 (2d Dist. 1934) ............ 19

Reizakis v. Loy, 490 F.2d 1132 (4th Cir. 1974) ........ 6, 7

Richman v. General Motors Corporation, 437 F.2d 196

gS ISR SAAD eo aan mre ea ODA Orie SO 11

Sapiro v. Hartford Fire Insurance Company, 452 F.2d

Re ee RRC eee ib cr CO 13

Scarver v. Allen, 457 F.2d 308 (7th Cir. 1972) ........ 13

Trustees of Schools v. Schroeder, 2 Tll.App.3d 1009,

BIS WOWBG 451 (at Dilek. TOVL) cecscccecccsscccoreccreccscesees 19, 20

Walski v. Tiesenga, 72 Tll.2d 249, 381 N.E.2d 279

GREE Wadesiibcae scalps hbcnbbiesabainlanaindelbelltiradetindensitiaincspraneeatinle 19

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1978

No.

JOHN D. BRAZIL,

Petitioner,

Vv.

SAMBO’S RESTAURANTS, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioner, John D. Brazil, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit, which entered an order on September

11, 1978, affirming the trial court’s granting of a dis-

missal for want of prosecution.

PREFATORY NOTE

This Court is urged to issue a writ of certiorari in order

to review a decision of the Court of Appeals for the

Seventh Circuit, which is in general agreement with cer-

tain decisions of the second and ninth circuits but in sharp

conflict with the decisions of five other circuits.

oaaiilae

The first, third, fourth, fifth, and eighth circuits

have consistently held that a dismissal, when it is based

upon the conduct of the litigant’s attorney, rather than

on the conduct of the litigant himself, should be invoked

only under extreme circumstances. The equitable prin-

ciples that govern the courts’ decisions in those circuits

are the following:

1) To favor adjudication on the merits;

2) To avoid punishing a litigant for the acts or

omissions of his attorney;

3) To consider the amount of prejudice suffered by

one party in imposing sanctions upon the offend-

ing party; and

4) To apply sanctions less severe than dismissal

whenever possible.

The decision that the Petitioner requests this Court

to review affirmed the dismissal of the Petitioner’s

cause of action solely because of the conduct of his coun-

sel, without regard to the absence of prejudice to the

Respondent and without consideration of less severe

and more appropriate sanctions.

OPINIONS BELOW

The opinion of the court of appeals affirming the de-

cision of the district court (A. la) is unreported. The

opinion of the district court dismissing the Petitioner’s

case for want of prosecution (A. 8a) is also unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 11, 1978. A timely petition for rehearing was

denied on November 13, 1978 (A. 7a) and this petition

aliens

for a writ of certiorari was filed within ninety (90) days

of that date. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED FOR REVIEW

Whether Petitioner’s cause of action may be dismissed

for want of prosecution less than six months after it was

filed and without consideration of less drastic sanctions,

thereby depriving the Petitioner of an adjudication of

his claim on the merits solely because of the acts or omis-

sions of the Petitioner’s attorney.

—

STATEMENT OF THE CASE

The Petitioner’s Complaint was filed on March 30,

1977, and was based on an alleged breach of a contract

that had been entered into between the Petitioner and

the Respondent wherein the Petitioner purchased from

the Respondent a twenty percent (20%) interest in a

restaurant known as “Sambo’s Portage” and became

manager of that restaurant. The Petitioner’s Complaint

also alleged a breach of other group joint venture agree-

ments between the parties.

Summons was served on the Respondent on April 19,

1977. The Respondent filed its appearance and answer

on May 9, 1977. A status call was held before Judge Ju-

lius Hoffman on July 21, 1977. At that time, Judge Hoff-

man set the trial of the case for September 20, 1977, al-

though the attorney representing the Petitioner indicated

to the court that, because of the discovery that remained

to be completed, the September 20, 1977, trial setting was

not realistic. No discovery cut-off date was established

nor was a date for the submission of a final pre-trial

order set. (A. 18a)

On September 20, 1977, the Petitioner’s attorney pre-

sented a motion for a continuance supported by the at-

torney’s affidavit setting forth that various depositions

had been set for the following month and that he, per-

sonally, was engaged in, trial in Niles, Illinois, and was,

therefore, unavailable for trial. (A. 10a) Judge Hoffman

entered an order denying the motion for a continuance

and dismissed the Petitioner’s case for want of prosecu-

tion,

=

On October 7, 1977, the Petitioner’s attorney presented

a motion requesting that the district court vacate its

dismissal order and set the matter for trial within thirty

(30) days. This motion was also denied. (A. 13a)

The district court, in dismissing the Petitioner’s case

for want of prosecution and in denying the motion to

vacate filed by the Petitioner’s attorney, cited the fact

that the Petitioner’s attorney had had two months’ notice

of the trial setting and should have been able to com-

plete his discovery and be available to begin the trial

on the date scheduled. (A. 22a, 26a)

The court of appeals, in affirming the district court,

also focused upon the actions of the Petitioner’s attorney,

which it felt evidenced “an unqualified indifference to

the September 20th court commitment.” There is no evi-

dence anywhere in the record that the dismissal for want

of prosecution was based in any way upon the actions

of the Petitioner. The court of appeals clearly recog-

nized this and yet affirmed the dismissal for want of

prosection suggesting that the Petitioner had a remedy

in the form of a malpractice action against his attorney.

(A. 6a)

pee Fe

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF FIVE OTHER COURTS OF AP-

PEALS AS TO WHEN A LITIGANT’S CAUSE

OF ACTION MAY BE DISMISSED FOR WANT

OF PROSECUTION SOLELY BECAUSE OF THE

ACTS OR OMISSIONS OF THE LITIGANT’S AT-

TORNEY, THEREBY DEPRIVING LITIGANT OF

AN ADJUDICATION OF HIS CLAIM ON THE

MERITS.

In general, the various circuit courts of appeals have

expressed a reluctance to approve the disposition of

cases by means of default orders or dismissals for want

of prosecution because such dispositions deprive the liti-

gants of an adjudication on the merits of their defenses

or claims. As will be discussed more fully below, five

of the circuits; namely, the first, third, fourth, fifth and

eighth, have clearly and consistently held that the sane-

tion of dismissal, when it is based upon the conduct of

counsel rather than the conduct of the party he repre-

sents, may be invoked only under extreme circumstances.

A review of the cases decided in these circuits reveals

that there are certain common equitable principles with

which the courts are concerned in passing upon the

appropriateness of the sanctions imposed. Reizakis v.

Loy, 490 F.2d 1132 (4th Cir. 1974), is illustrative of the

concern of the courts in .reviewing such cases. Therein,

as in the case at bar, the trial court had granted a dis-

missal for want of prosecution when the plaintiff sought

a continuance on the date of trial. The fourth circuit,

in reversing the judgment and remanding the case for

trial on the merits, stated as follows:

“Against the power to prevent delays must be

weighed the sound public policy of deciding cases

era poe

on their merits [Citations omitted.] Consequently,

dismissal ‘must be tempered by a careful exercise

of judicial discretion.’ [Citation omitted.] While the

propriety of dismissal ultimately turns or the facts

of each case, criteria for judging whether the dis-

cretion of the trial court has been soundly exercised

have been stated frequently. Rightfully, courts are

reluctant to punish a client for the behavior of his

lawyer. [Citation omitted.] Therefore, m situations

where a party is not responsible for the fault of his

attorney, dismissal may be invoked only in extreme

circumstances. [Citation omitted.] Indeed, it has

been observed that ‘[t]he decided cases, while noting

that dismissal is a discretionary matter, have gen-

erally permitted it only in the face of a clear record

of delay or contumacious conduct by the plaintiff.’

[Citation omitted.] Appellate courts frequently have

found abuse of discretion when trial courts failed

to apply sanctions less severe than dismissal. [Cita-

tions omitted.] And generally lack of prejudice to the

defendant, though not a bar to dismissal, is a factor

that must be considered in determining whether the

trial court exercised sound discretion.” (Emphasis

added.) 490 F.2d 1132, 1135.

Similarly, in McCargo v. Hedrick, 545 F.2d 393 (4th

Cir. 1976), the court, relying upon Reizakis v. Loy, 490

F.2d 1132, reversed a dismissal that had been entered

against the plaintiff and noted as follows:

“There is no indication in the record that McCargo

was personally responsible for her lawyer’s delay

in filing the third proposed pretrial order or that

she or her lawyer was deliberately engaging in dila-

tory practices. ... Nor is there any evidence that

the defendants were prejudiced by the delay... .

Finally, the district court’s order dismissing the

consolidated action does not indicate that any iess

fe oe

drastic sanctions were first considered.” 545 F.2d 393,

396.

