Kagan v. Caterpillar Tractor Co.
| Decision Date | 07 July 1986 |
| Docket Number | No. 85-2365,85-2365 |
| Citation | 795 F.2d 601 |
| Parties | 40 Empl. Prac. Dec. P 36,322, 5 Fed.R.Serv.3d 325 Marvin KAGAN, Plaintiff-Appellant, v. CATERPILLAR TRACTOR CO., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marc M. Pekay, Chicago, Ill., for plaintiff-appellant.
J. Stephen Poor, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendants-appellees.
Before COFFEY and RIPPLE, Circuit Judges, and WILL, Senior District Judge. *
The plaintiff-appellant, Marvin Kagan, appeals from the district court's order denying his motion to reconsider the court's refusal to reinstate his complaint. We affirm.
Marvin Kagan filed a complaint in November 1983 in the United States District Court for the Northern District of Illinois alleging that the defendants, Caterpillar Tractor Co. ("Caterpillar") and three Caterpillar employees, forced Kagan, then 60 years old, to take early retirement in violation of the Age Discrimination Act ("ADEA"), 29 U.S.C. Sec. 621 et seq., and also discriminated against Kagan because of his Jewish religious beliefs in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. Sec. 2000(e) et seq. Attorneys John Gubbins, Emmanuel Krakauer, and Jerrold Morris each filed at least one appearance on behalf of Kagan. 1
The district court, upon the defendant's motion, transferred the case to the Central District of Illinois, Peoria Division, pursuant to 28 U.S.C. Sec. 1404(a). Following the transfer, the defendant filed a motion to dismiss the individual defendants because they had not been named in an administrative charge of discrimination, a prerequisite to either an ADEA or Title VII suit. In addition, Caterpillar asked the court to strike the plaintiff's prayer for punitive and compensatory damages on the grounds that they are not authorized under ADEA or Title VII actions. (Kagan's complaint also sought declaratory relief as well as backpay and lost pension benefits.) The court set April 27, 1984 as the due date for the plaintiff's response to the motion to dismiss and scheduled a pretrial conference for June 18, 1984. On May 15, almost three weeks after the date the response was due, attorney Gubbins advised the court by letter that the response would be filed "within the week," but a response was never filed. In view of the fact that Kagan's attorney failed to appear at the pretrial conference, the court attempted to contact each of the plaintiff's three attorneys of record, but "no one was available." The day following, the district court issued an oral order dismissing Kagan's action for lack of prosecution, and the plaintiff Kagan failed to appeal the court's dismissal order.
Approximately 10 weeks later, on August 29, Caterpillar filed a petition for costs and attorneys' fees it incurred as a result of "[t]he plaintiff's abuse of judicial process and bad faith," alleging that the plaintiff prosecuted his action as an effort to harass the defendants. In October, the district court scheduled a hearing on the defendants' petition for fees for December 14, 1984. Three days before the scheduled hearing, on December 11, attorney Mark Pekay filed an appearance on behalf of Kagan and filed a motion to reinstate the plaintiff's action. At the hearing, the court heard arguments on the plaintiff's motion to reinstate. Attorney John Gubbins stated that he had experienced many personal problems during the prior year, explaining that he contracted spinal meningitis that "knocked me out through January [1984]" and that the firm he was associated with, "fell apart" at the end of January 1984. He further advised the Court that he had three trials in a 60-day period in the spring of 1984, with one of the trials lasting five weeks. The court asked Gubbins why there was no response filed to the defendant's motion to dismiss after advising the Court in May that a response would be filed in a week. Gubbins replied:
"I was in the middle of that five-week trial on May 18th. And I thought it was going to be over. It proceeded to go another two and a half weeks after that.
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So on May 18th when I told Magistrate Kauffman that I would have something in a week, I did have things in draft form by about the 25th, but I was still on trial. I just couldn't get to him, and I was on trial for a while--well, in the second week in June. I just--I could not get to him.
On that date in June that we were suppose [sic] to show up for the pretrial conference, Mr. Krakauer and I missed our signals."
