Textor v. Board of Regents of Northern Illinois University

• Decision Date: 06 July 1983
• Docket Number: 82-2345,Nos. 82-1758,82-2346,82-2377 and 82-2378,s. 82-1758
• Citation: 711 F.2d 1387
• Parties: 32 Empl. Prac. Dec. P 33,729 Alice TEXTOR, et al., Plaintiffs-Appellants Cross-Appellees, v. BOARD OF REGENTS OF NORTHERN ILLINOIS UNIVERSITY, Eastern Michigan University, University of Toledo, University of Miami of Ohio, Ohio University, Kent State University, Ball State University, Bowling Green State University, Mid-America Conference and Fred Jacoby, as Commissioner of Mid-America Conference, Defendants-Appellees, and Central Michigan University and Western Michigan University, Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1387

711 F.2d 1387

32 Empl. Prac. Dec. P 33,729

Alice TEXTOR, et al., Plaintiffs-Appellants Cross-Appellees, v. BOARD OF REGENTS OF NORTHERN ILLINOIS UNIVERSITY, Eastern Michigan University, University of Toledo, University of Miami of Ohio, Ohio University, Kent State University, Ball State University, Bowling Green State University Mid-America Conference and Fred Jacoby, as Commissioner of Mid-America Conference, Defendants-Appellees and Central Michigan University and Western Michigan University Defendants-Appellees Cross-Appellants.

Nos. 82-1758, 82-2345, 82-2346, 82-2377 and 82-2378.

United States Court of Appeals Seventh Circuit.

Argued Feb. 22, 1983.

Decided July 6, 1983.

B. John Mix, Jr., Chicago, Ill., Edward Diedrich, John T. Mead, Dekalb, Ill., for defendants-appellants.

Michael A. Warner, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for plaintiffs-appellees.

J. David Kerr, Central Michigan Univ., Mount Pleasant, Mich., for defendants-appellees.

Before PELL and BAUER, Circuit Judges, and GRAY, Senior District Judge. ^*

PELL, Circuit Judge.

Plaintiff-appellant Alice Textor appeals the district court's denial of her motion for leave to file an amended complaint while her attorneys appeal the court's award of attorney's fees based on its finding that they were guilty of willful abuse of the judicial process. Two defendants have cross-appealed the court's denial of attorney's fees for their salaried counsel. Our discussion of these issues will be facilitated by treating them separately; we will therefore defer at this point the review of those facts relevant only to the award of attorney's fees.

I. Leave to Amend the Complaint.

A. Facts.

Plaintiff was employed by defendant Northern Illinois University (NIU) as women's athletic director and coach of women's basketball and tennis. In January of 1980 attorney Deidrich filed this class-action suit on behalf of plaintiff and other similarly situated women against the Mid-America Conference (MAC), member colleges of MAC, and MAC Commissioner Fred Jacoby. The complaint alleged constitutional and statutory violations stemming from defendants' disparate treatment of men's and women's athletics. Defendants filed motions to dismiss and supporting memoranda that urged dismissal based on Deidrich's failure to sign the complaint as required by Rule 11 of the Federal Rules of Civil Procedure, lack of personal jurisdiction over the out-of-state defendants, improper venue, and plaintiff's lack of standing to sue defendants other than NIU. Defendant Central Michigan University filed an answer incorporating these arguments. Plaintiff filed a short response that did not address defendants' arguments concerning jurisdiction or venue.

On October 2, 1980, in a published opinion, Judge Shadur ruled upon defendants' motions. Textor v. Board of Regents, 87 F.R.D. 751 (N.D.Ill.1980). Judge Shadur found that the complaint lacked any colorable basis for an assertion of personal jurisdiction over the out-of-state defendants. According to Judge Shadur, the complaint set forth only the most tangential contacts between MAC, its non-Illinois members, Jacoby, and the State of Illinois. These contacts, which consisted of occasional athletic contests in Illinois and MAC members recruiting students and faculty in Illinois, had no relationship with plaintiff's claimed injuries. The out-of-state defendants, therefore, On October 10, 1980, plaintiff filed a motion to vacate the dismissal of the out-of-state defendants and requested leave to amend the complaint, but did not present a proposed amendment. The court denied the motion to vacate and did not rule on the request for leave to amend as there was no amendment to consider. On November 12, 1980, plaintiff filed a second motion for leave to amend accompanied by a proposed amendment. On February 2, 1982, Judge Kocoras, to whom the case had been reassigned, denied plaintiff leave to amend because the amendment failed to cure the deficiencies that resulted in dismissal of the original complaint. Plaintiff filed a motion for reconsideration of that order on February 17, which initially was denied on February 18. On February 23, however, Judge Kocoras struck the order of February 18 and allowed plaintiff until March 2 to file memoranda in support of her "Rule 59(e)" motion. On April 6 plaintiff was again denied leave to amend. On April 12 Judge Kocoras reissued the order denying leave to amend, but correcting a minor error in the order of February 2. Plaintiff filed a notice of appeal on May 6.

