Daniels v. Brennan
| Decision Date | 17 October 1989 |
| Docket Number | No. 88-2878,88-2878 |
| Citation | 887 F.2d 783 |
| Parties | Frank DANIELS, Plaintiff-Appellant, v. Bernard J. BRENNAN, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Cynthia G. Bowman, Sheila Berner, Northwestern University Legal Clinic, Chicago, Ill., for plaintiff-appellee.
Judson H. Miner, CC, Ruth M. Moscovitch, ACC, Appeals Div., Mary L. Mikva, Appeals Div., Office of Corp. Counsel, Chicago, Ill., for defendant-appellee.
Before CUMMINGS, POSNER, and KANNE, Circuit Judges.
This appeal arises out of a dismissal of this case by the district court for plaintiff's want of prosecution. Plaintiff, Frank Daniels, raises three issues in this appeal. First, he asserts that the district court abused its discretion by allowing his attorney Mr. Zuganelis, to withdraw as counsel of record. Second, he argues that the district court abused its discretion by sua sponte dismissing his case for lack of prosecution. Third, plaintiff claims that the district court abused its discretion by denying his postjudgment "pro se " motion for relief under Federal Rule of Civil Procedure 60(b).
"Withdrawal" of Counsel
Initially, we must address what is a fundamental and underlying misapprehension. Plaintiff contends that the district judge granted Mr. Zuganelis leave to withdraw as his counsel and that such action by the court constituted an abuse of discretion. The fact, however, is that Mr. Zuganelis never directed any "request" to the district court for leave to withdraw as plaintiff's counsel of record. On August 5, 1988, the following colloquy took place between plaintiff's counsel and Judge Conlon.
I am afraid I do know the status of this case. On April 29th I entered an order at a status hearing. The pretrial order was to be filed, let me see, at a pretrial conference on July 19th. That pretrial conference had to be canceled because no pretrial order was prepared.
On July 19th, we entered an order giving you a little more than two weeks to prepare the pretrial order. The pretrial order is due today, and as I understand it you don't have a pretrial order.
I'll tell you, I will entertain a motion to reinstate, but only if within the next two weeks the plaintiff produces the pretrial order and is ready for trial.
This is not factually complex case, and it shouldn't be a big burden to prepare.
(Transcript of hearing on August 5, 1988) (emphasis supplied).
This colloquy discloses neither a formal nor informal request for leave to withdraw by Mr. Zuganelis. There was merely a unilateral declaration that "this is the last time I will be here on behalf of the plaintiff" and later the statement that "I have been fired by my client." As both parties now acknowledge on appeal, Mr. Zuganelis completely ignored the requirements of the local rules of the Northern District of Illinois which provide:
Once an attorney has filed an appearance ... he/she is the attorney of record for the party represented for all purposes incident to the proceeding in which the appearance was filed. The attorney of record may not withdraw ... without first obtaining leave of court.
N.D.Ill. Local Rule 3.15 (emphasis supplied). 1 Mr. Zuganelis sought to portray his act of disengagement as a "fait accompli." 2 It was not. At no time does the record indicate that Judge Conlon granted Mr. Zuganelis leave to withdraw as plaintiff's attorney of record. Mr. Zuganelis may have presumed (as does the plaintiff) that he was no longer attorney of record, but such was not the case. Nor is there support for plaintiff's claim that leave to withdraw was "informally" granted. As the balance of the record of that August 5th hearing shows:
Now, if your client or your former client, or whatever the status is at this point, wishes to proceed with this case, it means getting that pretrial order in and standing ready for trial within the next several weeks. I don't mean trial within the next several weeks, but I mean coming in on an appropriate motion.
(Which were all the proceedings heard this date.)
(Transcript of Hearing on Aug. 5, 1988) (emphasis supplied). The district judge acknowledged the uncertainty concerning the relationship between Mr. Zuganelis and the plaintiff, describing Mr. Daniels as "your client or former client, or whatever the status is at this point." But, at no time did the court entertain--much less grant--a request by plaintiff's counsel to withdraw representation.
The unmistakable fact is that the court was never presented with a motion to withdraw, and thus none could be granted. This is not a situation of form over substance. While Mr. Zuganelis may have felt that he had escaped the burden of his duty to represent the plaintiff, the court did not indicate that he was free of those responsibilities. The district judge did not waive the requirements of Local Rule 3.15. Nor was leave to withdraw given by the court. The preemptive attempt by Mr. Zuganelis to remove himself as counsel for plaintiff had no legal effect. There can be no abuse of discretion on the part of the court for an act which did not take place.
We next examine the question of the propriety of the dismissal of this case for want of prosecution. District courts have inherent authority to dismiss a case sua sponte for a plaintiff's failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). A dismissal for lack of prosecution is appropriate when there is "a clear record of delay or contumacious behavior." 3 Penny Theater Corp. v. Plitt Theaters, Inc., 812 F.2d 337, 339 (7th Cir.1987) (). The standard of review for a dismissal for want of prosecution is abuse of discretion. Link, 370 U.S. at 633, 82 S.Ct. at 1390; Pyramid Energy, Ltd. v. Heyl & Patterson, 869 F.2d 1058, 1061 (7th Cir.1989). 3 In reviewing dismissals for want of prosecution, we have stated that we will not set aside a trial court's discretionary order unless it is clear that no reasonable person could concur in the trial court's assessment of the issue under consideration. 3 Penny Theater, 812 F.2d at 339 (citations omitted). In order to determine whether the trial court abused its discretion, the reviewing court must examine the procedural history of the case and the situation at the time of the dismissal. Pyramid Energy, 869 F.2d at 1061.
In support of his claim that dismissal was improper, plaintiff asserts that there was no evidence of lack of prosecutive intent; that he was not personally responsible for the delays; the court failed to consider lesser sanctions; the relatively young age of the case; and that the defendant was not prejudiced by the delays. Given the abuse of discretion standard with which we review an involuntary dismissal, none of these claims lead us to conclude that the dismissal of Daniels' case was improper.
An examination of the procedural history and the situation at the time of the dismissal discloses a sufficient record of dilatory conduct on the part of the plaintiff to warrant dismissal. A distinct lack of prosecutive intent dates back to the inception of the case.
On January 27, 1987, Daniels filed a complaint against defendant Bernard J. Brennan individually and in his capacity as a Chicago police officer. The complaint alleged that his arrest and the events surrounding it violated his constitutional rights under 42 U.S.C. Secs. 1983, 1985 and 1988. The plaintiff, however, failed to serve process on Brennan until sometime in June of 1987, almost five months after the complaint was filed. 4 Once service had been perfected, plaintiff's counsel failed to appear at the next scheduled hearing on July 9, 1987. Counsel's absence occurred without notice or any request to reschedule the hearing. In response to the failure to appear, an explicit warning was issued by Judge James B. Moran indicating that if plaintiff's counsel did not appear at the next scheduled hearing on July 16, 1987, the case would be dismissed for want of prosecution. Mr. Zuganelis heeded the warning and appeared on behalf of the plaintiff, but...
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