Easley, Cynthia v. Kirmsee, David ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1421
CYNTHIA EASLEY, Individually and
as Administrator of the Estate of
CHRISTOPHER B. EASLEY,
Plaintiff-Appellant,
v.
DAVID KIRMSEE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 938—Thomas J. Curran, Judge.
____________
ARGUED NOVEMBER 7, 2003—DECIDED AUGUST 30, 2004
____________
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Cynthia Easley appeals the
district court’s denial of her motion under Fed. R. Civ. P.
60(b) to vacate its grant of summary judgment against her in
an action under 42 U.S.C. § 1983 against four Wisconsin
local governmental units and a number of their respective
police officers. We affirm.
2 No. 03-1421
I. Background
A Geneva Township, Wisconsin, police officer, David
Kirmsee, shot and killed Christopher Easley on October 26,
2000. The unfortunate incident occurred when Officer
Kirmsee (and the other named defendant officers) responded
to a call placed by Cynthia Easley asking for police help
with her eighteen-year-old son, Christopher, whom Easley
reported had just left her house brandishing a knife and
bleeding profusely from self-inflicted knife wounds. Easley
advised police that Christopher was both emotionally dis-
turbed and intoxicated. Kirmsee and the other law enforce-
ment officers who responded came upon Christopher, knife
in hand, in the middle of a residential neighborhood. Kirmsee
drew his weapon and attempted to convince Christopher to
surrender, but the boy refused to drop the knife and instead
raised the knife threateningly and advanced on Kirmsee.
Initially Kirmsee attempted to retreat, but was forced to
hold his ground when he discovered that he was on uneven
and unfamiliar terrain, without a known route or path of
escape. When Christopher continued to advance, and con-
tinued to ignore warnings to stop and drop the knife, Kirmsee
fired his weapon at Christopher and hit him in the chest,
fatally injuring him.
After a lengthy inquest, a jury finding absolved Kirmsee
of wrongdoing in the shooting. The decedent’s mother,
Cynthia Easley, in spite of this finding, filed suit on behalf
of herself and Christopher’s estate on September 14, 2001,
alleging that Kirmsee violated her son Christopher’s Fourth
Amendment right to be free from unreasonable seizures by
use of excessive force in apprehending him, and also alleg-
ing that the remaining officer-defendants failed to intervene
to prevent Kirmsee’s alleged use of excessive force, and
furthermore that the four defendant local governmental
units failed to train their officers properly to apprehend the
young man without the use of excessive force.
No. 03-1421 3
After the parties voluntarily exchanged initial discovery,
the court held a scheduling conference on December 11,
2001, and announced its pretrial schedule. At the conference,
both parties agreed that, because of the extensive jury in-
quest, resulting in a transcript of some thousand pages con-
sisting of testimony as well as forensic materials relevant to
the shooting incident, both parties had thus garnered much
of the necessary information that would normally be
received through discovery. With this in mind, the court or-
dered an abbreviated discovery schedule focusing on the dis-
closure of expert witnesses: Easley was ordered to disclose her
experts by July 1, 2002, and the defendants were to disclose
their experts by August 1, 2002. The court further desig-
nated August 15, 2002 as the deadline for filing dispositive
motions and ordered that the discovery of all expert wit-
nesses be completed by September 1, 2002, and that all
remaining discovery be completed by December 1, 2002.
Easley’s discovery schedule did not proceed as expeditiously
as previously planned and agreed upon. After making her
required initial disclosures, Easley did nothing further in
relation to discovery until the court’s July 1, 2002 deadline
for disclosure of expert witnesses came and passed. The day
after, on July 2, 2002, Easley moved to extend the deadline
to August 15, 2002 for the disclosure of her experts. The
court granted Easley’s belated request, but only “as to those
experts not needed in connection with any anticipated dis-
positive motions to be filed on August 15, 2002.” The court
further ordered that its original scheduling order was to
remain in full force and effect in all other respects.
The defendants complied and filed motions for summary
judgment within the court-ordered due date, August 15, 2002.
