2 F.3d 752 (7th Cir. 1993), 92-3358, Ball v. City of Chicago

Docket Nº:92-3358.
Citation:2 F.3d 752
Party Name:Mark A. BALL, Plaintiff-Appellant, v. CITY OF CHICAGO and Alfred S. Schultz, individually and as agent of the City of Chicago, Defendants-Appellees.
Case Date:August 12, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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2 F.3d 752 (7th Cir. 1993)

Mark A. BALL, Plaintiff-Appellant,


CITY OF CHICAGO and Alfred S. Schultz, individually and as

agent of the City of Chicago, Defendants-Appellees.

No. 92-3358.

United States Court of Appeals, Seventh Circuit

August 12, 1993

Argued May 6, 1993.

Rehearing and Rehearing En Banc

Denied Sept. 16, 1993. *

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William J. Harte (argued), Joan M. Mannix, Michael J. Progar, Charles E. Webster, Marvin A. Brustin, Chicago, IL, for plaintiff-appellant.

Jean Dobrer, Asst. Corp. Counsel (argued), Kelly R. Welsh, Asst. Corp. Counsel, Benna R. Solomon, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for defendants-appellees.

Before POSNER, FLAUM, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

Mark Ball brought suit against the City of Chicago and one of its police officers, claiming that the officer had violated his federal constitutional rights by using excessive force--namely by shooting him--while attempting to arrest him; Ball had recently been released from a mental institution, and was wielding a butcher knife when shot. The district judge dismissed the suit (which contained state-law counts as well, included under the district court's supplemental jurisdiction) for failure to prosecute; such a dismissal is with prejudice, and thus bars Ball from reinstituting it. Fed.R.Civ.P. 41(b). The judge's handling of this difficult matter has stimulated us to think about the principles that ought to guide district judges in the exercise of their discretion to impose sanctions, up to and including dismissal, because of dilatory or obstructive behavior by litigants or their lawyers.

Ball's suit had been filed in state court in March of 1990 and removed by the defendants the next month to federal district court. A pretrial conference was scheduled for August 14, 1990. The plaintiff's lawyer failed to appear. The judge rescheduled the conference for September 14 (later postponed to September 18), but on September 4 issued a rule to show cause why the case should not be dismissed because of the failure of the plaintiff's lawyer to show up at the August 14 conference. A standing order of the district judge warned that failure to appear at a pretrial conference is grounds for dismissal of a suit. The judge, however, cancelled both the rescheduled pretrial conference and the rule to show cause, instead setting a new schedule for pleadings and discovery. On February 13, 1991, after Ball's lawyer had failed to respond to the defendants' motion to dismiss the suit, the judge issued an order that discovery be completed by May 15. The order stated that no extensions of time would be granted, yet later she did grant an extension of time--in fact, though critical of "plaintiff's failure to fashion a comprehensible complaint despite two subsequent amendments," she allowed the plaintiff to file a third amended complaint and it was filed on time on August 14. After that the case was back on track for a while but soon Ball's lawyer was again missing filing deadlines and skipping status hearings. Understandably the judge's patience began to wear thin. In an order scheduling a status hearing for January 29, 1992, she reviewed in detail "the consistent failure of plaintiff's counsel in this case to comply with the orders of this Court" and to attend scheduled status hearings, and ended by saying: "The above litany of horribles simply is a disgrace to counsel and his client. The Court will no longer countenance such conduct. Plaintiff's counsel is hereby warned that any further non-compliance with the orders of this Court will result in the entry of appropriate sanctions, including the possible dismissal of this case for want of prosecution." Nevertheless the plaintiff's lawyer failed to appear at the January 29 status hearing. This was his fourth failure to appear. The judge ordered him to pay $75 to the City of Chicago for having wasted a half

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hour of the time of the city's lawyer, and added "that the next disregard of any court order will result in the dismissal of this case for want of prosecution."

Another status hearing was held on March 25 and this time a lawyer for Ball appeared--but a new lawyer, who explained that his partner, Ball's primary counsel, had had a heart attack. The judge thereupon extended for up to 45 days the deadlines for various filings due from Ball, which pushed the deadline for answers to interrogatories concerning Ball's expert witnesses back to April 10--but the answers were not filed then. On May 7 Ball's lawyer represented that the answers would be filed by June 2, and the court obligingly ordered that all outstanding discovery requests be answered by June 12, again warning that failure to comply would result in sanctions, including possible dismissal of the suit for failure to prosecute it. When on June 22 Ball had still failed to answer the interrogatories concerning the expert witnesses, the judge ruled that the experts would not be permitted to testify. On June 29 she dismissed the suit on her own initiative for failure to prosecute, explaining that the failure to answer the expert interrogatories, which had been outstanding for more than a year, was the last straw.

The case was not ancient at 27 months when it was dismissed. According to statistics compiled by the Administrative Office of the U.S. Courts, during the twelve-month period ending on September 30, 1992, the median time from filing to disposition of civil cases tried in the Northern District of Illinois was 24 months, and ten percent took more than 59 months to dispose of. Of course, considering how little progress had been made in 27 months, this case if allowed to continue might well have ended up in that more-than-59-month tail. The plaintiff's lawyers had not, however, been completely idle the entire 27 months. They had filed four complaints, had conducted some discovery, had responded to some though by no means all of the defendants' discovery requests--had even attended some of the pretrial conferences and status hearings. So dismissal of the suit for failure to prosecute may seem a misnomer. But, labels aside, the ground for the district judge's action is clear enough. She was fed up with the rude, dilatory, evasive, disrespectful--indeed contemptuous--conduct of the plaintiff's lawyers and considered dismissal of the suit an appropriate sanction and one of which she had given the lawyers more than adequate warning. The plaintiff's lawyers were refusing to play by the rules of the litigation game. They had repeatedly and unjustifiably failed to comply with perfectly reasonable orders. Although the judge had given them ample opportunity to mend their ways, there was no hint of improvement. It became apparent that these lawyers were unlikely to be able to prosecute the case to a conclusion within a reasonable amount of time and without disrupting a busy district judge's tight calendar to the possible prejudice of the litigants in her other cases. The lawyers had a good excuse for some of their delays and defaults--the heart attack and continuing coronary problems of the plaintiff's lead counsel--and worked it for all it was worth, and more; as the district judge explained, the excuse was applicable to only a small portion of the total course of conduct that persuaded her that the case was going nowhere.

Ball's new counsel argues that dismissal is a harsh sanction, which it is, and points to a number of cases in this circuit, illustrated by Del Carmen v. Emerson Electric Co., 908 F.2d 158 (7th Cir.1990), and Penny v. Shansky, 884 F.2d 329 (7th Cir.1989), in which district judges have been reversed because they precipitately dismissed a case for want of prosecution. He points out that the brunt of the sanction falls on a blameless plaintiff, for there is no suggestion that Mark Ball did anything to delay the suit and indeed there is doubt that he is mentally competent even to understand the proceedings. Ball's new counsel asks us to adopt a judge-made rule of the Third Circuit that before dismissing a suit for failure to prosecute, the district judge must notify the plaintiff directly so that he can consider whether to replace his lawyer. Dunbar v. Triangle Lumber & Supply Co., 816 F.2d 126, 129 (3d Cir.1987); Curtis T. Bedwell & Sons v. International Fidelity Ins. Co., 843 F.2d 683, 693 n. 19 (3d Cir.1988); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1147 (3d Cir.1990).

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