The record herein is equally silent on the three factors

that the court in McCargo considered significant: (1) the

lack of involvement on the part of the litigant and the

absence of any intentional dilatory conduct on the part

of the attorney; (2) the absence of any showing of preju-

dice that the defendant would suffer as a result of the de-

lay; (3) the apparent failure on the part of the district

court judge to consider first a less drastic sanction than

dismissal.

In Durham vy. Florida East Coast Railway Company,

385 F.2d 366 (5th Cir. 1967) the court of appeals re-

versed a dismissal under rule 41 that had been entered

by the trial court. At the trial level, the plaintiff’s at-

torney appeared on the date the case was set for trial

and requested leave to amend his complaint, adding an

additional count that was based upon newly discovered

evidence. The trial court, noting that the case was the

only jury trial case on the docket for that week and that

there were 23 jurors in the courtroom ready to proceed,

denied the motion for leave to amend and dismissed the

case.

On review, the fifth circuit readily acknowledged that

the trial court did have authority to enter a dismissal but

stated as follows:

“The decided cases, while noting that dismissal is

a discretionary matter, have generally permitted it

only in the face of a clear record of delay or con-

tumacious conduct by the plaintiff. See Link v. Wa-

bash R. Co., 1962, 370 U.S. 626, 82 S.Ct. 1386, 8 L.

Ed.2d 734; Ockert v. Union Barge Line Corp., 3

Cir. 1951, 190 F.2d 303; Joseph v. Norton Co., 8.D.

N.Y. 1959, 24 F.R.D. 72, 2 Cir., 273 F.2d 65; and

a

other cases noted, 28 U.S.C.A. Rule 4!, esp. Note

53.” 385 F.2d 366, 368.

The Durham court then reviewed the record, a record

that is quite similar to the record herein, and concluded

that the actions of the plaintiff’s attorney were not suffi-

ciently “contumacious” to justify the dismissal of his

client’s case.

“The record here does not disclose the reason for

the failure of the plaintiff’s attorney to make a time-

ly motion to amend. The ‘new’ evidence, as the trial

judge noted, was evidence furnished by the plain-

tiff himself relating to a ‘defective coupling’. The

attorney may have been negligent in failing to dis-

cover the new evidence sooner than he did. He may

have been lacking in the consideration lawyers

should have for witnesses, opposing counsel, and the

trial judge—if he deliberately withheld until the

last minute his motion to amend. But there is no

evidence of his bad faith in the record. And we con-

sider that his negligence was insufficient to justify

dismissal of the complaint with prejudice... .

“The trial judge was of course concerned that

witnesses and attorneys had travelled long distances;

that jurors had been assembled for this case at Fort

Pierce (this was the only jury case scheduled at

that term); and that the plaintiff’s refusal to pro-

ceed inconvenienced all of these. But ‘Courts exist

to serve the parties, and not to serve themselves,

or to present a record with respect to dispatch of

business. * * * For the court to consider expedition

fc ‘its own sake “regardless” of the litigants is to em-

phasize secondary considerations over primary.’

Alamance Industries, Ine. v. Filene’s, 1 Cir. 1961, 291

F.2d 142, 146.” (Emphasis added.) 385 F.2d 366, 368.

Similarly, in Boazman v. Economics Laboratory, Inc.,

537 F.2d 210 (5th Cir. 1976), the court reversed a dis-

missal under rule 41(b) stating as follows:

oti

“ Dismissal . . . is such a severe sanction that it is

to be used only in extreme circumstances, . . . where

there is a clear record of delay or contumacious con-

duct,’ . . . and ‘where lesser sanctions would not serve

the best interests of justice.” 537 F.2d 210, 212.

In the third circuit decision of Dyotherm Corporation

v. Turbo Machine Company, 392 F.2d 146 (3d Cir. 1968)

the court of appeals reversed a dismissal for want of pro-

secution entered by the lower court judge and remanded

the case for a trial on the merits. The facts in Dyotherm

reflect a flagrant disregard on the part of the plaintiff’s

attorney for the court’s orders. On the trial date, which the

court had set five months previously, and which date was

more than three years after the suit was filed, the plain-

tiff’s attorney appeared and without an appropriate affi-

davit, requested a continuance because the president of

Dyotherm was ill. After first dismissing the case, the dis-

trict judge vacated the dismissal on the condition that the

plaintiff pay the defendant $1,185 in attorney’s fees.

The court also ordered the plaintiff to respond to the

defendant’s counterclaim within ten days. The defendant

moved to reinstate the dismissal when, after eight

months, the plaintiff had not paid the defendant’s at-

torney’s fees nor filed an answer to the counterclaim

The plaintiff’s attorney claimed that his client’s financial

condition prevented it from paying the attorney’s fees.

The district judge ordered the plaintiff to produce evi-

dence of his client’s financial condition and, when this

was not done within the required time, reinstated the

dismissal. In spite of this history of unexplained delays

and non-compliance with the court’s orders, the court of

appeals reversed the district court stating as follows:

“The tardiness of counsel, especially on October

5 [the trial date] showed disrespect, and failure to

=_

be prepared with other witnesses is inexcusable... .

But the price for these derelictions has been ex-

acted; counsel has been held in contempt and fined,

and Dyotherm is required to pay a_ substantial

amount to obtain relief from the order of dismissal.”

392 F.2d 146, 149.

Accoré, Marshall v. Sielaff, 492 F.2d 917 (3d Cir. 1974).

In Richman v. General Motors Corporation, 437 F.2d

196 (ist Cir. 1971), neither the plaintiff nor his attorney

appeared in court on the date set for trial. The complaint

had been filed 19 months previously. The court of appeals,

recognizing the harshness of dismissal and that there were

other sanctions that would have been more appropriate,

reversed the district court, stating as follows:

“Dismissal is a harsh sanction which should be re-

sorted to only in extreme cases. The court has a

broad panoply of lesser sanctions available to it.

Moreover, the power of the court to prevent undue

delays must be weighed against the policy of the law

favoring the disposition of cases on their merits.”

437 F.2d 196, 199.

The Court of Appeals for the Eighth Cireuit has fol-

lowed the first, third, fourth and fifth circuits in refusing

to allow dismissal, except under extreme circumstances,

when the basis for the dismissal is the dilatory conduct

of counsel. In Moore v. St. Lowis Music Supply Co.,

Inc., 589 F.2d 1191 (8th Cir. 1976), the district court had

dismissed the plaintiff’s case because of his attorney’s

failure to answer the trial call. The Court of Appeals for

the Eighth Circuit acknowledged the trial court’s legiti-

mate concern in the expeditious handling of its court call,

but ruled that this concern was not “sufficient to justify

the harsh consequences of forever denying a litigant his

day in court.” 539 F.2d 1191, 1193,

an thon

The court then went on to discuss these sometimes

conflicting considerations in language that is strikingly

applicable to the instant case.

“This process of balancing focuses in the main upon

the degree of egregious conduct which prompted the

order of dismissal and to a lesser extent upon the

adverse impact of such conduct upon both the de-

fendant and the administration of justice in the

District Court. [Citations omitted.] Where the

off ending conauct results from conflicting court

commitments of the attorney rather than the indif-

ference or dilatory tactics of the litigant himself,

there are other tools at the trial judge’s disposal

which do not impact so decisively wpon the innocent

litigant. [Citation omitted.] ‘Dismissal with prejudice

for failure to prosecute is “* * * a drastic sanction

which should be sparingly exercised * * *.”’ [Cita-

tion omitted.]”

7 * *

“While an attorney is an officer of the court and

has undertaken a solemn obligation to respect and

uphold its processes, it is also true that he is more

often than not the officer of many courts whose pro-

cesses are not coordinated and frequently compete

for the attorney’s attention and presence... .

“In this case, the attorney for Moore was over-

extended. Though he had numerous opportunities

to present his conflict problem to the District Court,

he did not do so. By failing to keep himself informed

about the progress of the docket and in not report-

ing to the District Court, the attorney inexcusably

caused available court time to go unused when such

court time was badly needed to meet the court’s case-

load. For this he may properly be subject to disci-

pline, but it does not follow in this case that his

client should be the one to feel the lash.” (Emphasis

added.) 539 F.2d 1191, 1193-1194.

See also M, S, v. Wermers, 557 F.2d 170 (8th Cir. 1977).

