985 F.2d 330 (7th Cir. 1993), 92-1754, Tobey v. Extel/JWP, Inc.

Docket Nº:92-1754.
Citation:985 F.2d 330
Party Name:Prac. Dec. P 42,009, 24 Fed.R.Serv.3d 811 Diane M. TOBEY, Plaintiff-Appellant, v. EXTEL/JWP, INCORPORATED, and Stuart Schwartz, Defendants-Appellees.
Case Date:February 03, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 330

985 F.2d 330 (7th Cir. 1993)

Prac. Dec. P 42,009,

24 Fed.R.Serv.3d 811

Diane M. TOBEY, Plaintiff-Appellant,

v.

EXTEL/JWP, INCORPORATED, and Stuart Schwartz, Defendants-Appellees.

No. 92-1754.

United States Court of Appeals, Seventh Circuit

February 3, 1993

Argued Dec. 7, 1992.

As Amended on Denial of Rehearing

Feb. 22, 1993.

Page 331

Kenneth A. Henry (argued), Chicago, IL, for plaintiff-appellant.

James J. Convery, Robert H. Brown, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Chicago, IL, for defendants-appellees.

Before CUMMINGS, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

On April 25, 1990, Diane Tobey filed this suit in federal district court, alleging various forms of sex discrimination by her former employer (Computat, now Extel) and one of her supervisors (Schwartz), in violation of Title VII and the Equal Pay Act. After pretrial discovery, the defendants on September 6, 1991, moved for summary judgment. Tobey asked for and was granted leave to file a response by October 4. Two timely filed and granted extensions of time brought the due date to November 8. When no response had been received by December 4, the district judge issued a brief order that after reciting the chronology of filings states: "Defendants' motion for summary judgment is therefore granted due to plaintiff's failure to respond." No formal judgment was entered. Two weeks later Tobey moved for reconsideration. The judge denied the motion on March 2 in another brief order, which concludes: "A post-ruling response on December 18th is just too late." Again no formal judgment was entered, but both parties treat the March 2 order as the final judgment from which Tobey is appealing. Although the order does not comply with the requirements of Fed.R.Civ.P. 58, it sufficiently indicates Judge Zagel's determination to be done with the case to constitute a final decision for purposes of 28 U.S.C. § 1291. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam); Abbs v. Sullivan, 963 F.2d 918, 923 (7th Cir.1992). Nevertheless we will repeat our ritual request to the district courts to issue separate judgment orders in order to spare us from having to wrestle unnecessarily with issues of appealability.

Page 332

On the merits, the defendants rightly confess error on the learned district judge. Nowhere in Rule 56 is the granting of summary judgment authorized as a sanction for failing to file a timely response to a motion for summary judgment. Rule 56(e) provides that if the adverse party does not respond to the motion, summary judgment shall be entered "if appropriate"--that is, if the motion demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. There are plenty of sanctions for untimely...

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