Easley also filed a brief (three-page) motion for summary
judgment that same date, but her motion papers were bar-
ren of any argument—much less any proposed findings of
4 No. 03-1421
fact—in support of her Fourth Amendment claim.1 On
August 15 Easley also disclosed her expert, Dr. George
Kirkham, but failed to include any report or statement of
facts or any opinion by Dr. Kirkham with her disclosure as
mandated in the court’s scheduling order. Not surprisingly,
on September 16, 2002, she moved for additional time to
complete the discovery of expert witnesses so that the
defendants could depose Dr. Kirkham. The court denied
Easley’s motion to reset the discovery schedule, but did al-
low her until October 1, 2002 to file Dr. Kirkham’s report,
and until October 7, 2002 to make the doctor available for
a deposition. The court further ordered that all discovery of
experts must be completed by November 15, 2002, and that
the court’s original scheduling order was in all other respects
to remain in full force and effect.
Easley, however, never did file a response to the defendants’
summary judgment motions (local rule mandated the re-
sponse within thirty days), and on November 26, 2002 (more
than two months after the response due date), the court
granted summary judgment to the defendants. The court
noted Easley’s failure to file a response, adopted the defen-
dants’ findings of fact, and ruled on the merits of defendants’
(unopposed) motions, holding that Easley failed to establish
1
Easley’s summary judgment motion was accompanied by a mo-
tion to amend her complaint and add a claim under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Easley
sought this amendment despite the fact that the district court had set
forth in its scheduling order that all amendments to the pleadings
should be made by January 15, 2002 (eight months before Easley
filed this motion seeking to amend). Easley’s contemporaneously-
filed summary judgment motion addressed only this proposed
amended claim, alleging that the defendants had violated the ADA
by not having procedures in place to accommodate Christopher’s
alleged disability, “serious” “emotional problems.” The district court
denied Easley’s motion to amend her complaint in a separate order
dated October 2, 2002.
No. 03-1421 5
that Kirmsee’s use of force was unreasonable, and, further-
more, that she also failed to prove that the four local gov-
ernment entities’ officers were inadequately trained.
Easley filed a motion to reconsider on December 26, 2002,
arguing that the court’s grant of summary judgment to the
defendants was improper because the parties had not com-
pleted discovery. Easley posited that, when the court granted
extensions on discovery, it implicitly extended the date for
responding to dispositive motions. Easley also attached to
her motion transcripts of the jury inquest and transcripts
of the expert depositions that the parties had taken after
the deadline for filing dispositive motions had passed. Easley
argued that the documents she submitted demonstrated dis-
puted issues of fact that precluded the entry of summary
judgment. Easley did in this instance partially support her
arguments with citations, but only as to the jury inquest,
and not as to the experts’ depositions.
The court denied Easley’s motion, ruling that she failed
to present an adequate excuse for neglecting to file a re-
sponse to the defendants’ motions for summary judgment,
nor any other grounds under Fed. R. Civ. P. 60 “to persuade
the court” to reopen the case.2 The court noted that all the
arguments and evidence Easley cited in her motion for re-
consideration “were available during the briefing period for
the summary judgment motions.” Easley appeals the dis-
trict court’s denial of her Rule 60(b) motion.3
2
Easley filed her motion to reconsider more than ten days after
the court entered final judgment against her, so the court cor-
rectly treated her post-judgment motion as one under Rule 60(b)
instead of Rule 59(e). See Helm v. Resolution Trust Corp., 43 F.3d
1163, 1166-67 (7th Cir. 1995).
3
Easley also asks us to review the court’s grant of summary
judgment. But this decision is not before us, as Easley failed to notice
her appeal within thirty days of the entry of final judgment, see
(continued...)