—

Therefore, the policy that has been followed in the

five circuits discussed above in reviewing cases such as

the instant case is (1) to favor adjudication on the mer-

its; (2) to avoid punishing a litigant for the acts or omis-

sions of his counsel; (3) to consider the amount of prej-

udice suffered by one party in imposing sanctions upon

the offending party; and (4) to apply sanctions less

severe than dismissal whenever possible. Indeed, a re-

view of prior seventh circuit decisions suggests that,

prior to that court’s decision herein, the seventh circuit

was also in accord with the five circuits that clearly

follow this policy. See Moreno v. Collins, 362 F.2d 176

(7th Cir. 1966); Sapiro v. Hartford Fire Insurance Com-

pany, 452 F.2d 215 (7th Cir. 1971), and Scarver v. Allen,

457 F.2d 308 (7th Cir. 1972).

By its decision herein, the seventh circuit has now

put itself directly in opposition to the five circuits dis-

cussed above, and it has aligned itself with the second

and ninth cireuits, which, in certain decisions, have in-

dicated a willingness to sustain dismissals even when

based solely upon the acts or omissions of a litigant’s

attorney. However, it is highly questionable whether

the second and ninth circuits would have approved

the actions of the district court in the instant case.

A review of the record herein fails to reveal “the ex-

treme circumstances” that the courts have required he-

fore imposing the harsh sanction of dismissal. Clearly,

the plaintiff’s trial attorney did not display the willful

or contumacious conduct that would have justified the

court’s imposition of this sanction. There is no suggestion

in the record, nor could there be, that plaintiff himself

was involved in the delay of this case or in the inability

of his attorney to be prepared for trial on the date set.

Under these circumstances, reviewing courts have con-

in Ch

sistently held that, if sanctions are to be entered, they

should not be so severe as to deprive the innocent liti-

gant of his day in court.

Finally, there is no indication in the record that the

defendant would have suffered any prejudice or harm

as a result of a 30-day delay in the trial of this case.

As a result of the 30-day continuance requested by plain-

tiff’s trial counsel, this case would have reached trial

within seven months of the date of filing—an admirable

record in the northern district of Illinois where the aver-

age median time from date of filing to trial is twenty-

four months and where ninety percent of the cases are

tried more than eight months after the filing date. As-

suming, arguendo, that the defendant would suffer some

prejudice or harm as a result of a 30-day continuance,

an alternative, less drastic sanction would nevertheless

have been equally effective.

If. THE SEVENTH CIRCUIT COURT OF APPEALS

ERRONEOUSLY MISAPPLIED THE CASES CITED

IN SUPPORT OF ITS DECISION, INCLUDING A

DECISION OF THIS COURT; THE UNDERLYING

FACTS IN THE CASES CITED ARE CLEARLY

ital ta FROM THE FACTS HERE-

The authorities previously cited by Petitioner stand

for the well-established proposition that when a litigant

is exposed to court sanctions solely because of the con-

duct of his counsel, the sanction should not be so harsh

as to deprive the litigant of his day in court. Further-

more, the cases cited by the Court of Appeals for the

*These figures are from a table of statistics obtained

from the Office of the Clerk of the United States District

Court for the Northern District of Illinois, The table is

attached as Appendix J. (A. 30a)

ee

Seventh Circuit in support of its decision stand for the

same proposition. The opinions in Link v. Wabash R. Co.,

370 U.S. 626 (1962), and Jameson v. DuComb, 275 F.2d

293 (7th Cir. 1960), countenance dismissal as an appro-

priate sanction only when, as in Jameson, there is direct

involvement on the part of the plaintiff himself or, as

in Link, there is a blatant and calculated pattern of

dilatory conduct over a period of years on the part of

counsel.

Jameson v. DuComb, 275 F.2d 293, holds that a party

will be held responsible for the consequences of his own

actions. In Jameson, the plaintiff, who knew of the Sep-

tember trial setting in April, nevertheless scheduled a

hunting trip to Alberta, Canada, and had his attorney

present the hunting trip as a basis for a motion to con-

tinue the trial. The seventh circuit affirmed the dismissal

stating as follows:

“The date for the trial was fixed many months in

advance at a pretrial conference and it was not un-

reasonable to require the plaintiff [not his counsel],

who started this litigation, to so arrange his affairs

that he would be present upon September 8, 1959,

at the time which the court had set aside for the trial

of his case.” 275 F.2d 293, 294.

The Petitioner takes no exception to the holding in

Jameson but submits that Jameson is not applicable to

the facts in the instant case. Herein there is no evidence of

any conduct on the part of the Petitioner that was in vio-

lation of any discovery request or court order. There is

nothing in the record to suggest that the Petitioner him-

self had not fully cooperated in the preparation of his

ease for trial or that he himself was unable or unwilling

to proceed to trial on the date set by the court. There-

fore, because the dismissal in the Jameson case was based

= en

upon the actions of the plaintiff himself, that decision

does not support the action taken by the seventh circuit

herein.

In Link v. Wabash R. Co., 370 U.S. 626, this

Court reviewed what had been the oldest civil case on the

docket in the northern district of Indiana. It was dis-

missed six years after its filing when the plaintiff’s attor-

ney deliberately failed to attend a pre-trial because he

was “preparing papers” to file in another action. Clearly,

the decision to affirm the dismissal was based on the his-

tory of repeated delays that were caused by the plaintiff

or his counsel. The Link case was replete with instances

in which the conduct of the plaintiff’s counsel, either

through failure to comply with discovery requests or other

dilatory activities, frustrated the trial court’s attempts

to move the case to a timely disposition.

Although the Link opinion does not refer to any act

on the part of the plaintiff himself that influenced the

court to affirm the dismissal, it would not have been un-

reasonable to assign some responsibility for the dismissal

to the plaintiff when he had allowed his attorney to de-

lay the disposition of the matter for over six years.

In a four to three decision (with two abstentions),

Justice Harlan, writing for the majority, expressly limited

the holding to the facts before him, which included an in-

excusable six-year delay: |

“We need not decide whether unexplained absence

from a pretrial conference would alone justify a dis-

missal with prejudice if the record showed no other

evidence of dilatoriness on the part of the plaintiff.

For the District Court in this case relied on all the

circumstances that were brought to its attention, in-

cluding the earlier delays. And while the Court of

Appeals did not expressly rest its judgment on peti-

= oo

tioner’s failure to prosecute, it nonetheless set out

the entire history of the case (including the state-

ment made by the district judge’s secretary that it

was ‘the oldest civil case on the court docket’), noted

that the District Court had considered the absence

of a pretrial conference in light of ‘the history of this

litigation’ and ‘of all the circumstances surrounding

eounsel’s action in the ease,’ [Citation omitted.] and

held that there was no abuse of discretion in dismiss-

ing the action ‘under the circumstances of this case.’

[Citation omitted.] This obviously amounts to no

broader a holding than that the failure to appear

at a pretrial conference may, in the context of other

evidence of delay, be considered by a District Court

as justifying a dismissal with prejudice.” 370 U.S.

626, 634-635.

The majority opinion in Link drew a lengthy and force-

ful dissent from Justice Black whose comments are pre-

cisely applicable to the equitable considerations presented

to this Court in the instant case:

“Tt is true that by its ruling today the Court finally

puts an end to this case and thus clears it from all

federal dockets. But in view of the fact that the merits

of the case have never been reached, I cannot believe

there should be too much rejoicing at this fact. The

end result of the procedures adopted here has been

that much time has been wasted and yet no justice

has been done. I find it highly regrettable that the

Court feels compelled to place its stamp of approval

upon such procedures.

“Tt may not be of much importance to anyone other

than the plaintiff here and his family whether this

ease is tried on its merits or not. To my mind, how-

ever, it is of very great importance to everyone in

this country that we do not establish the practice of

throwing litigants out of court without notice to them

solely because they are credulous enough to entrust

their cases to lawyers whose names are accredited

=~ =

as worthy and capable by their government. I fear

that this case is not likely to stand out in the future

as the best example of American justice.” 370 U.S.

626, 649.

It is respectfully submitted that the conduct of

Petitioner’s counsel herein who, at worst, erred in think-

ing he could obtain a continuance of the first and only

trial setting five and one-half months after the filing of

the action, should not, on the basis of Link or of any

reported case, serve as justification for depriving the

Petitioner of his day in court.

III. THE COURT OF APPEALS FOR THE SEVENTH

CIRCUIT HAS ERRED IN ASSUMING THAT THE

PETITIONER HAS A VIABLE ALTERNATIVE

REMEDY IN THE FORM OF A POSSIBLE

_— OF ACTION AGAINST HIS TRIAL COUN-

The Court of Appeals for the Seventh Circuit, rely-

ing upon a suggestion contained in Footnote 10 of Link

v. Wabash, 370 U.S. 626 (1962), asserts that the Peti-

tioner is not without a remedy in that he could file a mal-

practice action against his trial counsel. (A. 6a) It is

respectfully submitted that the burden of proof imposed

upon a plaintiff in a legal malpractice action is so onerous

that the likelihood of recovery in such an action would be

remote.

