Halas v. Consumer Services, Inc.
| Decision Date | 07 February 1994 |
| Docket Number | No. 92-2921,92-2921 |
| Citation | 16 F.3d 161 |
| Parties | 64 Fair Empl.Prac.Cas. (BNA) 7, 63 Empl. Prac. Dec. P 42,831, 28 Fed.R.Serv.3d 400 James C. HALAS, Plaintiff-Appellant, v. CONSUMER SERVICES, INCORPORATED, an Illinois Corporation in involuntary dissolution, Circulation Promotions, Incorporated, an Illinois Corporation in involuntary dissolution, Marketing USA, Incorporated, an Illinois Corporation in involuntary dissolution, John F. Ryan, an individual, and Chicago Tribune Company, an Illinois Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steven J. Plotkin (argued), Plotkin & Jacobs, Chicago, IL, for plaintiff-appellant.
Howard L. Mocerf, Borovsky & Ehrlich, John W. Powers (argued), Amy P. Hartman, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendants-appellees.
Before BAUER and EASTERBROOK, Circuit Judges. 1
--thankfully. Metropolitan Life Ins. Co. v. Estate of Cammon, 929 F.2d 1220, 1224 (7th Cir.1991). In the instant case, James Halas filed a two count employment discrimination complaint against Consumer Services, Inc., Circulation Promotions, Inc., Marketing USA, Inc. and John F. Ryan (collectively, the "Ryan defendants") and the Chicago Tribune Company (the "Tribune"). The complaint alleged that Halas was fired because of his age and that the firing constituted a retaliatory discharge. After twenty-one months of fruitless and unproductive litigation, Halas failed to attend his deposition, which had been repeatedly rescheduled to accommodate him. The district court found that Halas' failure to comply with discovery and other orders of that court were willful. As a result, the district court granted the joint motion to dismiss of the Ryan defendants and the Tribune pursuant to Rule 37(b) of the Federal Rules of Civil Procedure and dismissed the action with prejudice. We affirm.
Because the issue in this case is Halas' lack of prosecution, we review the events comprising the twenty-one month life of this lawsuit. See Lockhart v. Sullivan, 925 F.2d 214, 218 (7th Cir.1991) (citing Lowe v. City of East Chicago, 897 F.2d 272, 274 (7th Cir.1990)). For a brief period, this litigation followed a normal course. The complaint was filed on October 28, 1990. By February 15, 1991, the Tribune and the Ryan defendants had filed their answers to the complaint, three status hearings had been held, and both parties filed written discovery requests. On April 17, 1991, the Tribune and the Ryan defendants deposed Halas. The deposition was not completed on this date, and the Tribune and the Ryan defendants indicated to Halas that at least one more day was needed to complete the deposition. In addition, the Tribune and the Ryan defendants asked Halas to produce certain documents included in their document requests that he had not yet produced.
It was after Halas' partial deposition that these proceedings began to stagger. In May, 1991, Halas' attorney withdrew from the case. From May through September, 1991, Halas appeared at status hearings and represented that he was on the verge of retaining counsel; during this time, the Tribune, the Ryan defendants, and the district court agreed to delay the proceedings until Halas secured new representation. Finally, in October, Halas retained new counsel.
At this point, the Tribune and the Ryan defendants served written discovery requests and stated that they would continue Halas' deposition after Halas produced documents in response to the discovery requests. Then, the district court set January 31, 1992, as the close of discovery and directed the parties to submit a pretrial order by March 2, 1992. On December 26, 1991, however, Halas filed a motion for extension of discovery due to possible side effects from medication taken by Halas as a result of his voluntary participation in a medical study by a local hospital from September, 1991, through January, 1992. The Tribune and the Ryan defendants did not object to Halas' motion, which was granted, and the district court extended discovery to March 30, 1992, and set the new date for the final pretrial order for May 18, 1992.
Even after all these accommodations to Halas, this litigation continued to languish. The Tribune and the Ryan defendants had set the date for Halas' deposition for February 5, 1992, but because Halas had failed to produce documents requested in the October discovery requests until two days before the deposition, it was postponed until later that month. At this point, the Tribune and the Ryan defendants reiterated a position it had pressed the previous summer that the lawsuit was frivolous and that, if they prevailed, they would seek attorneys' fees. Later that month, Halas' attorney withdrew from the case the day before Halas was to be deposed, 2 prompting another postponement of Halas' deposition.