6 No. 03-1421
II. Analysis
On appeal, Easley raises a most novel argument. She
argues that she was justified in failing to respond to the
defendants’ summary judgment motions because the court
somehow led her attorney to believe that it had implicitly
extended her response deadline in granting her motions for
extensions of discovery. She contends that the court sent
her mixed signals that justified her attorney’s neglect in
complying with the deadline mandated in the local rule
dealing with the filing of responses to summary judgment
motions.4 She argues that, under these circumstances, sum-
mary judgment was improper and the court abused its
discretion when it refused to grant her Rule 60(b) motion
and vacate its summary judgment against her.
We evaluate a court’s decision to deny relief under Rule
60(b) only for an abuse of discretion. Castro v. Bd. of Educ.,
214 F.3d 932, 934 (7th Cir. 2000). We agree that the trial
judge correctly treated Easley’s motion as one under
Rule 60(b)(1), which allows the trial judge to vacate a final
3
(...continued)
Fed. R. App. P. 4(a)(1), and did not file any motions that would
have tolled the time to file her appeal, see Fed. R. App. P. 4(a)(4).
Thus we review only the court’s denial of her Rule 60(b) motion.
Castro, 214 F.3d at 934.
4
The defendants contend that Easley waived this argument by
not presenting it to the district court in her motion to reconsider.
See Swaim v. Molton Co., 73 F.3d 711 (7th Cir. 1996). Although
Easley’s argument on appeal varies slightly from the one she pre-
sented to the district court, we think this is a distinction without
a difference. At heart, Easley’s argument both in the district court
and on appeal is that summary judgment was improper because
the court was aware that discovery was incomplete and that the
court misled her into assuming that the deadline for filing respon-
sive motions was at least coterminous with the close of discovery.
We see no reason to find waiver here.
No. 03-1421 7
judgment based on “mistake, inadvertence, surprise, or ex-
cusable neglect.” Fed. R. Civ. P. 60(b)(1); Castro, 214 F.3d
at 934. A trial judge’s decision to grant or deny relief under
Rule 60(b)(1) is discretionary, and our review, therefore, is
extremely deferential. Castro, 214 F.3d at 934.
On the basis of the record presented, we are convinced
that the trial court did not abuse its discretion in denying
Easley’s motion. The court’s orders regarding pretrial dead-
lines were unambiguous, clear, direct and straightforward.
The court delineated and set forth the date for filing dis-
positive motions at the scheduling conference, and never
deviated from its August 15, 2002 deadline. When Easley
sought additional time to disclose her experts on July 2, 2002,
the court granted her request, but only “as to those experts
not needed in connection with any anticipated dispositive
motions to be filed August 15, 2002.” When Easley again
sought additional time, this time to complete disclosure of
her expert witness on September 16, 2002—more than a
month after dispositive motions were due and about the
time her response to the defendants’ summary judgment
motions was due—the court once again gave her additional
time to schedule a deposition and file her expert reports,
but stated that its original scheduling order was otherwise
to remain intact. The court’s orders were neither ambiguous
nor confusing, and there was nothing contradictory in the
court’s orders that would or should cause a diligent,
conscientious, intelligent, qualified and well-trained attorney
to misinterpret, much less be misled by the court’s directives.
Furthermore, we also note that counsel at no time asked
the court for any clarification of any order. Simply put, from
our reading of the record, the court did not contribute in
any manner to Easley’s attorney’s neglect in following the
court’s deadline to respond to the defendants’ motions for
summary judgment.
8 No. 03-1421
Even if we were to view Easley’s attorney’s failure to
respond to the defendants’ summary judgment motions as
even partially justified by contradictory signals from the
court, and therefore “within the gray area between careless-
ness and excusable neglect,” it was Easley’s attorney’s
responsibility to seek clarification from the court before
attempting to make self-serving unilateral assumptions about
the court’s adjustment of the pretrial calendar. Hough v.
Local 134, Int’l Bhd. of Elec. Workers, 867 F.2d 1018, 1022
(7th Cir. 1989); see also Bohlin Co. v. Banning Co., 6 F.3d
350, 357 (5th Cir. 1993) (“A party has a duty of diligence to
inquire about the status of a case.”). Although attorney
carelessness can constitute “excusable neglect” under Rule
60(b)(1), see Castro, 214 F.3d at 934; Robb v. Norfolk & W.