In Illinois, as in most states, in order for a plaintiff to

prevail against an attorney in a malpractice action, he

must first establish that the defendant violated the stan-

dard of care required of an attorney, and he must also

prove that, but for the negligence alleged, the plaintiff

would have been successful in the prosecution or defense

of the action in question. See Brown vy. Gitlin, 19 Il.

—19 —

App.3d 1018, 313 N.E.2d 180 (1st Dist. 1974); Kohler v.

Woollen, Brown & Hawkins, 15 Ull.App.3d 455, 304 N.E.

2d 677 (4th Dist. 1973); Trustees of Schools v. Schroeder,

2 Tll.App.3d 1009, 278 N.E.2d 431 (1st Dist. 1971); Dorf

v. Relles, 355 F.2d 488 (7th Cir. 1966); and Bonhiver v.

Rotenberg, Schwartzman & Richards, 461 F.2d 925 (7th

Cir. 1972).

With regard to establishing a violation of the standard

of care, it is clearly the law in Illinois, as in most

states, that the testimony of an expert is required to

establish the standard of care, the violation of which con-

stitutes the alleged malpractice. See Brown v. Gitlin, 19

Til. App. 3d 1018, and Dorf v. Relles, 355 F.2d 488 (7th

Cir. 1966). The most recent expression by the Illinois Su-

preme Court on this point appears in Walski v. Tiesenga,

72 Ill.2d 249, 381 N.E.2d 279 (1978). In Walski, the

Supreme Court of Illinois reaffirmed the long-stand-

ing Illinois rule that the testimony of an expert is re-

quired to establish malpractice.

With regard to the standard of proof required in mal-

practice cases, the courts have consistently treated

legal and medical malpractice cases alike. See Olson v.

North, 276 Ill.App. 457 (1934); Dorf v. Relles, 355 F.2d

488 (7th Cir. 1966). Thus, the Petitioner would be con-

fronted with the same standard of proof required by

the Walski v. Tiesenga, 72 Ill. 2d 249, opinion and would,

therefore, be required to produce the testimony of an

expert that his trial attorney in this cause was negligent

in not being prepared to commence trial five and one-

half months after the filing of what, according to the

record herein, was a complex contract action. Clearly, any

legal expert testifying in this regard would be required

to take cognizance of the statistics relating to the disposi-

_— em

tion of cases in the United States District Court for the

Northern District of Illinois. (A. 30a)

Obviously, it is uncertain whether an expert would

testify that an attorney’s failure to prepare a case such

as this for trial within five and one-half months of

filing constitutes a violation of the standard of care

imposed upon attorneys. However, assuming arguendo,

that the testimony of such an expert could be ob-

tained, Petitioner would then face the requirement that

could well prove to be insurmountable. As stated above,

the plaintiff in a malpractice action, once he has estab-

lished a violation of the standard of care, must show that

that violation or negligence was the proximate cause of

the damages that he has sustained. In other words, he

must prove that, but for the alleged negligence, he would

have been successful in the prosecution or defense of the

action in question. See Kohler v. Woollen, Brown &

Hawkins, 15 Tll.App.3d 455; Trustees of Schools v.

Schroeder, 2 Ill.App.3d 1009; and Bonhiver v. Roten-

berg, Schwarteman & Richards, 461 F.2d 925.

It is submitted that Petitioner would have much great-

er difficulty in meeting this second element of proof re-

quired in the prosecution of a malpractice action against

his attorney than he would face in the original action

against Sambo’s. Since Respondent Sambo’s would not

be a party in a malpractice action, Petitioner would be

deprived of many valuable discovery tools and would be

further frustrated at the trial level by being unable to

compel Sambo’s, a California corporation, to produce

documents or to compel the appearance of various em-

ployees of Sambo’s who reside out-of-state and whose tes-

timony would be required in order for Petitioner to

prove his case,

om

In summary, in a malpractice action under the facts

herein, Petitioner would be required to prove two cases

in one: the first against his trial counsel and the second

against the original defendant, Sambo’s Restaurant, Inc.

Moreover, he would be required to prove his action

against Sambo’s without having Sambo’s as a party.

In light of the heavy burden of proof that would con-

front the Petitioner, it is unrealistic to suggest that a

malpractice suit against his attorney is a viable alter-

native to his action against Sambo’s. Indeed, such a

suggestion is naive when one considers the effect it

would have it, as part of a national policy, federal courts

were urged to dismiss cases because of the dilatoriness of

the litigants’ attorneys on the false assumption that the

litigants’ rights were protected by the prospects of future

malpractice actions. It is respectfully submitted that this

Court, by it: decision in Link v. Wabash R. Co., 370 U.S.

626, did not intend to sanction the routine and callous

dismissal of a litigant’s cause of action solely because

of the acts or omissions of his attorney. By consider-

ing portions of the Link decision out of context and

applying them to the facts presented in the record herein,

the Court of Appeals for the Seventh Circuit not only

has improperly deprived the Petitioner of his right to

a disposition of his claim on the merits, but also has

established a policy, which, if approved by this Court,

would materially undermine the administration of justice

in the federal courts,

—

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

Francis D. Morrissey

130 East Randolph Drive

Chicago, Illinois 60601

312-861-2819

Attorney for Petitioner,

John D. Brazil.

Of Counsel:

Peter J. Mone

MicHaEL K. MurtavucH

130 East Randolph Drive

Chicago, Illinois 60601

312-861-8000

APPENDIX INDEX

PAGE

Appendix A—Opinion of the Court of Appeals for the

Seventh Circuit, September 11, 1978 nu. cssesseeeees la

Appendix B—Order of the Court of Appeals for the

Seventh Circuit, November 13, 1978 ......ccccssseeeeseeees Ta

Appendix C—Court Order of September 20, 1977 .. 8a

Appendix D—Court Order of October 7, 1977 ............ 9a

Appendix E—Motion for Continuance 0.0... 10a

Appendix F—Motion for Reconsideration ................... 13a

Appendix G—Transcript of Proceedings on July 21,

SET. ssetiniisdesncibiinbnsttaaadininiisalbiaaianeaniakiwnaiandbasvieaniiicninnintincnnnnntiiaian 18a

Appendix H—Transcript of Proceedings on Sep-

NE IE BEET isciildibticsssinicieshiennnccudiaddltciepuih ctehsoncdoebaghslepibtinannin 22a

Appendix I—Transcript of Proceedings on October

Rp MET Unioutenlecbinn sista hieiiiaenncitin aiipminntiiseniniialienmbaiabrciablats 26a

Appendix J—Statistical Data, Deposition of Cases,

U.S. District Court for the Northern District of

SIE | Slchallasinissbsicicpsanccenionsiuaitaaissastouieiidatagiinsdectaphnncicibtaensiabnaitea 30a

== jg —

APPENDIX A

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Chicago, Illinois 60604

(Argued May 24, 1978)

i September 11, 1978

Before

Hon. Tuomas E. Faircuitp, Chief Circuit Judge

Hon. Puiuie W. Tone, Circuit Judge

Hon. Roy W. Harper, Senior District Judge*

JOHN D. BRAZIL,

Plaintiff-Appellant,

vs.

SAMBO’S RESTAURANT, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 77C 1044,

Juuius J. Horrman, Senior Judge.

ORDER

This appeal arises out of a dismissal of plaintiff’s ac-

tion for want of prosecution pursuant to Rule 41(b) of

the Federal Rules of Civil Procedure. Plaintiff’s com-

plaint was filed on March 30, 1977, in the United States

District Court for the Northern District of Illinois. Plain-

tiff’s cause of action was based on an alleged breach of

contract arising out of a joint venture agreement en-

*Senior District Judge Roy W. Harper of the Eastern

and Western Districts of Missouri sitting by designation.

— on

tered into by plaintiff and defendant. Service of process

was made on the defendant on April 19, 1977. The defen-

dant answered on May 9, 1977. A status call was held

before Senior Judge Julius Hoffman on July 21, 1977,

at which time the case was at issue. Judge Hoffman set

the trial of plaintiff’s case for September 20, 1977. At that

time plaintiff indicated to the Court that it had discovery

to undertake and that September 20, 1977, was not a

realistic trial date. Judge Hoffman stated that the pur-

pose of discovery was not to delay trials. Plaintiffs ac-

quiesced in the setting.

