Martinez, Rocio v. City of Chicago ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3739
ROCIO MARTINEZ,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, SERGIO ESCOBEDO,
FERNANDO GARCIA, and JOSE MENDEZ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6974—James B. Zagel, Judge.
____________
ARGUED APRIL 30, 2007—DECIDED AUGUST 28, 2007
____________
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 boy-
friend, Jose Mendez. After the two argued, Mendez be-
came 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 Marti-
nez filed this § 1983 action against the City of Chicago,
2 No. 06-3739
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 plead-
ings 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 reinstate-
ment. 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 hearings on April 18, October 11,
and November 8, 2005. Following LaPonte’s failure to
appear on November 8, 2005, the court dismissed Marti-
nez’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 perfor-
mance did not improve. At the November 17 status
No. 06-3739 3
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 informa-
tion about damages. To make matters worse, LaPonte
failed to attend the January 5 status hearing. In re-
sponse 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 computa-
tion of damages as specified by Rule 26(a)(1)(C).
Failure to comply with this order will result in plain-
tiff ’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 atten-
tion 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 Febru-
ary 9 hearing, it followed up on its threat of dismissal and
entered a minute order noting that the case was “dis-
missed for want of prosecution. Civil case terminated.”
4 No. 06-3739
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 speci-
fied 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 condi-
tions 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 por-
tion 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,
No. 06-3739 5
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 recon-
sider on July 6, 2006, declaring in open court that “So
I have reconsidered the motion to dismiss that I pre-
viously made and in that sense I granted the motion to
reconsider. And having reconsidered, I adhere to my rul-
ing because I find as a matter of fact in this Rule 60
hearing the neglect which led to this time was not excus-
able.” 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 im-
posed 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.”
6 No. 06-3739
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 appel-
late 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 judg-
ment. 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 “for relief under Rule 60 if the motion is filed no
later than 10 days after the judgment is entered.” FED. R.
APP. P. 4(a)(4)(A)(iv), (vi). “Once the Rule 59(e) [or timely
Rule 60] motion has been ruled on, the thirty-day appeal
clock begins to run.” Andrews v. E.I. du Pont Nemours &
Co., 447 F.3d 510, 515 (7th Cir. 2006) (citation omitted). In
this case, Martinez did not file her Notice of Appeal until
October 11. In it, she identified “the order that dismissed
the Plaintiff ’s case for want of prosecution and entered in
No. 06-3739 7
this case on February 9, 2006 and the subsequent denials
of Plaintiff ’s Motion to Reconsider on July 6, 2006 and
September 14, 2006.” Of these three orders, the only one
that was entered on the docket within the 30-day period
prior to the filing of the notice of appeal was the final
September 14 order denying the second motion to recon-
sider. As a result, unless the time to appeal the prior
orders was tolled for some reason, the only order we may
examine is that of September 14.
The City argues that the time to appeal the initial
motion to vacate and the underlying dismissal had expired
by October 11, when Martinez filed her notice of appeal.
This conclusion, the City claims, follows from Borrero v.
City of Chicago, 456 F.3d 698 (7th Cir. 2006). In Borrero,
the district court dismissed the plaintiff ’s suit on May 9
for failure to prosecute, but it did not enter the judgment
on a separate document as required by FED. R. CIV. P. 58
until June 10. Following the dismissal, plaintiff filed
three motions. First, on June 8, plaintiff filed a motion to
vacate the dismissal; that motion was denied the same
day and the denial was docketed on June 10. Second, on
June 9, the plaintiff filed a motion asking the court to
reconsider its denial of the June 8 motion to vacate; the
second motion was denied on June 16 and docketed the
same day. Third, the plaintiff filed a second motion to
reconsider the motion to vacate the dismissal on June 22;
the third motion was denied on July 14 and docketed the
next day. The plaintiff filed a notice of appeal on August
10, identifying all three orders; the notice came more
than 30 days after the denial of all but his final motion.
It has long been established that “[a] party may not
continue to file Rule 59(e) motions in order to forestall the
time for appealing; only the first motion stops the clock.”
Andrews, 447 F.3d at 515. This is true for any combination
of Rule 59 and 60 motions. See Borrero, 456 F.3d at 701
(“[A] litigant should no more be able to extend the time
8 No. 06-3739
for appealing from the final judgment indefinitely by
filing successive Rule 60(b) motions, or for that matter
by filing an alternating sequence of Rule 59(e) and 60(b)
motions, than to do so by filing just a succession of Rule
59(e) motions.”). Borrero reasoned that this rule applies
even if the first Rule 59 (or 60) motion preceded the
entry of a Rule 58 judgment. The key is whether the
Rule 59 motion followed a final judgment, not how the
finality of the judgment is demonstrated. Id. at 699. Once
there is a final judgment, the filing of a second or subse-
quent Rule 59 motion does not toll the time to appeal. As
we reasoned in Borrero:
The appellate rules provide a safe harbor for litigants
uncertain whether a judgment that is not entered on
a separate document as required by Rule 58 really is
a final, appealable judgment. The plaintiff in our case
took advantage of the safe harbor by filing his first
Rule 59(e) motion more than 10 days after the judg-
ment was rendered (May 9) but fewer than 10 days
after the Rule 58 judgment order was docketed (June
10). He was protected because, as we noted earlier, a
premature Rule 59(e) motion is timely. There is no
reason to allow him to file a second identical motion
and get more time to appeal just because his first
motion was premature. He should not be rewarded
for prematurity.