Ry. Co., 122 F.3d 354, 359-60 (7th Cir. 1997), attorney in-
attentiveness to litigation is not excusable, no matter what
the resulting consequences the attorney’s somnolent behavior
may have on a litigant. See Robb, 122 F.3d at 360; Helm v.
Resolution Trust Corp., 84 F.3d 874, 878 (7th Cir. 1996); In
re Plunkett, 82 F.3d 738, 742 (7th Cir. 1996) (“Missing a filing
deadline because of slumber is fatal.”). Easley’s attorney’s
conduct can only be classified as inexcusable inattentiveness
or neglect, rather than excusable carelessness. Indeed, a trial
court has an obligation to control and manage its own
docket, and this type of outright and consistent disregard of
a court’s scheduling orders—such as that exhibited here by
Easley’s attorney—certainly gives the trial court sufficient
reason under Fed. R. Civ. P. 41(b) to involuntarily dismiss
an action for want of prosecution. See, e.g., Aura Lamp &
Lighting , Inc. v. Int’l Trading Corp., 325 F.3d 903, 909-10
(7th Cir. 2003) (holding that the power to control a court’s
docket is vested in the trial judge, and that there comes a
point when a litigant’s disregard of scheduling orders be-
comes so serious that a sanction, including the rendering of
the ultimate sanction of dismissal, is in order); Williams v.
Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (per
curiam) (“District courts inherently possess the authority to
No. 03-1421 9
dismiss a case sua sponte for want of prosecution. Such a
dismissal is one of the tools available to district courts ‘to
achieve the orderly and expeditious disposition of cases.’ ”
(internal citations omitted)). Easley’s attorney’s record of
conduct here in failing to prosecute her case in a lawyer-like
fashion approaches a “clear record of delay or contumacious
conduct” that would justify such a dismissal. See Williams,
155 F.3d at 857 (citing Dunphy v. McKee, 134 F.3d 1297, 1299
(7th Cir. 1998)). In a nutshell, Easley is asking us to bail
her out and excuse her counsel’s neglect of the case and
contemptuous conduct in an attempt to shift the blame for
her attorney’s inattentiveness to the district court, and this
we refuse to do. Tango Music, LLC v. Deadquick Music, Inc.,
348 F.3d 244, 247 (7th Cir. 2003); Jovanic v. In-Sink-Erator
Div. of Emerson Elec. Co., 201 F.3d 894, 897 (7th Cir. 2000);
Bohlin Co., 6 F.3d at 356-57.
Easley repeats her prior argument, that the court im-
providently granted summary judgment before allowing her
to complete her discovery and thus denied her a sufficient
opportunity to respond to the defendants’ motions for
summary judgment. In light of the numerous extensions the
district court so generously granted Easley in order to
provide her with an opportunity to complete her overdue
discovery, notwithstanding her counsel’s dilatory approach
to the litigation, this argument is disingenuous at best, and
borders on being frivolous. Furthermore, she and her
counsel fail to offer any logical and acceptable reason in ex-
planation of why the only discovery not completed when the
court granted summary judgment—the conclusions of her’s
and the defendants’ expert witnesses—was even relevant or
necessary to her response to the defendants’ motions. Thus,
we are at a loss to understand why she needed further
discovery before filing her response.
We do not agree with Easley that her case is analogous to
those she relies on in her brief, Farmer v. Brennan, 81 F.3d
1444 (7th Cir. 1996) and First Chicago International v.