From July 2ist to September 19th, the day before the

scheduled trial date, plaintiff did not give any indication

either to the defendant or to the Court that the trial would

not proceed as scheduled on September 20th. On Septem-

ber 19th, in response to a telephone call from the Clerk

of the District Court, plaintiff’s counsel advised the Clerk

that plaintiff would not be ready for trial. On the after-

noon of September 19th, plaintiff served defendant with

notices to take his deposition on October 10th, October

17th and October 26th. Plaintiff had not pursued any dis-

covery prior to that date.

The following morning, September 20th, the case was

called for trial. Defendant’s counsel stated that defendant

was ready for trial. However, the plaintiff did not appear

in court, nor was his trial counsel present. An associate

of plaintiff’s trial counsel answered the call and pre-

sented plaintiff’s motion for a continuance. Defendant’s

counsel objected to the continuance. The district court

denied the motion for a continuance and asked the mar-

shal to bring in a selection of veniremen. The associate

counsel then stated that he knew nothing about the case

and that there was no way plaintiff could proceed to trial.

The Court then ordered the case dismissed for want of

prosecution.

On October 7, 1977, plaintiff’s counsel presented a mo-

tion to reconsider the order of dismissal with a support-

ing affidavit in which counsel listed the various actions

he had taken in this litigation. Apart from a partial settle-

<= >

—

ment, which had been agreed to prior to the status eall,

counsel’s activity consisted primarily of communications

with the client with respect to gathering facts. No reason

was given why plaintiff waited until the day of trial be-

fore apprising the district judge that he was not pre-

pared for trial. The Court denied the plaintiff’s motion

to reconsider.

The inherent authority of a Federal trial court to dis-

miss a plaintiff’s action with prejudice because of his

failure to prosecute is expressly recognized by Rule 41(b),

which provides:

“Involuntary Dismissal: Effect Thereof. For fail-

ure of the plaintiff to prosecute or to comply with

these rules or any order of court, a defendant may

move for dismissal of an action or of any claim

against him. * * * Unless the court in its order for

dismissal otherwise specifies, a dismissal under this

subdivision and any dismissal not provided for in

this rule, other than a dismissal for lack of jurisdic-

tion or for improper venue, operates as an adjudi-

cation upon the merits.”

It is well established that there is no precise rule which

sets forth the circumstances that are necessary to sus-

tain a dismissal for failure to prosecute. Sandee Manu-

facturing Co. v. Rohm & Haas Co., 298 F. 2d 41 (7th Cir.

1962). Rather, each case must be examined “with regard

to its own peculiar procedural history and the situation

at the time of dismissal.” Sandee Manufacturing Co. v.

Rohm & Haas Co., supra at 43. When, as in this case, the

trial court has exercised its discretion, and dismissed for

want of prosecution, the question upon appeal is whether

the trial court has abused its discretion in dismissing the

plaintiff’s complaint. Link v. Wabash Ratlroad Co., 370

U.S. 626 (1962).

In the present case, the plaintiff has cited no facts to

sustain a charge of abuse of discretion on the part of the

trial court. As a reason for his not being prepared on the

trial date, plaintiff’s counsel stated that he did not have

=

sufficient time to complete discovery, because of the com-

plexity of the case and the fact that other office matters

(a criminal appellate case) had restricted the amount of

time in which he was able to work on the case. However,

to accept this argument would be to ignore the facts of

the case. The plaintiff had over five and one-half months

in which to undertake discovery. However, from the

filing of the complaint on March 30, 1977, until the sched-

uled trial date on September 20, 1977, no discovery what-

soever was undertaken. It was not until the day before

trial, September 19, 1977, that plaintiff served defendant

with notices of deposition, which were scheduled for Oc-

tober 10th, October 17th, and finally October 26th. Un-

der these facts, we do not believe that a failure to com-

plete discovery is an accurate justification for the failure

of plaintiff’s counsel to meet the scheduled trial date.

We believe that the actions on the part of plaintiff’s

counsel evidence an unqualified indifference to the Septem-

ber 20th court commitment. First of all, despite having

had two months’ notice of the scheduled trial date,

plaintiff’s counsel waited until the day before trial to

‘fapprise’’ the Court of his not being prepared. The un-

timeliness of the notice is compounded by the fact that

the manner of plaintiff’s counsel of apprising the Court

was not by way of an official written request; rather it

was over the telephone, in response to a call from the

Clerk, that plaintiff’s counsel informed the clerk that

he would not be ready for trial. Secondly, on the date set

for trial, September 20, 1977, plaintiff’s trial counsel

was in State Court for the trial of another lawsuit.

Certainly the fact that plaintiff’s trial counsel was not

going to be available for trial on the 20th of September

must have been apparent well in advance of the scheduled

date. Nevertheless, plaintiff’s counsel made no effort

to inform the court of such fact. The flagrant disregard

by plaintiff’s counsel of the scheduled trial date is fur-

ther evidenced by his affidavit in support of his motion

to disiniss, dated September 20, 1977, where he states,

‘*Unless these depositions reveal the need for additional

discovery, affiant anticipates being prepared to proceed

ies.

with the trial of this cause around the middle of Novem-

ber, 1977.’’

Based upon the aforementioned facts, we must con-

clude the following: One, that plaintiff’s counsel, sub-

sequent to the status call, on July 21, 1977, decided uni-

laterally that he was not going to proceed to trial on

the Court’s designated date; and two, that the conduct

of plaintiff’s counsel manifests an unqualified disregard

for the Court’s docket and its internal procedures. Un-

der these circumstances we cannot say that the trial

court abused its discretion in dismissing the plaintiff’s

case for want of prosecution.

Plaintiff claims that only a pattern of continuous dis-

regard of court orders to proceed and a long history of

delay over a period of years have been held to warrant a

dismissal of one’s cause of action. We cannot. agree

with this argument. In the case of Jameson v. Ducomb, 275

F. 2d 293 (7th Cir. 1960), the parties were given ap-

proximately four months’ notice of the trial date. On

the date set for trial, the plaintiff filed a motion for a

continuance in which he averred, in effect, that he had

been unable to take the defendant’s deposition and that

plaintiff himself would be unable to be present for trial

because ‘‘he is engaged in guiding certain big game

hunting parties * * * in the Province of Alberta.’’ Not-

withstanding the fact that the plaintiff had engaged in

no pretrial misconduct, the court denied the plaintiff’s

motion and entered an order dismissing the case tor want

of prosecution. On appeal, this court affirmed the judg-

ment of the district court, stating:

‘*The date for the trial was fixed many months

in advance at a pretrial conference and it was not

unreasonable to require plaintiff, who started this

litigation, to so arrange his affairs that he would

be present upon September 8, 1959, at the time which

the court had set aside for the trial of his case.’’

It is also argued that the plaintiff should not be penal-

ized by having his action dismissed with prejudice where

=

the delay or lack of diligence is the fault of counsel.

In this matter, we cannot concur with plaintiff. This

issue was discussed by the Supreme Court in footnote

10 of its opinion in Link v. Wabash Railroad Company,

supra at 634:

‘c@ @ * And if an attorney’s conduct falls sub-

stantially below what is reasonable under the cir-

cumstances, the client’s remedy is against the at-

torney in a suit for malpractice. But keeping this

suit alive merely because plaintiff should not be

penalized for the omissions of his own attorney would

be visiting the sins of plaintiff’s lawyer upon the

defendant.’’

In the present case, plaintiff’s counsel had every op-

portunity to either prepare himself for the scheduled trial

date, or make timely arrangements for the action to be

continued. Nevertheless, plaintiff’s counsel chose to do

neither. We cannot justify the plaintiff’s not being

penalized for the omissions of his counsel, where non-

punishment of the plaintiff would result in the burden

being borne by the defendant. As pointed out by the

Court in Link, supra, the plaintiff is not without a remedy.

For the above stated reasons we affirm the judgment

of the district court.

== 7g am

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

November 13, 1978

Before

Hon. Tuomas E. Farrcuinp, Chief Judge

Hon. Pumiw W. Tones, Circuit Judge

Hon. Roy W. Harper, Senior District Judge*

JOHN D. BRAZIL,

Plaintiff-Appellant,

No. 77-2231 Vs.

SAMBO’S RESTAURANTS, INC.,

Defendant-Appellee.

Appeal from ihe United States District Court for the

Northern District of Illinois, Eastern Division.

No. 77-C-1044

Juuius J. Horrman, Judge.

ORDER

On consideration of the petition for rehearing filed in

the above-entitled cause by plaintiff-appellant, all cif the

judges on the original panel having voted to DENY the

same,

IT IS HEREBY ORDERED that the aforesaid peti-

tion for rehearing be, and the same is hereby, DENIED.