Id. at 701.
For the City’s theory to prevail, the February 9 dismissal
must have been a final judgment (for which the Rule 58
judgment was not entered until July 7). On February 9,
Judge Zagel declared, “The case is dismissed for want of
prosecution. Thank you.” He followed this oral pronounce-
ment with a minute entry on February 20 that said:
“Status hearing held on 2/9/2006. This case is dismissed
for want of prosecution. Civil case terminated.” We con-
No. 06-3739 9
clude that this was a final judgment, even though it was
not memorialized as it should have been under Rule 58.
Suppose, for example, that Martinez had appealed the
February 9 order directly to this court. Had she filed a
Notice of Appeal within 30 days of February 20 (see Rule
58(b), using the date of entry in the civil docket as the
point of reference), we would have undoubtedly found that
appellate jurisdiction attached. Although the absence of
a Rule 58 judgment extends the time for appeal, see FED.
R. CIV. P. 58(b), a Rule 58 judgment is not necessary for
this court to have appellate jurisdiction. FED. R. APP. P.
4(a)(7)(B) (“A failure to set forth a judgment or order on
a separate document when required by Federal Rule of
Civil Procedure 58(a)(1) does not affect the validity of
an appeal from that judgment or order.”). “The losing
party can appeal a judgment . . . before the entry of the
Rule 58 judgment order if though not embodied in the
separate document that Rule 58 requires the judgment
really is final within the meaning of 28 U.S.C. § 1291.”
Borrero, 456 F.3d at 699. Here, because nothing remained
in the district court of the case after the order docketed
on February 20, that order was a final judgment for
purposes of § 1291.
The only other possible final judgment in this case
would be the June 6 order. There, Judge Zagel concluded
in response to Martinez’s Rule 59/60 motion: “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 language of
the ruling shows that it is a denial of the motion to vacate
the dismissal. The judgment remained exactly the same—
the case remained dismissed for failure to prosecute. Had
the court decided that a fresh look at the case was war-
ranted and entered “an order that changes matters of
10 No. 06-3739
substance, or resolves a genuine ambiguity in a judgment
previously rendered . . . we [would] construe the order as
a new judgment in the case, and the aggrieved party
[would have] a new ten-day period within which to file
another Rule 59(e) motion.” See Andrews, 447 F.3d at
516 (citation omitted). The test, developed in FTC v.
Minneapolis-Honeywell Regulator Co., 344 U.S. 206 (1952),
is “whether the district court disturbed or revised legal
rights settled in the original . . . order.” Andrews, 447 F.3d
at 516. Here, nothing in the original order was revised,
and as a result, no new time for appeal arose.
Recognizing the February 20 order as the final judg-
ment in this case, we return to Martinez’s motions. On
February 23, she filed a motion under both Rule 59(e) and
Rule 60. We have no jurisdiction over this motion, insofar
as it was based on Rule 59(e). “[T]he denial of a timely
Rule 59(e) motion is not appealable separately from the
judgment that it seeks to alter or amend.” Borerro, 456
F.3d at 700. This is because “[t]he two orders—the judg-
ment and the denial of the motion to change it—merge,”
such that even where the appellant fails to mention the
underlying judgment in her notice of appeal, it is none-
theless properly before the court of appeals. Id. The last
day to appeal those two orders was July 7, 2006, and
plaintiff ’s Notice of Appeal was not filed until October 11,
2006.
Insofar as the motion rested on Rule 60(b) and claimed
excusable neglect, the jurisdictional analysis is different.
The court denied that motion on July 6, 2006, and entered
its Rule 58 final judgment on July 7. Within ten business
days of that date, see FED. R. CIV. P. 6(a), Martinez filed
a motion to reconsider, challenging the district court’s
conclusion that she had not shown excusable neglect. In
contrast to the merger of a Rule 59(e) motion with the
underlying judgment, a “Rule 60(b) motion may be sepa-
rately considered on appeal, which is to say that the
No. 06-3739 11
district court’s denial of that motion pending the underly-
ing appeal was itself separately appealable.” Goffman v.
Gross, 59 F.3d 668, 673 (7th Cir. 1995) (citations omitted).
Moreover, a party who does not prevail on a Rule 60(b)
motion “may challenge that judgment with a motion to
alter or amend under Rule 59(e).” Inryco, Inc. v. Metropoli-
tan Engineering Co., Inc., 708 F.2d 1225, 1232 (7th Cir.
