376 F.3d 720 (7th Cir. 2004), 03-3944, Sharif v. Wellness Intern. Network, Ltd.

Docket Nº:03-3944, 04-1358.
Citation:376 F.3d 720
Party Name:Richard SHARIF and Rosee Torres et al., Plaintiffs-Appellants, Cross-Appellees, v. WELLNESS INTERNATIONAL NETWORK, LTD., a Texas corporation, a/k/a Win, Win Network, Inc., Ralph Oats, Cathy Oats, and Sheri Matthews, Defendants-Appellees, Cross-Appellants.
Case Date:July 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 720

376 F.3d 720 (7th Cir. 2004)

Richard SHARIF and Rosee Torres et al., Plaintiffs-Appellants, Cross-Appellees,


WELLNESS INTERNATIONAL NETWORK, LTD., a Texas corporation, a/k/a Win, Win Network, Inc., Ralph Oats, Cathy Oats, and Sheri Matthews, Defendants-Appellees, Cross-Appellants.

Nos. 03-3944, 04-1358.

United States Court of Appeals, Seventh Circuit

July 21, 2004

Argued June 9, 2004.

Rehearing Denied August 23, 2004.

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[Copyrighted Material Omitted]

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John G. Jacobs (argued), Reem Odeh, Chicago, IL, for Plaintiffs-Appellants.

John L. Henmdricks (argued), Akin, Gump, Strauss, Hauer & Feld, Dallas, TX, Peter F. Lovato, III, Boundas, Skarzynski, Walsh & Black, Rebecca Alfert, Wildman, Harrold, Allen & Dixon, Chicago, IL, for Defendants-Appellees.

Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

This case concerns two procedural decisions issued by District Judge Samuel Der-Yeghiayan. The first arises from the court's dismissal of a suit for want of prosecution after plaintiffs' counsel failed to appear for a hearing date. Second, the court denied Wellness International Network's motion to compel arbitration. We consolidated both appeals.

This suit stems from distributorship contracts that the plaintiffs signed with Wellness International Network (WIN). 1 The suit claims that WIN was only nominally engaged in the business of selling health and wellness products and that they were actually running an illegal pyramid scheme. The suit alleged violations of RICO, federal securities law, and the Illinois Consumer Fraud Act as well as violations of the criminal law giving rise to an alleged right to void the contracts as against public policy. An amended complaint was filed in January 2003 in the Northern District of Illinois.

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Shortly thereafter, in March 2003, the plaintiffs filed another lawsuit against the same defendants alleging substantially similar claims. This suit was, however, styled a class action. Budner v. Murnighan, No. 03 C 2100 (N.D.Ill.). In Budner, WIN filed a motion to compel arbitration based on contractual arbitration provisions which provided:


District Judge James Moran granted WIN's motion, 2003 WL 21544236 (N.D.Ill. June 9, 2003). The Budner plaintiffs did not appeal; and they proceeded to file a demand for arbitration with the American Arbitration Association.

Returning to the present case, WIN filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1406(a), alleging improper venue. The motions were fully briefed before District Judge Blanche Manning. Significant for our purposes, Judge Manning granted plaintiffs' motions for two short extensions of time to file their briefs.

Before the motions were ruled on, in August 2003, the case was transferred to Judge Der-Yeghiayan. Upon receiving the case, the court "apparently" set an initial status date for October 20, 2003. We say apparently because there is only a docket entry to reflect this. There is no order in the district court file and no docket number assigned to that entry on the docket sheet. Moreover, plaintiffs' counsel insists that he never received notice of the hearing. For whatever reason, plaintiffs' counsel, as well as counsel for one of the defendants, did not appear. That day, the court checked to see what motions were outstanding and set a status date of February 2, 2004. Also on October 20, WIN filed a motion to compel arbitration. The motion was identical to the one presented to Judge Moran; and WIN included a copy of Judge Moran's order granting the motion.

Three days later, on October 23, the district court held a hearing on WIN's motion to compel arbitration. Counsel for all parties were present. At the hearing, nothing was said about counsels' absence 3 days earlier. Judge Der-Yeghiayan orally denied WIN's motion. The court later wrote "defendant already had before this court a motion to dismiss this action for lack of venue pursuant to 28 U.S.C. § 1406(a)" wherein the "defendant presented to this court an agreement between the parties that provided that proper venue for the matter was in the state of Texas and that arbitration shall take place in the state of Texas." Accordingly, the district court found that the motion to compel arbitration was "superfluous" because "defendant's pending motion to dismiss for improper venue already included the arbitration clause in Texas." The court ruled that it "did not deny the Defendant's motion to compel arbitration in Texas on the merits, but ruled that it would not grant such a motion at that time because the defendant already had a motion to dismiss before this court and a ruling on the motion was scheduled which would have been dispositive of the issue on the merits." WIN filed an interlocutory appeal.

At the same hearing, the court issued a minute order which noted "Status hearing set for 02/02/04 to stand." On November 13, 2003, the parties were before the court

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pursuant to WIN's motion to stay proceedings in the district court while it pursued their appeal. Once again, counsel for all parties were present. Judge Der-Yeghiayan called the motion and immediately set a briefing schedule, calling for plaintiffs to file a response on November 26 and defendants to reply a week later. At the end of the day, Judge Der-Yeghiayan said, "[A]nd we will be back, next status, December 4, '03 at 9:00 o'clock." Judge Der-Yeghiayan did issue a minute order reflecting the briefing schedule. Both plaintiffs and defendants filed their respective papers in accordance with the court's stated schedule.

On December 4, 2003, Judge Der-Yeghiayan held the status hearing and denied WIN's motion to stay proceedings. Significantly, plaintiffs' counsel was not present. The transcript from December 4 reflects no comment or inquiry by the court or defense counsel regarding plaintiffs' counsel's absence.

Four days later the court issued a minute order dismissing the case without prejudice for want of prosecution due to counsel's failure to attend the December 4 hearing or to later appear in court to explain the absence. The court also noted that plaintiffs' counsel had failed to appear for an initial status call (the one on October 20) when the case had been transferred to him. Finally, Judge Der-Yeghiayan emphasized that plaintiffs had obtained two extensions of time from Judge Manning.

Plaintiffs filed a motion to vacate the dismissal order a week later. The motion, which both attorneys at counsel's firm verified, stated that they had not received any order setting the December 4 status date and had heard nothing at the November 13th hearing regarding such a date. It further noted that they had not received the order dismissing the suit for want of prosecution but had only learned of it when their client (who had originally filed the suit pro se) had received the order and called them about the suit's dismissal. Judge Der-Yeghiayan denied the motion. He emphasized that even if it was true that counsel did not hear the setting of the December 4 date, "This court expects all counsel to heed such oral notifications and pay attention at status calls in order to enable the status calls to be a productive means of moving the case forward. Counsel should not expect to rely on a subsequent minute order to keep counsel apprized of the status of the case."

Plaintiffs then filed a combined verified motion to reconsider the denial of the motion to vacate and a second motion to vacate the dismissal order, along with a supporting memorandum. Counsel explained the two extensions they received from Judge Manning. They also emphasized that the result of dismissal could be that the statute of limitations might time-bar some of plaintiffs' claims. The day after the motion was filed, Judge Der-Yeghiayan...

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