*Senior District Judge Roy W. Harper of the Eastern

and Western Districts of Missouri is sitting by designa-

tion,

Ss

—— Sg,

APPENDIX C

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

Name of Presiding Judge, Honorable Julius Hoffman

Cause No. 77 C 1044 Date September 20, 1977

Title of Cause

Brazil v. Sambo’s Restaurants, Ince.

Brief Statement of Motion

Plaintiff’s Motion To Reset The Trial Date

Names and Addresses of moving counsel

Robert E. Senechalle

Plunkett, Nisen, Elliott & Meier

One North La Salle Street

Chicago, Illinois

Representing

John D. Brazil, Plaintiff

Names and Addresses of other counsel

entitled to notice and names of parties

they represent.

James M. Goff, Sonnenschein, Carlin,

Nath & Rosenthal

8000 Sears Tower

Chicago, Illinois .60606

Sambo’s Restaurants, Inc.

Plaintiff’s motion to reset the trial date is denied.

Cause dismissed for want of prosecution.

/s/ Hoffman, SJ.

Sep 20 1977

—= Oe,

APPENDIX D

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

Name of Presiding Judge, Honorable Hoffman

Cause No. 77 C 1044 Date 10-7-77

Title of Cause

John D. Brazil v.

Sambo’s Restaurants, Inc.

Brief Statement of Motion

Reconsider Order Of 9-20-77 Dismissing Case For

Want of Prosecution.

Names and Addresses of moving counsel

Robert E. Senechalle, Jr.

One N. LaSalle, Chicago

Representing

Plaintiff

Names and Addresses of other counsel

entitled to notice and names of parties

they represent.

Sonnenschein, Carlin, Nath & Rosenthal

Sears Tower, Suite 8000

Chicago, Illinois

Plaintiff’s motion for reconsideration of order of

September 20, 1977 dismissing case for want of

prosecution is denied.

/s/ Hoffman, SJ.

Oct 7 1977

—

APPENDIX E

Sanaa

IN THE UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

JOHN D. BRAZIL,

Plaintiff,

vs.

SAMBO’S RESTAURANTS, INC.,

Defendant.

No. 77 C 1044

Plaintiff Demands Trial by Jury

MOTION FOR A CONTINUANCE

Now comes the plaintiff, John D. Brazil, and moves

this Honorable Court that trial of this matter previously

set for September 20, 1977, be continued for a period of

60 days so that plaintiff can complete his discovery and

properly prepare this matter for trial. In support of this

Motion, plaintiff attaches the Affidavit of his attorney,

Robert E. Senechalle, Jr., as Exhibit A.

Wherefore, plaintiff prays that the trial of this matter

be continued for a period of not less than 60 days so that

plaintiff may complete his discovery.

/s/ Plunkett, Nisen, Elliott & Meier

Attorneys for Plaintiff

Robert E. Senechalle, Jr.

Plunkett, Nisen, Elliott & Meier

Attorneys for Plaintiff

One North LaSalle Street

Chicago, Illinois 60602

346-7800

i ent

— lila —

AFFIDAVIT

Robert E. Senechalle, Jr., after first being duly sworn

on oath deposes and states that he is the attorney of rec-

ord for John D. Brazil in the above referenced matter

and that he makes the following statement in support

of the Motion of John D. Brazil for a continuance of the

trial of this case.

1. That Plaintiff’s lawsuit was filed on March 30,

1977. The answer of the Defendant was filed on May 9,

1977. A status report was held on July 21, 1977.

2. Since the date of the status report in this matter,

Affiant has met with the Plaintiff and has had several

telephone conversations with Plaintiff regarding the facts

of this case. Affiant has, pursuant to his request, recently

received a detailed statement of relevant facts in this case

from Plaintiff. Affiant is informed by the Plaintiff that

additional statements will be forthcoming shortly from

several of Plaintiff’s witnesses. These factual summaries

and witness statements are necessary to assist Affiant in

the conduct of discovery in this case. Plaintiff has sched-

uled Defendant’s deposition in this matter for October

10, October 17 and October 26, 1977. These Notices of

Deposition are also accompanied by requests for produc-

tion of documents. Unless these depositions reveal the

need for additional discovery, Affiant anticipates being

prepared to proceed with the trial of this cause around

the middle of November, 1977.

3. Since the date of the status report in this matter,

Affiant has arranged for the payment by Defendant of

certain monies owed by it to Plaintiff. Affiant also com-

pleted the settlement of a related lawsuit involving Plain-

tiff’s partnership with the Defendant. That suit is en-

titled Portage National Bank v. John D. Brazil, Case No.

76 PSC 2657, in the Porter Superior Court, Porter Coun-

ty, Indiana.

4. In addition to the above, (as well as Affiant’s vaca-

tion in August), other office matters, including the prep-

aration of a Brief for the Appellate Court, Third Dis-

— 19a —

trict in the case of People of the State of Illinois v. James

Boucher, Case No. 76-353 which is due to be filed on Oc-

tober 7, 1977, have prevented Plaintiff from completing

discovery in this matter in time for trial on September

20, 1977.

5. The discovery scheduled in this case for October,

1977, is essential to the full presentation of the issues al-

leged in Plaintiff’s Complaint.

6. Affiant further states that he has been as diligent

in the prosecution of Plaintiff’s case as has been reasonably

possible in light of Affiant’s other professional responsi-

bilities. Plaintiff has requested no other continuances.

7. Affiant is scheduled to be engaged in trial in Niles,

Illinois at 9:30 a.m. on September 20, 1977, in the case of

People v. Joel Dosik, Case No. 77-3-004065. Otherwise

Affiant would have been present in open Court on Sep-

tember 20, 1977, to present the above related matters per-

sonally to the Court.

Further Affiant States Not.

/s/ Robert E. Senechalle, Jr.

Robert E. Senechalle, Jr.

Subscribed And Sworn

To Before Me This ........

Day Of September, 1977.

Notary Public

a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

For The Northern District Of Illinois

Eastern Division

JOHN D. BRAZIL,

Plaintiff,

Vs,

SAMBO’S RESTAURANTS, INC.,

Defendant.

No. 77 C 1044

PLAINTIFF’S MOTION FOR

RECONSIDERATION

Now Comes the Plaintiff, John D. Brazil, pursuant to

Rule 60 (b) of the Federal Rules of Civil Procedure and

moves this Honorable Court that the order of dismissal

for want of prosecution entered on September 20, 1977,

be vacated and that plaintiff’s cause reinstated and set

for trial and in support thereof states as follows:

1. That plaintiff’s complaint in this matter was filed

on March 30, 1977. Defendant’s appearance and answer

were filed on May 9, 1977. This case was dismissed for

want of prosecution on September 20, 1977.

2. Plaintiff had not failed to prosecute this case but

was in the process of preparing the case for trial and

had discovery depositions set for October 10th, 17th, and

26th, 1977. See the Affidavit of Robert E. Senechalle,

Jr. attached hereto as Exhibit A and made a part here-

of.

"on

3. Plaintiff will be ready to try this case within 30

days of this date if the Court vacates its previous order

of dismissal.

4. Rule 21 (a) of the Rules of the United States Dis-

trict Court for the Northern District of Illinois provides

that ‘‘cases which have been inactive for more than six

months may be dismissed for want of ,rosecution.’’ Km-

phasis added This case had not been inactive for more

than six months and in fact this case was less than six

months old on September 20, 1977 when it was dismissed

for want of prosecution.

5. Dismissal in this case is too harsh a sanction for

a case less than five months old when plaintiff was, at the

time of the dismissal, in the process of getting the case

ready for trial. See Exhibit A attached hereto. As the

United States Court of Appeals, Fourth Circuit, stated

in Reizgakis v. Loy, 490 F. 2d 1132 (1974) ‘‘against the

power to prevent delays must be weighed the sound public

policy of deciding cases on their own merits. (Citation

omitted) Consequently, dismissal must be tempered by

a careful exercise of judicial discretion.’’ 490 F. 2d 1135.

WHEREFORE, Plaintiff prays that this Court recon-

sider its order of September 20, 1977, and vacate the

order dismissing this case for want of prosecution; ac-

celerate discovery in this matter and set the case for

trial 30 days hence,

/8/ Robert E. Senechalle, Jr.

Robert E. Senechalle, Jr.

Attorney for Plaintiff

Robert E. Senechalle, Jr.

Plunkett, Nisen, Elliott & Meier

Attorneys for Plaintiff

One North LaSalle Street - Suite 2300

Chicago, Illinois 60602

346-7800

Ee

Oe Aen Serene tones

— 15a —

State of Illinois )

) SS.

County of Cook )

IN THE UNITED STATES DISTRICT COURT

For The Northern District Of Illinois

Eastern Division

JOHN D. BRAZIL,

Plaintiff,

vs.