10 No. 03-1421
United Exchange Co., 836 F.2d 1375 (D.C. Cir. 1988). In
each of the factual situations she refers to, the trial courts’
grant of summary judgment was improper because, at the
time of the granting of the summary judgment motion, the
litigants were awaiting responses to outstanding discovery
requests from reluctant defendants who were withholding
facts necessary for the litigants to oppose summary judg-
ment. Farmer, 81 F.3d at 1450-51; First Chi. Int’l, 836 F.2d at
1381; see also Harrods Ltd. v. Sixty Internet Domain Names,
302 F.3d 214, 243-47 (4th Cir. 2002). The examples that she
relies upon are far afield and certainly not analogous to the
situation before us. The defendants before us were forth-
coming and responsive to all of Easley’s discovery requests;
indeed, it was Easley and her counsel, for reasons unex-
plained, who did not follow the discovery schedule and failed
to disclose her experts in a timely fashion. Additionally, never
once did Easley, not even in her Rule 60(b) motion, explain to
the court why she needed expert testimony to reply to the
defendants’ motions. If the conclusions of her expert were
necessary to respond to the motions, she had every opportu-
nity to file an affidavit with the court under Fed. R. Civ. P.
56(f) detailing and explaining why she needed the additional
discovery. Grayson v. O’Neill, 308 F.3d 808, 815 (7th Cir.
2002); Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058
n.5 (7th Cir. 2000); accord Cacevic v. City of Hazel Park, 226
F.3d 483, 488-89 (6th Cir. 2000); Roark v. City of Hazen, 189
F.3d 758, 762 (8th Cir. 1999); Lorenzo v. Griffith, 12 F.3d 23,
27 n.5 (3d Cir. 1993); Kendall v. Hoover Co., 751 F.2d 171,
175 (6th Cir. 1984). Her two requests for extensions of time to
disclose her expert, without more, were insufficient to “serve[ ]
as the functional equivalent of an affidavit” under Rule 56(f),
First Chi. Int’l, 836 F.2d at 1380, and alert the district court
that summary judgment may have been premature. See,
e.g., Cacevic, 226 F.3d at 488-89.
We hold that the trial judge properly exercised his dis-
cretion when he denied Easley’s Rule 60(b) motion and de-
No. 03-1421 11
clined to vacate his grant of summary judgment in favor of
the defendants.5 The trial judge was entitled to expect Easley
and her counsel to comply with his clear and straightfor-
ward pretrial scheduling orders and filing deadlines, and
when compliance was not forthcoming, the trial judge was
empowered to end the litigation by ruling on the merits of
the defendants’ unopposed motions for summary judgment.
We refuse to tie the trial judge’s hands and take away one
of the tools necessary to enforce his scheduling orders and
organize his trial calendars. It is regrettable that Easley,
either through her own or her attorney’s negligence, or per-
haps a combination of both, may very well have missed an
opportunity to pursue what may possibly have been a mer-
itorious cause of action (we express no opinion as to the merits
of her claim). However, “[c]lients must be held accountable
for the acts and omissions of their attorneys.”6 Pioneer Inv.
Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 396
(1993); see also Tango Music, 348 F.3d at 247 (“If the
lawyer’s neglect protected the client from ill consequences,
5
Easley’s alternate request for relief, under Rule 60(b)(6)’s catchall
provision, for “any other reason justifying relief from the operation
of the judgment,” is unavailable when attorney negligence is at
issue. See Helm v. Resolution Trust Corp., 84 F.3d 874, 879 (7th
Cir. 1996). Thus we do not address this argument.
6
We note with disapproval the lackadaisical and questionable
conduct of Easley’s attorney in this case. The Model Rules of
Professional Responsibility require an attorney to “act with rea-
sonable diligence and promptness in representing a client.” Model
Rules of Prof ’l Conduct R. 1.3 (2002). Easley’s attorney’s conduct
fell vastly short of meeting his required level of professional re-
sponsibility in this case. But Easley cannot employ her attorney’s
unprofessional conduct as a mechanism for reopening her cause
of action against the defendants. “If a party’s lawyer is guilty of
professional malpractice . . . the party has a remedy against him,
but it should not be permitted to shift the burden of its agent’s
neglect to the district court and the defendants.” Tango Music,
348 F.3d at 247.
12 No. 03-1421
neglect would become all too common. It would be a free
good.” (quoting United States v. 8136 S. Dobson St., 125
F.3d 1076, 1084 (7th Cir. 1997))). Therefore, the decision of
the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-30-04