Ivy v. Kimbrough

• Decision Date: 22 May 1997
• Docket Number: No. 96-1417,96-1417
• Citation: 115 F.3d 550
• Parties: Dan IVY, Plaintiff-Appellant, v. Warren KIMBROUGH; David W. Shull, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 550

115 F.3d 550

37 Fed.R.Serv.3d 801

Dan IVY, Plaintiff-Appellant, v. Warren KIMBROUGH; David W. Shull, Defendants-Appellees.

No. 96-1417.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 16, 1997.

Decided May 22, 1997.

Erwin L. Davis, Fayetteville, AR, argued, for plaintiff-appellant.

William B. Putman, Fayetteville, AR, argued, for defendants-appellees.

Before LOKEN, GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

LOKEN, Circuit Judge.

In July 1994, Fayetteville Police Officer David W. Shull investigated a reported domestic disturbance at the home of attorney Dan Ivy and his wife, Sarah. Sarah accused Dan of "pushing her around" during an argument; Shull noticed that Sarah's hand was cut and her nose red and swollen. Dan said that Sarah was crazy and that her father, Arkansas Chancery Court Judge Warren Kimbrough, could confirm she had been hospitalized for mental problems in the past. After a telephone call to Judge Kimbrough, Shull arrested Dan Ivy for violation of the Arkansas Domestic Abuse Act. He was later tried and convicted on that charge, and the Arkansas Court of Appeals affirmed. See Ivy v. State, 1996 WL 748226 (Ark.Ct.App.1996). Ivy's appeal to the Sup

reme Court of Arkansas is pending.

In July 1995, Ivy filed this action against Officer Shull and Judge Kimbrough, accusing them of conspiring to arrest Ivy without probable cause, and asserting tort claims under 42 U.S.C. § 1983 and state law. Ivy now appeals four district court ¹ orders, arguing that the court erred in granting defendants' unopposed motions for summary judgment, in denying Ivy's motion to set aside that judgment, and in imposing monetary sanctions against Ivy and his attorney, Erwin L. Davis. We affirm.

I. Summary Judgment Issues.

The district court dismissed Ivy's initial complaint because its "extraneous, impertinent, and scandalous" allegations violated Fed.R.Civ.P. 8(e). After Ivy filed an amended complaint, defendants moved to dismiss because he failed to serve it within the time prescribed in the court's prior dismissal order. On October 19, 1995, the district court denied that motion but advised the parties that "any motion for summary judgment or other potentially dispositive motions should be prepared and filed as soon as possible."

On October 30 and 31, Shull and Kimbrough filed motions for summary judgment supported by affidavits and testimony from the state court criminal proceedings. Ivy did not respond within eleven days, as required by Local Rule C-7 of the Western District of Arkansas. On November 22, the district court granted summary judgment dismissing all claims with prejudice. The court explained that the materials submitted by defendants clearly show defendants did not conspire to have Ivy arrested and Officer Shull had probable cause to arrest. Therefore, because Ivy ignored the summary judgment motions, "summary judgment is not only warranted, it is mandated. Based on the record before the court this case was frivolous from the start and will be dismissed."

On appeal, Ivy first argues that Local Rule C-7 conflicts with Fed.R.Civ.P. 56(c), which provides that a motion for summary judgment must be filed ten days "before the time fixed for the hearing" and the opposing party may serve opposing affidavits "prior to the day of hearing." This contention is without merit. "Although Rule 56(c) refers to a hearing, an opportunity to submit briefs and supporting affidavits satisfies the parties' right to be heard." Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449 (8th Cir.1992); see 11 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 56.15[a] (3d ed. 1997), and cases cited. Local Rule C-7 gives the party opposing a motion for summary judgment eleven days to respond. After that eleven-day period, the court may treat the motion as submitted unless a party has requested, and the court has granted, more time for further briefing, for oral argument, or for an evidentiary hearing.

Ivy next argues that the district court erred in granting summary judgment because it "completely ignore[d] the strong prima facia [sic] case mounted in affidavit and testimony form by [Ivy]." However, this contention is based upon materials Ivy submitted with his December 1 motion to set aside the judgment, whereas the court's November 22 order granting summary judgment was based upon the record at that time, a record that included Ivy's failure to respond to defendants' properly supported motions. Even in a conspiracy case, "a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Thus, the court's November 22 order granting summary judgment must be affirmed.

II. The Motion To Set Aside.

On December 1, Ivy filed a motion to set aside the court's summary judgment, attaching a voluminous though belated response to defendants' motions for summary judgment. Ivy urged the court to set aside the judgment under Rule 60(b)(1) because of "excusable neglect." He submitted an affidavit averring that he did not timely respond to defendants' motions because he was at his father's deathbed in Eastern Arkansas, unaware of the motions and inaccessible to his attorney. Citing many cases, the district court denied this motion because Ivy's attorney was served with the summary judgment motions and inexcusably failed to respond, and an attorney's ignorance or carelessness does not constitute "excusable neglect" under Rule 60(b)(1). The court went on to review Ivy's tardy submission opposing summary judgment and concluded that it did not raise a genuine issue of material fact on the essential issues of conspiracy and probable cause to arrest.

We review the denial of Rule 60(b) relief for abuse of discretion. See Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir.1975). Excusable neglect means "good faith and some reasonable basis for noncompliance with the rules." Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 887 (8th Cir.1996). Here, in an earlier order, the district court had directed the parties to pursue the case "to a conclusion as quickly as possible." In this setting, counsel for Ivy had no reasonable basis for ignoring the motions for summary judgment. And in denying Ivy's motion to set aside, the district court prudently reviewed the merits of his untimely fact submissions to ensure that the order granting summary judgment was not manifestly unjust.

Finally, Ivy argues that the order dismissing his claims for "false arrest, false imprisonment, outrageous conduct and abuse of the legal process" must be set aside because those pendent state law claims must be dismissed without prejudice. Ivy did not raise this issue in the district court and therefore we review it for plain error. In most cases, when federal and state claims are joined and the federal claims are dismissed on a motion for summary judgment, the pendent state claims are dismissed without prejudice to avoid "[n]eedless decisions of state law ... as a matter of comity and to promote justice between the parties." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); see Koke v. Stifel, Nicolaus & Co., 620 F.2d...