SAMBO’S RESTAURANTS, INC.,

Defendant.

No. 77 C 1044

AFFIDAVIT IN SUPPORT OF PLAINTIFF’S

MOTION FOR RECONSIDERATION

Robert E. Senechalle, Jr., after first being duly sworn,

deposes and states as follows:

1. Affiant is the attorney of record for plaintiff.

2. This action is a suit for breach of contract growing

out of plaintiff’s relationship, for a period in excess of

five years, with the defendant as a partner, manager and

investor in the defendant company. Plaintiff’s complaint

alleges actual damages in excess of $750,000.

3. Plaintiff filed this lawsuit on March 30, 1977. Plain-

tiff promptly initiated service of summons on defen-

dant. Defendant answered the complaint on May 9,

1977.

4. A status call was held in this case on July 21,

1977. On that date the court set a trial date of Septem-

ber 20, 1977. On July 21, 1977, Affiant told opposing

counsel that it was unlikely that plaintiff could prepare

this case for trial by September 20, 1977.

=

5. On September 20, 1977, Affiant filed a motion for

continuance of this cause so that he could complete plain-

tiff’s discovery. Three depositions had been set by plain-

tiff for October, 1977. On September 20, 1977, Affiant

was engaged in a criminal case in the Circuit Court of

Cook County, in the Niles branch court. Affiant’s as-

sociate Ronald L. Lipinski presented the motion for con-

tinuance. The motion was denied and plaintiff’s case

was dismissed for want of prosecution.

6. Between the time of filing defendant’s appearance

and answer in this case in May, 1977 and the dismissal

for want of prosecution on September 20, 1977, Affiant

communicated by telephone and corresponded with defen-

dant’s attorney regarding this case. As a result of those

communications a portion of this matter was settled and

the proceeds were paid by defendant to plaintiff in August,

1977.

7. In August, 1977, Affiant received a detailed summary

of the facts of this case from plaintiff which Affiant had

requested in order to assist affiant in the depositions

which Affiant scheduled for October. During this period

Affiant also investigated the new matters which were

raised by defendant in paragraph 3 of its answer to

Count I.

8. Also during this period Affiant settled a case with

the Portage National Bank which related directly to the

case at bar and which was settled as a result of the

monies obtained by piaintiff from the settlement of the

portion of this case referred to above.

9. Plaintiff is a nonresident of Illinois, currently re-

siding in Las Vegas, Nevada Thus, Affiant has not had

ready access to plaintiff in the gathering of the facts of

this case and im the preparation of the case for trial.

10. Affiant has been active in the preparation of this

case for trial between the time of its filing on March 30,

1977, and its dismissal for want of prosecution on Septem-

ber 20, 1977.

—17a—

11. Affiant represents to this Court that if this case

is reinstated and an accelerated discovery schedule is set

by this Court, Affiant will be prepared to try this case

within 30 days of the date that this case is reinstated.

FURTHER AFFIANT STATES NOT.

/s/ Robert E. Senechalle, Jr.

Subscribed and Sworn to before

me this 6th day of October, 1977.

/s/ Phyllis June Downey Stebbings

Notary Public

=—

APPENDIX G

In THE

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Kastern Division

JOHN D. BRAZIL,

Plaintiff,

vs.

SAMBO’S RESTAURANTS, INC.,

Defendant.

No. 77 C 1044

TRANSCRIPT OF PROCEEDINGS

had in the above-entitled cause before the Hon. Julius

J. Hoffman, one of the Judges of said Court, in his court-

room in the United States Courthouse, Chicago, Illinois,

on Thursday, July 21, 1977, at the hour of 10:00 o’clock

a.m.

Appearances:

Messrs. Plunkett, Nisen, Elliot and Meier

One North LaSalle Street,

Chicago, Illinois

By: Mr. Robert Senethalle,

appeared on behalf of the plaintiff;

Messrs. Sonnenschein, Carlin, Nath and Rosenthal

8000 Sears Tower,

Chicago, Illinois 60606

By: Mr. Gerald Sherman,

appeared on behalf of the defendant.

Wider ies.

— 19a —

The Clerk: 77 C 1044. John D. Brazil v. Sambo’s

Restaurants, Inc., status report.

Mr. Senechalle: Good morning, your Honor. Robert

Senechalle from Plunkett, Nisen, Elliot and Meier, for

the plaintiff.

Mr. Sherman: Good morning, your Honor. Gerald Sher-

man from Sonnenschein, representing the defendant,

Sambo’s Restaurants.

Your Honor, this is Mr. Goff’s case, but Mr. Goff is

in New York today and he asked me to step up for him.

The Court: I didn’t hear you.

Mr. Sherman: I said this is Mr. Goff’s case, but Mr.

Goff is in New York and he asked if I could come over

here for him this morning.

The Court: Do you represent the plaintiff?

Mr. Senechalle: Yes, Judge.

The Court: Would you settle for $765,000?

Mr. Senechalle: He is quite serious, your Honor.

The Court: Just knock off that odd amount there?

Mr. Senechalle: I think that could be done.

The Court: Do you presume to enter into that agree-

ment without specific authority from your client pro-

vided I can persuade counsel for the—

Mr. Senechalle: I would take that risk, yes, Judge.

The Court: Well, let’s see what the posture of the

case is.

Mr. Senechalle: Judge, as you can see, this is a single

plaintiff versus a single defendant and the defendant has

appeared and answered, and we are in the process of

working out payment of a portion of the moneys which

the defendant agrees are owed pending the outcome of

the litigation. And we are in the process of doing that

now.

— 20a —

The Court: In the process of doing what?

Mr. Senechalle: Of working out the payment of a por-

tion of the moneys allegedly due in the complaint.

Mr. Sherman: Your Honor, Sambo’s Restaurants ten-

dered to the plaintiff certain funds as part of the ter-

mination of his employment. Those funds were returned

to Sambo’s. Plaintiff has now asked for those funds

again, and we are willing to pay them, as we admit we

owe them. And so I have sent off a letter to California

to get those funds for the plaintiff.

As to the $765,000, we have denied that we owe that

money and we stand ready for trial, your Honor.

The Court: I am glad to hear that. I will set this case

for trial. It appears, from the record, that the case is

at issue. I will set it for trial on September 20th at 10:00

o’clock.

Mr. Sherman: Thank you, your Honor.

Mr. Senechalle: Judge, I doubt frankly, if that is a

realistic trial date. We have some discovery which we

need to take in the form of depositions.

The Court: The discovery was not promulgated by

the United States Supreme Court to delay trials. They

were placed of record to expedite the disposition of bus-

iness. It is your privilege to proceed with discovery im-

mediately after a complaint is filed.

I am here to help the Judges dispose of the business

of the Court. They do not need an old Judge to continue

eases. I am here to try to assist the Judges in trying

cases as a so-called Senior Judge. And if your client has

all this money coming, you ought to—we are dealing with

a huge amount of money here, allegedly—well over a mil-

lion dollars.

ee 6 NN oe as NL nN Se —

Ls Sethi oe Reece re. AO NS tale

‘° adi Senile

=

Mr. Senechalle: We intend to expedite it also, Judge.

The Court: So you get some proof in shape by the

date indicated.

Mr. Clerk, the cause will be set for trial, as I said, on

September 20th at 10:00 o’clock.

Mr. Sherman: Thank you, your Honor.

Mr. Senechalle: Thank you, your Honor.

CERTIFICATE

I, John M. Unzicker, do hereby certify that the fore-

going is a true, accurate and a complete transcript of the

proceedings had in the above-entitled cause before the

Hon. Julius J. Hoffman, one of the Judges of said Court,

in this courtroom at Chicago, Illinois, on Thursday, July

21, 1977.

/s/ John M. Unzicker

United States District Court

Northern District of Illinois

Reported by:

Gwendolyn S. Capers, CSR.

aa

In THE

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

JOHN D. BRAZIL,

Plaintiff,

vs.

SAMBO’S RESTAURANTS, INC.,

Defendant.

No. 77 C 1044

TRANSCRIPT OF PROCEEDINGS

had in the above-entitled cause before the Hon. Julius J.

Hoffman, one of the Judges of said Court, in his court-

room in the United States Courthouse, Chicago, Illinois,

on Tuesday, September 20, 1977, at the hour of 10:00

o’clock a.m.

Appearances:

Messrs. Plunkett, Nisen, Elliott and Meier

One North LaSalle Street

Chicago, Illinois

By: Mr. Ronald Lipinski,

appeared on behalf of the plaintiff;

Messrs. Sonnenschein, Carlin, Nath and Rosenthal

8000 Sears Tower

Chicago, Illinois 60606

By: Mr. James M. Goff,

Appeared on behalf of the defendant.

ee ae ene. eee ee ee ee re

— 8a —

The Clerk: 77 C 1044, John D: Brazil v. Sambo’s Res-

taurants, Inc., cause called for trial.

