GCIU Employer Retirement Fund v. Chicago Tribune Co.

• Citation: 8 F.3d 1195
• Decision Date: 03 November 1993
• Docket Number: No. 92-3712,92-3712
• Parties: GCIU EMPLOYER RETIREMENT FUND, formerly known as International Printing Pressmen and Assistant's Union of North America Employer Retirement Fund, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1195

8 F.3d 1195

27 Fed.R.Serv.3d 522

GCIU EMPLOYER RETIREMENT FUND, formerly known as International Printing Pressmen and Assistant's Union of North America Employer Retirement Fund, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellee.

No. 92-3712.

United States Court of Appeals Seventh Circuit.

Argued May 6, 1993.

Decided Nov. 3, 1993.

Charles Orlove, David S. Allen (argued), Jacobs, Burns, Sugarman & Orlove, Chicago, IL, for plaintiff-appellant.

Alan L. Marx (argued), Joan D. Roy, E. Andrew Norwood, King & Ballow, Nashville, TN, for defendant-appellee.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Dismayed by plaintiff-appellant GCIU Employer Retirement Fund's perceived lack of intent to prosecute, the district court sua sponte dismissed with prejudice the Fund's suit against defendant-appellee Chicago Tribune Company. Because we conclude the district court abused its discretion by dismissing the Fund, we reverse and remand.

I.

Chicago Tribune Company is an Illinois corporation engaged in the business of newspaper publishing. The Fund's trustees administer a pension plan for the Tribune's employees. Pursuant to both a "pension subscription agreement" and a succession of collective bargaining agreements with the Chicago Web Printing Pressmen's Union Number 7, the Tribune regularly contributed to the Fund on behalf of the Tribune's pressroom employees. In July 1985, the Tribune and the pressmen's union were unable to resolve their difference regarding their next collective bargaining agreement; dissatisfied, the pressmen struck. The Tribune responded by hiring permanent replacements.

Suspecting that the Tribune had ceased making the required pension contributions to the Fund, the pressmen's union exhorted the Fund to perform a payroll audit of the Tribune's books and records to insure the Tribune had in fact made the appropriate pension contributions for each union pressman and each replacement worker. The Tribune rebuffed the Fund's demand on four separate occasions. Finally, on October 15, 1986, the Fund's trustees sued the Tribune to compel an audit and to force the payment of any shortfalls the audit might reveal. ¹

The Tribune moved to dismiss the Fund's complaint on the basis that the most recent collective bargaining agreement with the pressmen's union had expired, thereby extinguishing its obligation to contribute to the Fund. The Fund responded to the motion to dismiss by relying upon the pension subscription agreement, which, it claimed, obligated the Tribune to contribute to the Fund at the same rate as had been required in the expired collective bargaining agreement. The Fund moved for summary judgment.

The district court referred the Tribune's motion to dismiss and the Fund's motion for summary judgment to Magistrate Judge Elaine Bucklo for a report. After concluding the pension subscription agreement obligated the Tribune to continue its contributions to the Fund, in June 1988 Magistrate Judge Bucklo recommended the former motion be denied and the latter granted. The district court agreed with Magistrate Judge Bucklo's recommendations and purported to enter judgment in the Fund's favor.

Upon hearing the news, the Tribune consented to an audit and also appealed the district court's judgment. The audit allegedly revealed a shortfall, and the Tribune's appeal was short-lived. In October 1989, this court dismissed the appeal for lack of appellate jurisdiction because the district court's judgment failed to set out specifically the relief to which the Fund was entitled; in effect, it was held no judgment had been entered.

Rather than return to the district court to insure that the judgment would be properly entered, the Fund left the matter hanging and instead chose to try to negotiate a settlement. In February 1990, the two sides tentatively agreed that the Tribune would contribute a specific amount to the Fund, subject to the preparation of an acceptable written instrument embodying the agreement. The Tribune submitted a proposed draft which, according to the Fund, was worded in a way that would have released the Tribune from any obligation to make contributions on behalf of the strikers. The Fund found the Tribune's language unsatisfactory because several months earlier an NLRB administrative law judge considering a parallel or similar unfair labor practices claim by the Tribune's pressmen had issued a "make whole" order in favor of the pressmen and against the Tribune; the Fund interpreted the order to include pension contributions, an interpretation which, if correct, would supposedly entitle the Fund to substantial additional contributions. The Fund redrafted the proposed agreement to its own liking but not to the Tribune's; in August 1990 the Tribune rejected the Fund's revisions.