In her final act, Halas' attorney informed the district court that Halas intended to seek yet another lawyer to continue the action. After Halas failed to appear at a March status hearing, the district court vacated the previous discovery deadline and set a status hearing for April. At that April status hearing, the district court explained to Halas his potential liability if he continued to pursue a frivolous legal claim. At a June status hearing, Halas, for the first time, requested court-appointed counsel; his motion was denied, and he was told by the district court that "with or without a lawyer" it was his responsibility to prepare the case for trial. The court also told Halas that he must make himself available for his deposition or suffer dismissal of the action for lack of prosecution.
On June 5, 1992, the Tribune and the Ryan defendants noticed Halas' deposition to commence on June 23, 1992 at 10:00 a.m. A copy of the notice of deposition was mailed to Halas that day, which he admitted receiving. On June 23, 1992, however, Halas failed to show for his deposition. Counsel for the defendants attempted to contact Halas at his home, but, unable to reach him, could only leave him a message on his answering machine.
The Tribune and the Ryan defendants immediately filed a motion to dismiss for failure to prosecute pursuant to Rules 37 and 41. 3 The parties appeared before the district court on June 29; Halas admitted that he had received the notice of deposition, but offered no reason for his failure to appear or to contact opposing counsel. The district court gave Halas one week to respond in writing to the motion to dismiss. Halas' written submission to the court did not explain his failure to appear at the deposition or to contact opposing counsel, but did make several groundless accusations of the Tribune and the Ryan defendants 4 and stated that he continued to seek legal representation. Finally, at the last status hearing in this case, held on July 9, 1992, the district court granted the defendants' motion to dismiss for lack of prosecution.
Against this backdrop, we must decide whether the district court erred in dismissing Halas' case for lack of prosecution. We review the dismissal of an action for failure to prosecute only for an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Profile Gear Corp. v. Foundry Allied Indus., Inc., 937 F.2d 351, 353 (7th Cir.1991); Lockhart v. Sullivan, 925 F.2d 214, 217 (7th Cir.1991). In addition, we review any findings of fact by the district court under the clearly erroneous standard. Profile Gear, 937 F.2d at 353; United States v. Di Mucci, 879 F.2d 1488, 1494 (7th Cir.1989). A plaintiff's failure to prosecute usually entails his failure to comply with our court system's rules of discovery; Rule 37 of the Federal Rules of Civil Procedure addresses a party's failure to comply with discovery requirements. In his brief, Halas argues that the district court, in dismissing the action, did not follow the dictates of Rule 37 and that the Tribune and Ryan defendants failed to comply with the district court's local rules in filing its motion to dismiss. Each of these arguments fails.
Rule 37(b) provides that a district court may impose various sanctions on a party who fails to comply with a court order. These sanctions enable a district court to prevent the parties to a lawsuit from "unjustifiably resisting discovery." Fed.R.Civ.P. 37 advisory committee's note (1970 amend.). Specifically, Rule 37(b)(2) provides:
If a party ... fails to obey a court order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (C) An order ... dismissing the action or proceeding or any part thereof....
Halas argues that there was no court order with which he failed to comply and that there was no showing of willfulness, bad faith or fraud with respect to his failure to attend his deposition. We specifically rejected the identical argument in similar circumstances in Tamari v. Bache & Co. (Lebanon) S.A.L., 729 F.2d 469 (7th Cir.1984). First, a formal, written order to comply with discovery requests is not required under Rule 37(b); an oral directive from the district court provides a sufficient basis for Rule 37(b)(2) sanctions if it unequivocally directs the party to provide the requested discovery. Tamari, 729 F.2d at 472 (citations omitted); see Charter House Ins. Brokers, Ltd. v. New Hampshire Ins. Co., 667 F.2d 600, 604 (7th Cir.1981); Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (8th Cir.1992); Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir.1991).
In this case, the district court gave Halas such an unequivocal directive. After exhibiting extraordinary patience...
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