Martinez v. City of Chicago

• Decision Date: 28 August 2007
• Docket Number: No. 06-3739.,06-3739.
• Citation: 499 F.3d 721
• Parties: Rocio MARTINEZ, Plaintiff-Appellant, v. CITY OF CHICAGO, Sergio Escobedo, Fernando Garcia, and Jose Mendez, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

499 F.3d 721

Rocio MARTINEZ, Plaintiff-Appellant, v. CITY OF CHICAGO, Sergio Escobedo, Fernando Garcia, and Jose Mendez, Defendants-Appellees.

No. 06-3739.

United States Court of Appeals, Seventh Circuit.

Argued April 30, 2007.

Decided August 28, 2007.

Nicholas D. LaPonte (argued), LaPonte & Associates, Chicago, IL, for Plaintiff-Appellant.

Mara S. Georges, Robert L. Schultz (argued), Office of the Corporation Counsel Appeals Division, Michael D. Robbins, Robbins & Associates, Chicago, IL, for Defendants-Appellees.

Before ROVNER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

This case has its roots in a domestic disturbance that erupted on August 14, 2003, between plaintiff, Rocio Martinez, and her former boyfriend, Jose Mendez. After the two argued, Mendez became violent as Martinez left his house. Martinez called the Chicago police and filed a report. Two days later, Mendez visited his friend Officer Sergio Escobedo of the CPD; Escobedo and Sergeant Fernando Garcia then arrested Martinez and accused her of violence against Mendez. Those charges were dropped, and in time Martinez filed this § 1983 action against the City of Chicago, Escobedo, Garcia, and Mendez, raising various complaints about the arrest.

None of those claims is before this court, however, because the district court dismissed them for failure to prosecute after Martinez's lawyer, Nicholas LaPonte, repeatedly failed to attend status hearings, filed pleadings and responsive papers after the deadlines set by the court, did not turn over discovery materials, and failed to comply with the conditions set by the court for reinstatement. After clarifying which of the district court's orders are properly before us, we conclude that Judge Zagel did not abuse his discretion in refusing to find that LaPonte's neglect was excusable. If Martinez still wants her day in court, it will have to be in a legal malpractice action.

I

Martinez initially filed her suit in the Circuit Court of Cook County, but the City of Chicago removed it to federal court on October 29, 2004. (Although there are four defendants in this suit, their interests do not differ for purposes of this appeal; we will refer to them collectively as "the City.") LaPonte was inattentive to Martinez's case from the start. He submitted three filings late, after deadlines set by the court. Three times he was a "no-show" in court, missing status hearing on April 18, October 11, and November 8, 2005. Following LaPonte's failure to appear on November 8, 2005, the court dismissed Martinez's case for want of prosecution, without prejudice to Martinez's seeking reinstatement on or by December 27, 2005.

This action got LaPonte's attention; on November 17, 2005, he moved for the case to be reinstated, and the district court obliged. Unfortunately, LaPonte's performance did not improve. At the November 17 status hearing, he represented that Martinez was ready to provide her overdue Rule 26(a) disclosures, saying, "Judge, we are ready to move on discovery, ready to go." He promised to furnish them within "a week or so." It was not until almost seven weeks later, however, that he finally turned over any materials. On the night before the January 5, 2006, status hearing, LaPonte produced discovery materials that the City had originally produced to Martinez. These materials did not include any information about damages. To make matters worse, LaPonte failed to attend the January 5 status hearing. In response to these renewed transgressions, the court issued an order reading as follows:

Plaintiff is ordered, within 14 days, until 1/20/2006, to supplement Rule 26(a)(1) disclosure to properly comply with the rule .... Plaintiff is also ordered, within 14 days, until 1/20/2006, to provide a computation of damages as specified by Rule 26(a)(1)(C). Failure to comply with this order will result in plaintiff's case being dismissed with prejudice for want of prosecution.

For unknown reasons, this order was not entered onto the docket until January 24, 2006. LaPonte claimed that he did not receive a copy of it in the mail until February 2, 2006. Once he did receive it, he apparently paid no attention to the January 20 due date. LaPonte did not contact the court or otherwise comply with the discovery order until the morning of February 9, 2006, when he faxed another set of incomplete disclosures to the City. Yet again, he failed to appear at that day's status conference, sending in his stead James Macchitelli — an attorney who had not filed a notice of appearance. The district court regarded this as unsatisfactory. At the close of the February 9 hearing, it followed up on its threat of dismissal and entered a minute order noting that the case was "dismissed for want of prosecution. Civil case terminated."