In October 1990, the Tribune's attorneys again broached the possibility of settlement. Several conferences failed to resolve the respective parties' differences, and in August 1991, the parties reached an impasse. During the entire twenty-two month negotiation period, neither party had any contact with the district court whatsoever.

On August 15, 1991, the Tribune filed for summary judgment. ² It took the position that a recently-signed collective bargaining agreement both superseded the pension subscription agreement and eliminated any requirements that it contribute additional amounts to the Fund. Shortly thereafter, the Fund filed its own motion for summary judgment. When the parties came before the district court on September 12, 1991, the district court learned for the first time of the ineffectiveness of its August 1988 grant of summary judgment in the Fund's favor. Although surprised that the case was still pending and disturbed that no one had bothered to keep it abreast of the suit's status in the interim, the district court offered to assist the parties in their negotiations, but was advised that further discussions were unlikely to resolve the controversy. The district court accepted the parties' proposed briefing schedule for the summary judgment cross-motions. This schedule was strictly followed in the following months.

On March 23, 1992, the district court ordered the parties to appear for a status conference the following week. On the day of the conference, the district court informed the parties that virtually the entire court file was missing and directed the parties to reconstruct the missing file, which they did immediately. The district court once again indicated its willingness to assist in settlement negotiations and ordered the parties to appear for another status conference the following month.

At the next status conference, the district court and the parties all agreed the motions for summary judgment had been pending long enough. The district court expressed its view that no further briefs were necessary and that "we should just rule and have it done." Supplemental Record 102 at 6. The transcript of this conference suggests that both the Fund and the Tribune reasonably understood the district court's remarks to mean that a ruling on the cross-motions for summary judgment would be forthcoming. Their interpretation proved to be erroneous. Shortly after the conference and to the surprise of both parties, the district court dismissed the Fund's suit with prejudice for the Fund's lack of prosecution.

In ordering the suit dismissed, the district court wrote:

Because of the history of inattention to and inactivity in this case, the court is dismissing the case for want of prosecution. The court is tremendously dismayed that two years passed between the time the Seventh Circuit dismissed the appeal and the time that the litigants returned to this court. As the Seventh Circuit observed in its order dismissing the appeal, the requested injunctive relief--submission to the audit--was actually conducted. All that remained was for the Fund to obtain a money judgment based on the audit. The plaintiff failed to prosecute, however. In fact, it was due to Defendant's action (its August 15 motion to reconsider--styled a motion for summary judgment) rather than any action on the plaintiff's part that this case found its way back to this court.

Rule 21 of the General Rules of the Northern District of Illinois governs dismissals for want of prosecution. Rule 21(a) provides in relevant part:

Cases which have been inactive for more than six months may be dismissed for want of prosecution.

The Fund has failed to offer the court a reasonable explanation as to why the case was inactive for twenty-two months. In the parties' Joint Status Report, they state that following the dismissal of the appeal, "the parties engaged in extensive settlement negotiations," ultimately concluding, however, that the case could not be resolved by settlement.

It is laudable that the parties engaged in efforts to settle. Nonetheless, their settlement efforts in no way excuse plaintiff's failure to prosecute this case for close to two full years. The plaintiff should have moved for a stay if it believed that settlement was imminent. Once a party invokes the judicial system by filing a lawsuit, it must abide by the rules of the court; a party can not decide for itself when it feels like pressing its action and when it feels like taking a break because "[t]rial judges have a responsibility to litigants to keep their court calendars as current as humanly possible." Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 608 (7th Cir.1986). In this case, the plaintiff unilaterally decided to take a break from litigation. The consequences of that decision and a delay of such length are grave: dismissal for want of prosecution.

The briefs filed last fall are too little and too late to overcome the two year history of inactivity. They are too little because they are not even fully briefed cross motions. Defendant's motion did not even receive a formal response from the...