Schafer v. City of Defiance Police Dept.

• Decision Date: 26 June 2008
• Docket Number: No. 07-3933.,07-3933.
• Citation: 529 F.3d 731
• Parties: Mark SCHAFER et al., Plaintiffs-Appellants, v. CITY OF DEFIANCE POLICE DEPARTMENT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

529 F.3d 731

Mark SCHAFER et al., Plaintiffs-Appellants, v. CITY OF DEFIANCE POLICE DEPARTMENT et al., Defendants-Appellees.

No. 07-3933.

United States Court of Appeals, Sixth Circuit.

Submitted: June 5, 2008.

Decided and Filed: June 26, 2008.

ON BRIEF:

George R. Royer, Toledo, Ohio, for Appellants. Stephen Dennis Long, Baran, Piper, Tarkowsky, Fitzgerald & Theis Co., Toledo, Ohio, for Appellees.

Before: GILMAN and COOK, Circuit Judges; COHN, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

In March of 2006, plaintiffs Mark Schafer and his two minor children filed a complaint against the City of Defiance Police Department (DPD), DPD officer John Williamson, unidentified DPD officers, and the Defiance County Department of Job and Family Services (DJFS) (collectively referred to as the defendants), alleging various civil rights violations, as well as unspecified violations of federal and state law. The district court eventually dismissed the plaintiffs' claims for failure to prosecute, and the plaintiffs now appeal. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Mark Schafer was arrested in March of 2004 and charged with various sexual offenses involving his daughter, who was less than 13 years of age. The complaint alleges that DPD officers questioned the children in connection with the arrest without the consent of their parents and "without proper cause or procedure and in violation of their constitutional rights." It further claims that DPD officers caused the children to make incriminating statements by threatening to remove them from their parents' custody. Finally, the complaint asserts that the defendants falsely accused Schafer of engaging in criminal conduct and of being an unfit father on the basis of the information that was allegedly obtained from the children by improper means. On the other hand, Schafer pled guilty to charges of gross sexual imposition involving his daughter, although he continues to deny the charges. The district court eventually bifurcated the jointly filed complaint for the reasons set forth below.

A. Procedural history of Schafer's complaint

Schafer and the children — the latter proceeding by and through their mother and natural guardian, Andrea Schafer — filed suit as coplaintiffs. (Because Andrea Schafer is effectively litigating the case on the children's behalf, all references to "Andrea" throughout this opinion denote both her and the children collectively, unless otherwise required by the context.) At a scheduling conference in October of 2006, defense counsel expressed concern to the district court that Schafer and his children, one of whom was the victim of the offense for which Schafer was convicted, were all being represented by the same attorney, George Royer. Defense counsel argued that this created a conflict of interest under Rule 1.7 of the Ohio Rules of Professional Conduct, which addresses conflicts of interest among clients of an attorney. Royer, they asserted, "was in the untenable ethical position" of representing both Schafer, a convicted felon, and his daughter, the victim of his crime, "in an action in which the focus of judicial inquiry was to be the truthfulness of the victim's allegations" against Schafer.

According to the defendants, the district court agreed, stating that such joint representation was "ill-advised," and asking Royer whether he wished to proceed as counsel for Schafer or as counsel for Andrea. Royer allegedly responded that he "would heed the District Court's advice" regarding his representation of parties with conflicting interests and would proceed as counsel for Andrea only. The plaintiffs do not dispute the foregoing facts.

On October 6, 2006, the district court issued an order providing in pertinent part as follows: "Claims of plaintiff Mark Schafer dismissed on motion of defendants, without prejudice to refile within six months of the date of this Order." Schafer was therefore permitted to refile his complaint on or before April 2, 2007. The October 6 order effectively bifurcated the initial complaint into two separate actions: an action by Schafer, which was dismissed without prejudice, and an action by Andrea, which proceeded to discovery as explained below in Part I.B.

On June 7, 2007, more than two months after the refiling deadline had passed, Royer — who was still representing Andrea — requested that the district court extend Schafer's refiling deadline to October 31, 2007, citing communication problems with Schafer due to the latter's incarceration. The court denied the motion on June 13, 2007 and dismissed with prejudice Schafer's complaint for want of prosecution, explaining that "[a] prisoner who files a civil suit, and counsel who undertakes to represent such prisoner, are not entitled to unlimited postponements due to the problems inherent in being confined following a conviction."

