Harrington v. City of Chicago

• Decision Date: 03 January 2006
• Docket Number: No. 04-4326.,04-4326.
• Citation: 433 F.3d 542
• Parties: Richard F. HARRINGTON, Tavares Harrington, Tyjuan Kidd, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Officer Delgado, Officer Moran, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

433 F.3d 542

Richard F. HARRINGTON, Tavares Harrington, Tyjuan Kidd, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Officer Delgado, Officer Moran, et al., Defendants-Appellees.

No. 04-4326.

United States Court of Appeals, Seventh Circuit.

Argued December 2, 2005.

Decided January 3, 2006.

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T. Lee Boyd, Jr. (argued), Chicago, IL, for Plaintiffs-Appellants.

Myriam Zreczny (argued), Office of the Corporation Counsel Appeals Division, Chicago, IL, Thomas J. Platt, City of Chicago Law Department, Chicago, IL, for Defendants-Appellees.

Before BAUER, POSNER, and MANION, Circuit Judges.

MANION, Circuit Judge.

Claims of excessive force by police officers are at the heart of this suit brought under 42 U.S.C. § 1983. However, before the merits could be heard, the repeated inattention of the plaintiffs' attorney to the case caused the district court to dismiss it for want of prosecution. The attorney, T. Lee Boyd, Jr., then moved, on behalf of his clients, to vacate the dismissal. The district court denied the motion, and we affirm.

I.

In January 2003, Richard Harrington, Tavares Harrington, Tyjuan Kidd, and Brenda Johnson sued the City of Chicago and several of its police officers (collectively "the City"), asserting claims of excessive force and related claims. The district court set the scheduling conference in the case for September 16, 2003. The district court also ordered the parties to exchange material documents in advance of the conference.

The plaintiffs' attorney, T. Lee Boyd, Jr., failed to appear at the conference and did not provide any documents as ordered. Without such documents, the City had no information about the damages that the plaintiffs were claiming. As a result, the district court explicitly ordered the plaintiffs to disclose medical records or other information concerning their purported damages. The district court also scheduled a status conference for October 22, 2003, and issued the following warning: "Failure of counsel for plaintiffs to appear at that conference will result in a dismissal of the case for want [of] prosecution."

Boyd appeared for the status conference, and the district court called Boyd's attention to his absence at the scheduling conference. Boyd only offered this explanation: "Judge, what happened was, Judge, I had just gotten back in town. It didn't get on my call. I didn't recognize — realize, Judge, until later. So I apologize for that." As far as information on damages, Boyd gave the City some pictures of bruises allegedly inflicted by the defendant officers but no medical records, even though some of the plaintiffs were allegedly hospitalized after the underlying incident. The district court continued the status conference until April 28, 2004, two days before the discovery cutoff date.

Over the next several months, matters did not go well. Boyd and his clients missed several deposition dates without explanation. The City's written discovery requests went unanswered as did the City's inquiries into why Boyd and his clients were not responding or otherwise participating in discovery. As the end of the discovery period approached, Boyd had disclosed nothing but the aforementioned photographs. Boyd did not communicate with opposing counsel or the district court to explain his inattention to discovery or to seek any adjournments/extensions. While in some instances he had grounds to request extensions of time (e.g., death in the family), he repeatedly did not do so. In sum, Boyd simply ignored the case for months on end.

When the April 28 date for the status conference arrived, Boyd again failed to appear. In his absence, Boyd sent a paralegal. Defense counsel recounted Boyd's inactivity during discovery for the district court and stated that, despite making many attempts, "I've had no contact, no response, no participation whatsoever from the plaintiffs on this case." When Boyd's paralegal attempted to respond, in open court, the district court refused to hear from the paralegal, stating, "I do not permit the unauthorized practice of law." The district court then ruled: "This case is dismissed for want of prosecution because of the complete and consistent failure of plaintiff to cooperate in discovery." A written judgment to this effect was entered on April 29.

On May 10, Boyd responded by filing a "motion to vacate the court's order of April 28, 2004 dismissing the instant matter for want of prosecution." In the motion, Boyd cited no authority, not even a federal rule. The motion recounted some dates, offered some excuses, and promised future cooperation. After a hearing¹ and further briefing, the district court construed the motion as filed under Fed.R.Civ.P. 60(b) and then denied it. Boyd, on behalf of his clients, appeals.