Mr. Goff: Good morning, your Honor, the defendant

is ready for trial.

Mr. Lipinski: Good morning, your Honor, my name

is Ronald Lipinski on behalf of the plaintiff. I would

like to present a petition for a continuance of the trial

date for a short period. We have some depositions sched-

uled for next month. We feel that—

The Court: Depositions set?

Mr. Lipinski: Yes.

Mr. Goff: I would object to this continuance, your

Honor .

The Court: I will look at the motion for a contin-

uance. This case was set two months ago—about two

months ago, was it not?

The Clerk: Two months to the date, your Honor.

Mr. Goff: I was not here on that occasion, your Hon-

or, but I understand Mr. Hirshman—

The Court: Someone from your office—

Mr. Goff: That is correct. Your Honor, at that point

the plaintiff then said he had to take discovery and your

Honor told him that he should accomplish it within the

next two months because today was tie trial date.

The Court: That is right. If there is one single thing

the Chief Justice of the United States has been urging

in his speeches and papers, it is the wrongful clogging

of the calendars by reason of taking too much discovery—

discovery that does not discover and delay in discovery.

The discovery provisions in the Federal Rules were

designed to expedite the disposition of the business of

the Court, not delay them. I will look at your affidavit.

— %a —

In the Opinion of the Court, the document styled, ‘‘A

Motion For a Continuance,’’ does not as a matter of law

state a valid ground. The motion for a continuance will

be denied.

Mr. Marshal, will you bring in a selection of venire-

men? I observe a jury has been demanded here.

Mr. Lipinski: Your Honor, I feel that this is not un-

reasonable. We got the case as a "77 case.

The Court: Let me tell you—are you Mr. Senechalle?

Mr. Lipinski: No, I am not. He is on trial on a crim-

inal matter.

The Court: Will you identify yourself for the record?

Mr. Lipinski: I am Ronald Lipinski, L-i-p-i-n-s-k-i-.

The Court: Mr. Lipinski, I am senior Judge here. I

do not know whether you know what that means. I am

volunteering my services. About 10 years I could have

retired at full pay. No, they do not need a man of my

experience to sit up here and continue cases.

We get this sort of thing, and it is clogging our calen-

dars, just as the Chief Justice has pointed out in vari-

ous speeches and continues to do that from time to time.

I am obligated to try this case. I have volunteered for

this service and have continued it for a long time. I hope

I will be able to do it for a long time in the future.

When we set these cases at a status call, we consult

the convenience of the lawyers. We put that down for

two months after that date. I think that is a reasonable

setting. I will let my ruling stand.

Mr. Lipinski: Your Honor, at this point there is no

way that we could proceed to trial. I know absolutely

nothing about this case.

Mr: Goff: I might note, if I may for the record, your

Honor, that these notices of deposition referred to in this

motion were served on us yesterday afternoon.

tt tae RP

P= att CGD ne at NINE Nal lh a Bn SOE a ew § 1 BOE init Becta nt a Mails PR ab Tay a me Me

—_

The Court: If there is no way that you can proceed

to trial the Court has no alternative other than to dis-

miss the case for want of prosecution. That will be the

order, Mr. Clerk. Call your next one.

The Clerk: That is it, you Honor.

The Court: The Court will be in recess, Mr. Mar-

shal, until 2:00 o’clock this afternoon.

CERTIFICATE

I, John M. Unzicker, do hereby certify that the fore-

going is a true, accurate and complete transcript of the

proceedings had in the above-entitled cause before the

Hon. Julius J. Hoffman, one of the Judges of said Court,

in his courtroom at Chicago, Illinois, on September 20,

1977.

/s/ Joan M. Unzicker

Official Court Reporter

United States District Court

Northern District of Illinois

— %a —

APPENDIX I

In THE

UNITED STATES DISTRICT COURT

Northern District Of Illinois

Eastern Division

JOHN D. BRAZIL,

Plaintiff,

VS.

SAMBO’S RESTAURANTS, INC.,

Defendant.

No. 77 C 1044

TRANSCRIPT OF PROCEEDINGS

had in the above-entitled cause before the Hon. Julius J.

Hoffman, one of the Judges of said Court, in his court-

room in the United States Courthouse, Chicago, Illinois,

on Friday, October 7, 1977, at the hour of 10:00 o’clock

a.m.

Appearances :

Messrs. Plunkett, Nisen, Elliot and Meier

One North LaSalle Street

Chicago, Illinois

By: Mr. Robert E. Senechalle, Jr.,

appeared on behalf of the plaintiff;

Messrs. Sonnenschein, Carlin, Nath and Rosenthal

8000 Sears Towers

Chicago, Illinois 60606

By: Mr. James M. Goff,

appeared on behalf of the defendant,

;

:

re Ne Pm SY ee

eee

iii Da iciia

— Ya —

The Clerk: 77 C 1044, John D. Brazil v. Sambo’s Res-

taurants, Inc., motion to reconsider order dismissing case

for want of prosecution.

Mr. Senechalle: Good morning, your Honor, my name

is Robert Senechalle, I am with the firm of Plunkett,

Nisen, Elliot and Meier, for the plaintiff.

Judge, this is my motion requesting that the Court re-

consider its order of September 20 dismissing plaintiff’s

case for want of prosecution. I have filed a motion and

an affidavit in support of the motion, Judge.

The Court: Do you want to be heard?

Mr. Goff: If it please the Court, we oppose the mo-

tion as we opposed the motion to continue on the 21st

of September. If your Honor is disposed to take this mo-

tion under Rule 13, we will be happy to file a brief and

an affidavit.

The Court: No, I think I can dispose of this motion

now. Have you finished your prosecution?

Mr. Senechalle: Yes, Judge, I have. I will rely on the

motion.

The Court: The plaintiff as moved pursuant to Rule

60(b) of the Court to reconsider its order of September

20, 1977 dismissing this cause for want of prosecution.

In support of the motion the plaintiff states that he

had not failed to prosecute this case, but was in the proc-

ess of preparing the case for trial at the time the order

was entered stating that depositions were set for October

of this year. The plaintiff further states, and I quote

his words, counsel’s words, ‘‘dismissal in this case is

too harsh a sanction for a case less than five months old

when plaintiff was, at the time of dismissal, in the proc-

ess of getting the case ready for trial.’’

The plaintiff fails to point out several pertinent fac-

tors in his motion. The case was set for trial on July

es

21, 1977 and the plaintiff had two full months to pre-

pare his case for trial. However, the docket reveals that

plaintiff did little in the way of filing discovery mater-

ials during the time the cause was pending on the trial

calendar.

Furthermore, the Court did not receive official notice

that the plaintiff was not ready for trial until the case

actually was called for trial. This does not indicate merely

a violation of the Court’s rule relating to notice, but dem-

onstrates the lack of concern for the Court and the Clerk’s

office.

The Clerk of the Court had made available prospec-

tive veniremen and the Court had only this case assigned

for trial on the day in question. The showing made by

the plaintiff is that he was not ready for trial because

he had not completed his discovery. There has not been

adequate showing here.

Mr. Clerk, the motion of the plaintiff to reconsider

the Court’s order dismissing this case for want of pros-

ecution will be denied.

Mr. Senechalle: Judge, might I state just one thing

for the record, and that is that the day before this case

was dismissed for want of prosecution on September 19

I did talk over the telephone with your Clerk, Mr. Ger-

win, and informed him that I would not be ready for trial

on the 20th and also informed opposing counsel so that—

The Court: Let me interrupt you, if I may, to say

that we do not conduct Court business here on the tele-

phone. All I know is that I came out here ready for trial.

Veniremen were selected. Counsel for the other side was

ready. We cannot operate a branch of the United States

District Court that way.

Mr. Senechalle: I understand, Judge, but your Clerk

telephoned me to ascertain whether or not I would be

ready, and I informed him that I would not be.

=

The Court: Well, that is routine in doing his job. He

is trying to do his best to expedite the business of the

Court. The telephone calls are made routinely.

Mr. Senechalle: Thank you.

Mr. Goff: Thank you, your Honor.

CERTIFICATE

I, Joan M. Unzicker, do hereby certify that the fore-

going is a true, accurate and complete transcript of the

proceedings had in the above-entitled cause before the

Hon. Julius J. Hoffman, one of the Judges of said Court,

in his courtroom at Chicago, Illinois, on October 7,-1977

s/ Joan M. Unzicker

Official Court Reporter

United States District Court

Northern District of Illinois

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