1983); see also Berwick Grain Co., Inc. v. Illinois Dept. of
Agriculture, 189 F.3d 556, 558 (7th Cir. 1999). (Nothing
in the recent changes to FED. R. APP. P. 4 allowing a
Rule 60 motion filed within ten days to toll the time
for appeal appears to change or conflict with Inryco.)
The Rule 59(e) motion filed on July 20 encompassed
within it the Rule 60 motion (and only the Rule 60 motion)
that it sought to revisit. “The Rule 59(e) motion challenges
only the Rule 60(b) judgment, not the validity of the
underlying judgment”; as a result, “[a]n appeal following
a ruling on the Rule 59(e) motion also does not bring
the underlying judgment up for review.” Inryco, 708 F.2d
at 1232 (internal citation omitted). The court did not rule
on the July 20 motion until September 14, 2006, and
Martinez’s Notice of Appeal was filed within 30 days
of that date. We thus have jurisdiction over the court’s
ruling on her Rule 60(b) motion.
III
When all is said and done, very little is properly before
us, and we can dispose of that readily. The district court
has great discretion over Rule 60 motions and the deter-
mination whether counsel has shown excusable neglect.
See Harrington v. City of Chicago, 433 F.3d 542, 546 (7th
Cir. 2006). Our review is for abuse of discretion. See
Provident Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th
Cir. 1995).
12 No. 06-3739
We acknowledge that “dismissal for failure to prosecute
is ‘a harsh sanction which should usually be employed
only in extreme situations, when there is a clear record of
delay or contumacious conduct, or when other less drastic
sanctions have proven unavailable.’ ” Grun v. Pneumo Abex
Corp., 163 F.3d 411, 425 (7th Cir. 1998) (quoting Pyramid
Energy Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061
(7th Cir. 1989) (citations omitted)). Even giving Martinez
the benefit of every doubt, however, she cannot demon-
strate that the district court abused its discretion in
finding that such a clear pattern of delay existed here.
Contrary to Martinez’s representations in her briefs, the
reason the district court denied the Rule 60 motion was
the pattern of delay and noncompliance with court orders
that developed from the time the case was filed; the court
was not harping about a single missed deadline. As our
earlier discussion shows, the court was well within its
rights to view LaPonte and Martinez’s conduct this way.
Much of the unsatisfactory performance occurred after
the district court put Martinez and her lawyer on notice
that their failure to comply would result in dismissal. (And
the district court gave ample notice here; once again, as
our earlier account of the course of this litigation shows,
Martinez can hardly claim that she was sandbagged by
the court.)
LaPonte tried to justify some of his actions by his alleged
lack of knowledge of the content of the court’s January 5
order prior to February 2. But he has no one but himself to
blame for that. “[A]ttorneys are expected to exercise
diligence in monitoring the disposition of their cases.”
DeRango v. United States, 864 F.2d 520, 523 (7th Cir.
1988). LaPonte did not to show up for the January 5
hearing and he did not inquire directly with the court
about what happened at the hearing he had missed.
LaPonte’s efforts in checking the electronic docket and
calling opposing counsel do not reflect sufficient diligence
No. 06-3739 13
to overcome his failings. Cf. Grun, 163 F.3d at 417-18, 422-
24 (reversing dismissal for failure to prosecute where
counsel had “filed a change of address form and sent copies
to defense counsel,” “periodically check[ed] the district
court file for trial dates,” “personally reviewed the file and
could not locate any order setting the case for trial or
dismissing the case,” and “telephon[ed] the district court’s
clerk on or about May 19, 1994 to inquire about a trial
date. The clerk informed her that the case had not
‘come through yet’ for trial, and that counsel would be
notified when the trial was set”).
To make matters worse, LaPonte did not comply with
the conditions set forth by the district court in order for
the motion to vacate to be considered. Courts have dis-
cretion to set such conditions on Rule 60(b) motions
because the motions are equitable in nature. See 11
Charles A. Wright, Arthur R. Miller, and Mary Kay Kane,
FED. PRAC. & PROC. § 2857 (2d ed. 1995). The court here
set some ground rules, and LaPonte disregarded them. He
failed to pay the costs requested by the City and officers,
and he did not secure a second lawyer in a timely fashion.
The lawyer he finally presented had not been admitted to
practice before the Northern District of Illinois. At that
late date, LaPonte caused another squabble when he
missed a briefing deadline, claiming not to have received
the defendant’s brief. The onus by then was on Martinez
(and LaPonte) to demonstrate that Martinez merited the
exercise of the court’s equitable discretion to reinstate
the case. The court quite reasonably decided that she
did not.
It is unfortunate for Martinez that her attorney’s neglect
resulted in the dismissal of what may have been a merito-
rious action. The result here may seem harsh, but when a
lawyer’s inattentiveness becomes as serious as it was
here, it imposes costs on everyone: the client, the oppo-
nent, and the court system. LaPonte was Martinez’s agent,
14 No. 06-3739
and Martinez is thus bound by his actions. See Easley v.
Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004). The proper
remedy, if she is to have one at all, is a malpractice action
against the attorney. See Tango Music, L.L.C. v.
DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir. 2003).
The judgment 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—8-28-07