II.

Because Boyd's post-judgment motion is so vague, the first matter to address is whether the motion should be treated as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e), as Boyd now requests, or as a motion for relief under Rule 60(b), as the district court treated it. Altering or amending a judgment under Rule 59(e) is permissible when there is newly discovered evidence or there has been a manifest error of law or fact. See Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.2000). Vacating a judgment under Rule 60(b) is permissible for a variety of reasons including mistake, excusable neglect, newly discovered evidence, and fraud. See Fed.R.Civ.P. 60(b). While the two rules have similarities, "Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances." Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir.2005) (quotation omitted). Rule 59(e), by contrast, requires that the movant "clearly establish" one of the aforementioned grounds for relief. Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 n. 3 (7th Cir.2001). Regardless, we review decisions under each rule only for abuse of discretion. See id.

Because Boyd filed the motion within ten days of the entry of judgment, the motion could procedurally qualify as a Rule 59(e) motion. See Fed.R.Civ.P. 59(e); Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993) (citing Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986)). The district court, however, evaluated Boyd's motion as a Rule 60(b) motion because "the only arguable basis for relief presented in the motion is Rule 60(b)'s `excusable neglect.'" This assessment is correct. What is more, Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures," which is precisely what Boyd attempts in the motion here. Bordelon, 233 F.3d at 529 (quotation omitted). Boyd's motion is simply a plea for the district court to excuse his neglect in prosecuting this case; as such, the motion advances no grounds to support Rule 59(e) relief. See id. Furthermore, as was the case in Ball v. City of Chicago, "[t]he motion in this case not only did not mention Rule 59(e); it was not captioned a motion to alter or amend judgment, which is the language of that rule, and indeed used the word `vacate,' which is the language of Rule 60(b)." 2 F.3d at 760. On this point, our admonition in Ball bears repeating here: "If a litigant wants the benefit of whatever lower threshold of proof Rule 59(e) may offer, it behooves him to indicate that his motion is under Rule 59(e)." Id. For these reasons, the district court properly reviewed Boyd's motion under Rule 60(b), specifically, Rule 60(b)(1), which covers excusable neglect. See id.

"[T]rial judges are vested with discretion when determining whether an attorney's neglect ... is `excusable' for purposes of Rule 60(b)(1)," Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 363 (7th Cir.1997), and "our review is, therefore, extremely deferential." Castro v. Bd. of Educ., 214 F.3d 932, 934 (7th Cir.2000). "Although attorney carelessness can constitute `excusable neglect' under Rule 60(b)(1), attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney's somnolent behavior may have on a litigant." Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir.2004) (internal citations omitted).

Turning to Boyd's proffered excuses, he first contends that he and his clients did not respond to discovery requests and did not appear for noticed depositions during the October 2003 to April 2004 discovery period because criminal charges (aggravated battery of police officers) related to the underlying incident in this case were pending during that entire period against two plaintiffs, Richard and Tavares Harrington. As for the other two plaintiffs, Johnson was not subject to criminal proceedings, and criminal charges against Kidd had already been dismissed. Per Boyd's request at the October 2003 conference, the district court stayed the Harringtons' depositions until February 1, 2004, due to their ongoing criminal cases which, at that juncture, had been pending for eighteen months and which Boyd predicted would be tried in January 2004. As it turned out, the charges remained pending until July 2004, when the Harringtons pleaded guilty. Boyd, however, never sought an extension of the stay nor an extension of the discovery period.

The district court's stay was straightforward and limited: "It is ordered that the depositions of the Harrington plaintiffs' [sic] are stayed until after 2/1/04." Importantly, the district court did not stay other forms of discovery (e.g., interrogatories, document requests) or the depositions of Kidd and Johnson. Accordingly, the pendency of the Harringtons' criminal cases and the corresponding stay did not justify the failure to respond to the City's written discovery requests throughout the discovery period nor the failure to show up for the Kidd and Johnson deposition dates in December 2003 and the rescheduled dates in March 2004. Had Boyd believed the stay was too narrow, he could have moved to expand it to include additional...