Beeson v. Smith

Decision Date26 January 1990
Docket NumberNo. 89-1545,89-1545
Citation893 F.2d 930
PartiesCarol A. BEESON and Dora M. Shepherd, Plaintiffs-Appellants, v. Levi SMITH, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Stephen J. McMullen (argued), Harvey L. Walner & Associates, Robert Habib (argued), Chicago, Ill., for plaintiffs-appellants.

David Santori, Chicago, Ill., Bryon L. Matten, Oak Brook, Ill., for defendant-appellee.

Before COFFEY and RIPPLE, Circuit Judges, and DUMBAULD *, Senior District Judge.

DUMBAULD, Senior District Judge.

Appellants Carol A. Beeson and Dora M. Shepherd, residents of Mississippi and Tennessee, respectively 1, appeal the District Court's denial of their motion to vacate a default. They were passengers involved in a collision in Illinois with a vehicle driven by appellee Smith. While recognizing that in principle such a motion is discretionary, we reverse and find "abuse of discretion" in accordance with the practice of reviewing courts to avoid the drastic consequence to clients of denial of their day in court, when a more appropriate remedy would have been sanctions against their attorney for his desultory and offhand handling of their case.

The basic principle that a District Court has inherent discretionary power "of ancient origin ... at common law" to dismiss a case for failure to prosecute diligently was set forth by Justice Harlan in Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962). 2

Nevertheless we have reversed refusals to vacate default judgments where the neglect does not amount to wilfulness and a substantial case on the merits is demonstrated. Passarella v. Hilton International Co., 810 F.2d 674, 675-76 (7th Cir.1987); Schilling v. Walworth County, 805 F.2d 272, 274-75 (7th Cir.1986).

We turn to a consideration of the course of events and the action taken by Judge Duff which we conclude was unnecessarily drastic and foreclosed appellants' opportunity to litigate the merits of their claim for damages for personal injuries.

We note that plaintiffs did travel to Chicago where their depositions were taken and filed on March 14, 1989. They were also examined by defendant's physician. Defendant's deposition and that of the driver of the pickup truck in which plaintiffs were traveling were also taken. 3 In plaintiffs' motion of February 13, 1989, to vacate default, plaintiffs announced they were ready for trial.

We are satisfied that the appellants have an arguably meritorious claim appropriate for resolution by the trier of fact. Judge Duff noted for the record 4 that plaintiffs' attorney at a settlement conference said the plaintiffs had had broken legs but the file contradicted this assertion; and that the lawyer had never talked with his clients but put forward a demand of $300,000 when the specials were only $4,000. These circumstances certainly demonstrate questionable representation by counsel, but do not negate the possibility of damages in some amount 5 upon proof as to liability. 6

Other significant indicia of inadequate and inattentive representation by counsel are the facts that on December 2, 1988, plaintiffs' attorney failed to appear for status call, and the case was dismissed. This default was vacated on January 10, 1989.

Appellants' attorney again failed to appear on February 13, 1989. The cause was again dismissed for want of prosecution, with prejudice. Ten days later appellants' attorney again moved to vacate the dismissal. He sought to put the blame for his non-appearance on February 13, 1989, upon his secretary, who mistakenly supposed that Lincoln's Birthday was being celebrated on that date in Federal as well as State court. Hence the case was not listed on the firm's call sheet for that date (although numerous other cases for other attorneys in the firm were).

But the attorney's own affidavit shows that "the 2/13/89 Status date" was docketed "in my docket book" [Italics supplied] so that her failure to list it "on...

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  • Ball v. City of Chicago
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 16 Septiembre 1993
    ...the plaintiff through dismissal of the suit. Webber v. Eye Corp., 721 F.2d 1067, 1069 n. 2 (7th Cir.1983) (per curiam); Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990); Schwarz v. United States, 384 F.2d 833, 836 (2d Cir.1967); Poulis v. State Farm Fire & Casualty Ins. Co., supra, 747 F.2......
  • Philips Medical Systems Intern. B.V. v. Bruetman, s. 92-3155
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    ...Corp. v. Foundry Allied Industries, Inc., 937 F.2d 351, 353-54 (7th Cir.1991). The standards are explicitly merged in Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990), and Anchorage Associates v. Virgin Island Bd. of Tax Review, 922 F.2d 168, 177 (3d Cir.1990), although Buck v. Dept. of Ag......
  • Kovilic Const. Co., Inc. v. Missbrenner
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 10 Febrero 1997
    ...this noncompliance may have been inappropriate because attorneys may have been financially unable to pay the fines); Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990) (attorney's questionable tactics during a settlement conference and failure to appear at a status hearing did not warrant th......
  • Gold v. Rader
    • United States
    • United States Appellate Court of Illinois
    • 27 Julio 1990
    ...an abuse of discretion by the trial judge. After the briefs were filed, Gold was given leave to cite additional authority, Beeson v. Smith (7th Cir.1990), 893 F.2d 930 and Wilhelmsen v. Century 21 Bee Line Realty, Inc. (1989), 193 Ill.App.3d 64, 140 Ill.Dec. 164, 549 N.E.2d 815. Both cases ......
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