                could not be reached through Illinois' long-arm service of process statute.   Ill.Rev.Stat. ch. 110, § 17(3).   Judge Shadur also found the allegations insufficient to establish venue in the Northern District of Illinois.   Although he indicated that defendants' remaining arguments were probably meritorious, Judge Shadur did not address these claims as the lack of jurisdiction and venue were adequate grounds for dismissal.   Plaintiff's claims against NIU, the only defendant not dismissed, were transferred to Judge Flaum to be resolved with a related case.
                

B. Jurisdiction on Appeal.

At the outset we must consider the contention that we lack jurisdiction over plaintiff's appeal because her notice of appeal was untimely.

The order denying plaintiff leave to amend entered on February 2 was a final, appealable order. Rule 4(a), Fed.R.App.P., requires that notice of appeal be filed within thirty days of entry of a final order. A court of appeals may not enlarge this time period, Fed.R.App.P. 26, but a timely motion to alter or amend the judgment filed with the district court under Rule 59(e), Fed.R.Civ.P., will toll the running of the thirty days. Fed.R.App.P. 4(a)(4). Plaintiff's motion to reconsider the denial of leave to amend, which the court properly viewed as a Rule 59(e) motion, would have tolled the thirty day period had it been timely. Plaintiff's motion, however, was not filed within ten days as required by Rule 59. Plaintiff's motion, then, did not toll the thirty days and should have been dismissed as untimely by the district court.

Plaintiff's failure to file a notice of appeal within thirty days of the district court's denial of her motion for leave to amend normally would prevent us from hearing her appeal. There is a narrow exception to this rule that permits us to entertain plaintiff's appeal notwithstanding her untimely notice. In Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), appellant filed an untimely Rule 59 motion. The INS did not object to the motion as untimely and the district court assured appellant that the motion was filed in time. Appellant, relying on the district court's assurances, did not file a timely notice of appeal in the mistaken belief that the filing period had been tolled. The Supreme Court held that in this situation the appeal should be treated as timely.

This court recently relied upon Thompson in relieving an appellant of the consequences of an untimely notice of appeal when he "relied to his detriment on the assurances of the district court that an untimely post-trial motion tolled the thirty-day notice of appeal time." Needham v. White Laboratories, Inc., 639 F.2d 394, 398 (7th Cir.1981), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 237; see also Motteler v. J.A. Jones Construction Co., 447 F.2d 954 (7th Cir.1971).

This case presents both elements of the Thompson exception: a post-trial motion that would have tolled the time for filing a notice of appeal had it been timely, and Because we have jurisdiction over plaintiff's appeal from the order of February 2, 1980, we need not address defendant's argument that the district court was without jurisdiction to enter the subsequent orders during the following April.

                action by the district court that plaintiff apparently relied upon in not filing a timely notice of appeal.   Plaintiff filed her Rule 59 motion 17 days after entry of judgment.   The district court denied the motion on February 18, but did not do so on the basis of untimeliness.   On February 23, while plaintiff could still file a timely notice of appeal, the district court struck the order of February 18 and granted plaintiff time to file memoranda in support of her "Rule 59 motion."   Plaintiff, understandably, relied upon this in preparing memoranda in support of her motion rather than filing a notice of appeal.   The district court erred in considering the motion, but this error should not deprive plaintiff of her right to appeal.   Accordingly, we believe that the facts of this case are within the Thompson exception and we have jurisdiction over plaintiff's appeal.
                

C. Sufficiency of the Proposed Amendment.

Contrary to defendants' assertion, the district court was empowered to grant plaintiff's motion for leave to amend even after judgment had been entered. United States Labor Party v. Oremus, 619 F.2d 683, 692 (7th Cir.1980). The district court's decision not to allow amendment of the complaint at this stage of the litigation is reviewable only for an abuse of discretion. Id.; Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir.1979). In reviewing the district court's decision, however, it must be remembered that "the hallmark of sound judicial discretion is the lawfulness of the action taken." Cohen v. Illinois Institute of Technology, 581 F.2d 658, 661 (7th Cir.1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979).

Leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). ¹ A district court may refuse to allow amendment of a complaint when the proposed amendment fails to cure the deficiencies of the original complaint. Verhein v. South Bend Lathe, Inc., supra; Cohen v. Illinois Institute of Technology, supra. Leave to amend may also be denied when the amending party is guilty of bad faith in delaying presentation of the...