Schafer, still represented by Royer, now appeals the dismissal of his complaint. His brief argues that the district court erroneously dismissed the complaint with prejudice for failing to (1) satisfy the pleading requirements set forth in the Federal Rules of Civil Procedure, and (2) state a claim for relief under Rule 12(b)(6) thereof.

B. Procedural history of Andrea's complaint

Although Schafer's complaint was dismissed without prejudice in October of 2006, Andrea's complaint was not. The district court issued an order in November of 2006 calling for the deposition of the remaining plaintiffs (i.e., Andrea Schafer and the children) to be completed on or before December 30, 2006. According to the order, their suit would be dismissed with prejudice for lack of prosecution if the depositions did not occur by that date. The defendants contend, and Andrea does not dispute, that defense counsel repeatedly attempted to contact Royer to schedule Andrea's deposition until finally, on December 21, 2006, Royer agreed to hold the deposition on December 28, provided that it last for only one hour. Royer said that he had to attend a continuing legal education (CLE) seminar on December 28 in order to complete, by December 31, his 2006 and 2007 CLE requirements, and that he planned to attend the deposition during his one-hour lunch break. Accordingly, Andrea's deposition was scheduled to take place on that date at noon in the office of DJFS's counsel in Toledo, Ohio.

Royer agreed to that date and time despite the fact that he had lost contact with Andrea. According to the defendants' motion to dismiss, Royer indicated to defense counsel that he no longer had a good address or telephone number for his clients, and that two attempts to contact Andrea by mail regarding the deposition were returned to him marked "unable to deliver" and "no forwarding address." Nevertheless, Royer said that he sent Andrea a letter notifying her that the deposition would begin at 1:00 p.m. on December 28, 2006. He later realized that he had indicated the wrong starting time, but eventually he was successful in reaching her by phone and confirmed with her that the deposition would begin at noon. Andrea, however, did not appear for the deposition until 1:20 p.m., after both Royer and DPD's attorney had left.

Shortly thereafter, the defendants moved to dismiss Andrea's complaint for want of prosecution. Royer opposed the motion and requested that the deposition be rescheduled, explaining that the letter that he had sent to Andrea notifying her of the deposition had specified the wrong start time (although he later confirmed the correct time with her) and that Andrea had gotten lost on her way to the deposition. According to the defendants, however, Andrea did not call Royer to alert him that she would be late or that she was having difficulty in finding where the deposition was to be taken. Royer also noted that the deposition had been scheduled at an inconvenient time for him personally because he was moving offices and because of his CLE seminar.

Ruling on the defendants' motion in an order dated March 6, 2007, the district court observed that the "Plaintiffs' attention to the obligation to prosecute this action ... can best be described as nearly imperceptible. For a period of time, [Andrea] failed to keep her counsel informed about her whereabouts." The court nevertheless gave "plaintiffs one last chance to get on board" with their case. It ordered Andrea and, if requested by defense counsel, the children themselves, to appear for depositions on or before April 16, 2007. Their failure to appear, the court warned, would result in the dismissal of their complaint with prejudice.

In addition, Andrea was ordered to reimburse the defendants for the expenses that defense counsel had incurred in connection with the scheduled December 28, 2006 deposition. The court ordered defense counsel to provide Royer with a statement of their fees and costs by March 15, 2007, instructed Royer to confirm by April 1, 2007 that Andrea would pay the amount submitted, and directed Andrea to pay the amount in full no later than June 1, 2007.

On April 2, 2007, Royer asked for an extension until April 20 to fulfill the requirements of the March 6 order, explaining that his work had been disrupted because he had been moving his office for the previous two months. The district court granted the request "as a final extension" in an order dated April 9, 2007. It also noted that Royer had once again failed to electronically file the motion, in violation of prior court orders. The court issued four orders during the course of the proceedings below directing Royer to file electronically as required by the court's local rules and seven notices regarding his failure to do so.

On May 9, 2007, the defendants renewed their motion to dismiss Andrea's complaint for want of prosecution on the ground that she had not complied with the court's November 17, 2006, March 6, 2007, or April 9, 2007 orders. They specifically noted that Andrea...