On February 23, 2006, Martinez moved "pursuant to Rules 59 or alternatively 60" for the court to reconsider or vacate its order of dismissal. The Rule 59(e) motion argued that the order of dismissal rested on a mistake of fact, namely, that opposing counsel had notified Martinez of the January 20 deadline for disclosures in the district court's order. The Rule 60(b)(1) motion submitted that Martinez's neglect was excusable, given the late date at which she actually became aware of the deadline for producing the Rule 26(a) disclosures. The court took her request for reinstatement under advisement on March 2, 2006. In so doing, Judge Zagel informed LaPonte that "the only conditions under which I would conceivably think of reinstating the case include the payment of the fees and costs attendant to the wheel spinning that the lawyers for the defense had to do in this case, and also upon your client's retention of an additional lawyer other than yourself." The accompanying minute order further specified that "[p]laintiff's request for reinstatement is taken under advisement upon the terms and conditions stated in open court. Costs estimates by defendants to plaintiff due by 3/7/2006. Plaintiff's response to defendants due 3/14/2006."

Even with the fate of the dismissal in the balance, LaPonte's compliance with the conditions imposed by the court was slipshod. He did not satisfy either of the conditions within the time schedule set by the judge. As of the April 27, 2006, status conference, the parties were still squabbling over Martinez's payment of the monetary portion of the court's order. (LaPonte never paid the City's costs, only its fees.) The second attorney, Ronald Belmonte, did not enter an appearance for Martinez until April 13, 2006, and, at that time, he still had not been admitted to practice before the Northern District of Illinois or been admitted pro hac vice. Finally, although the court set a briefing schedule for the motions to vacate the judgment, and the City's response was filed on May 11 Martinez failed to respond by the status hearing on June 6, 2006. At that hearing, LaPonte claimed not to have received the City's brief.

The district court denied Martinez's motion to reconsider on July 6, 2006, declaring in open court that "So I have reconsidered the motion to dismiss that I previously made and in that sense I granted the motion to reconsider. And having reconsidered, I adhere to my ruling because I find as a matter of fact in this Rule 60 hearing the neglect which led to this time was not excusable." The court explained,

Plaintiff's counsel's conduct in prosecuting this case constitutes inexcusable neglect. Counsel's inability to meet court-imposed deadlines, even after the second dismissal for want of prosecution, was not mere inattentiveness. There is no reasonable excuse for counsel's neglect of this case, and the delays imposed costs not only on his client but on the parties named as defendants.

To this end, the court noted Martinez's (1) failure to respond to the initial motion to dismiss by the due date, without requesting an extension; (2) failure to respond to a second motion to dismiss with anything other than the second amended complaint, which was not a timely response; (3) multiple failures to appear in court; and, perhaps most importantly, (4) dilatory behavior after the case was already on its deathbed — after it had been dismissed a second time — in failing to comply with the schedule set by the court for paying fees and finding additional counsel. The following day, July 7, 2006, a separate entry was made in the docket on form AO 450, which is used for Rule 58 judgments in civil cases: "IT IS HEREBY ORDERED AND ADJUDGED that this case is dismissed for want of prosecution with prejudice. Plaintiff takes nothing from the defendants."

On July 20, 2006, Martinez filed a second motion under Rule 59(e), asking the court to reconsider its order of July 6 dismissing the case, and arguing that La Ponte had complied with the conditions set by the court on March 2, 2006. (This motion was never docketed.) On August 15, 2006, Martinez filed a supplement to her Motion to Reconsider, purporting to introduce newly discovered evidence in the form of a note from co-counsel Macchitelli to LaPonte detailing a phone conversation with counsel for the City. The district court denied the Rule 59(e) motion as time-barred on September 14, 2006, and further noted that if it were to have considered the merits, it would still have denied the motion.

II

Although both parties agree that this court has appellate jurisdiction over at least some of the orders entered by the district court, that fact does not relieve this court of the responsibility of ensuring that jurisdiction exists. Moreover, there is a dispute over which orders are properly before us, of the three that Martinez listed in the Notice of Appeal. Under FED. R APP. P. 4(a)(1)(A), a Notice of Appeal must be filed within 30 days of the entry of judgment. The time to appeal can be tolled either by a motion "to alter or amend the judgment under Rule 59," which must be made within 10 days under Rule 59(e), or by a motion ...