Gubbins asserted that he received a letter in July from Morris discharging him due to the dismissal of Kagan's case, and Gubbins further stated, "I didn't get back to the court after I was fired because I thought I was fired." 2
Kagan testified at the hearing, reciting that he had spoken to Mr. Gubbins in the latter part of June, 1984, and "he said he didn't make the hearing in Peoria but 'don't worry about it, nothing to be alarmed about it [sic].' " Kagan also related that he was working in Spartanburg, South Carolina, during the summer of 1984, and he learned of the dismissal of his complaint against Caterpillar from a neighbor in Peoria "towards the end of August" of 1984. According to Kagan, he subsequently received a letter from attorney Morris in the middle of July advising Kagan that he (Morris) was arranging for substitute counsel for Kagan. Kagan further testified that Morris failed to inform him at this time that his case had been dismissed, and when Kagan inquired regarding the substitution, a Mr. Heller in Morris' office advised him "that because of non-performance ... they were obtaining substitute counsel." Kagan stated that the attorney Morris initially contacted to act as substitute counsel declined to handle it, and in October, 1984, Kagan asked another attorney, Pekay, if he would "take on the case."
J. Stephen Poor, counsel for the defendants, filed an affidavit attached to the defendant's response to the plaintiff's motion to reinstate reciting that on August 29, 1984, he received a telephone call from a person who identified himself as Mark Pekay. According to the affidavit:
The trial judge denied the plaintiff's motion to reinstate, explaining:
"I think that the first thing that is clear from the record that the conduct of the three attorneys who previously had been employed to represent the plaintiff in this case is absolutely incomprehensible to this court. I realize that lawyers have problems; judges do too. And we all have different periods in our life where we have illnesses, we have marital problems, we have problems with children, financial difficulties, whatever. But as a practicing attorney, when we agree to represent a client, any problems that we may be having personally will be set aside in terms of the matter in which we conduct ourselves in reference to a client. There is no other way that the profession can function.
... I am not only pointing the finger at Mr. Gubbins when I say that. Any attorney who enters his appearance in a case becomes responsible for that case whether you are the lead counsel or someone who is playing a less-active role.
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It is inconceivable to me that the plaintiff was not informed of the fact that his case had been dismissed. It is clear that he was not. I think, if anything, that aggravates the conduct of the attorneys in this case in any event.
We have the dismissal in June. We have the discovery by the defendant--excuse me, by the plaintiff in August that the case had been dismissed. We have Mr. Morris' letter of July. We have a considerable period of time elapsing before any indication is given to this court of any intention to seek to vacate or set aside or reconsider and, quite frankly, under the totality of the circumstances in this case, it is the court's feeling if I were to allow this case to be reinstated that I might as well throw out the rules of civil procedure and the local rules of this court out. I cannot. This court and I don't believe there is a court in the United States that can conduct business under these circumstances. So the motion to reinstate or vacate or reconsider is denied."
The plaintiff filed a motion to reconsider the court's denial of the motion to reinstate. In a subsequent hearing on the motion to reconsider, Jerrold Morris, who did not attend the prior hearing, testified that he learned from Kagan in late August 1984 that the case had been dismissed and thereafter made a number of attempts to discuss the case with Gubbins. Morris stated he contacted a law firm that declined to handle Kagan's case and thereafter arranged for Mr. Pekay to take over the case. Morris stated he was "not a specialist in labor relations" and did not have "the ability to appropriately and properly watch Mr. Gubbins." On cross-examination, Morris admitted that he failed to file a motion to vacate the entry of judgment or to alter or amend the judgment, even though he claimed to have learned of the dismissal in August. Morris further admitted that other than trying to contact Gubbins on numerous occasions and attempting to find substitute counsel, he did fail to file any pleadings or documents with the district court or take other action on behalf of Kagan. The district court denied the motion to reconsider:
"I think it would be fair to say that if the only evidence before the court was the evidence leading up to the dismissal in June, that some type of a prompt notice or motion, some contact with the court with reference to that matter, I would not have any problem...
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