Danny Ruark v. Union Pacific Railroad Compan , 916 F.3d 619 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2429
DANNY R. RUARK,
Plaintiff-Appellant,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:14-cv-00329-DRH-RJD — David R. Herndon, Judge.
____________________
ARGUED DECEMBER 5, 2018 — DECIDED FEBRUARY 20, 2019
____________________
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. The Federal Employers Liability
Act (FELA), 45 U.S.C. §§ 51-60, was enacted more than a hun-
dred years ago to compensate railroad employees for injuries
they receive on the job. Ruark was an employee of the Union
Pacific Railroad when a hydraulic rail drill malfunctioned and
sprayed him with hot oil. He sought relief under FELA using
the legal doctrine of “res ipsa loquitur,” a doctrine that asks a
finder of fact to infer liability when (as the Latin is often
2 No. 17-2429
translated) “the thing speaks for itself.” Because of the bur-
den-shifting nature of the doctrine, it requires some baseline
conditions—namely that the defendant was in control of the
instrumentality that caused the injury and that the plaintiff
was not also negligent. The district court found that these con-
ditions were not met and thus the jury should not be in-
structed that they could assume that “the matter spoke for it-
self” under the doctrine. We agree and find that the district
court did not abuse its discretion by refusing to grant Ruark a
continuance before trial. We affirm on both points.
I.
On September 22, 2013, Ruark was working as a machine
operator on rail maintenance on the Union Pacific Railroad
using a hydraulic rail drill to drill holes into the rails. To use
the drill, the operator clamps it in place on the rail and then
uses a lever to start the drill. When the drill is finished, the
operator pushes the lever back to stop the drill and retract the
bit, and then unclamps it from the rail. The drill is powered
by hydraulics which requires that it connect to machinery by
hoses carrying fluid. Ruark began working at six o’clock in
the morning and was involved in hooking the drill up to the
hydraulic lines before the work began. He used the drill
throughout the day, attaching it to the rail, pushing the lever
to start the drilling, pushing the lever to stop the drill and re-
tract it, and then detaching it from the rail. Ruark used the
machine to drill five or six holes that day, including the last
one, and had not noticed any leaking hydraulic fluid or other
malfunction. As he drilled the last hole, Ruark reached down
to retract the drill bit out of the hole and turn the drill off when
No. 17-2429 3
he heard a “boom.” 1 Hot fluid sprayed over him, including
in his eyes. Ruark jerked upward, twisted, and stumbled
backward. After Ruark informed his supervisor that the drill
had exploded, the supervisor gave him napkins to wipe off
the oil and Ruark declined further medical attention. The su-
pervisor sent him home to clean up and told him to return to
work the next day and report how he was feeling. Ruark re-
turned to work the following day, but did not participate in
much of the work, because, as he stated at his deposition, “it
hurt too bad.” Ruark’s Short App. at 88. Ruark went home
that evening and made an appointment to see his regular
nurse practitioner the next day. The form he completed at her
office stated that he was experiencing “sinus and stomach
problems.” Ruark’s Short App. at 125. Ruark did not return to
work after September 23 and was pulled out of service a few
days later because he had been convicted of a felony unre-
lated to the workplace accident. On October 2, Ruark com-
pleted an accident report form based on the September 22 in-
cident. On March 13, 2014, Ruark filed suit under FELA claim-
ing injuries from the incident with the rail drill.
Ruark began a prison sentence a short while later (on June
28, 2016), a fact we note because it interrupted Ruark’s repre-
sentation and trial preparation. Two months into Ruark’s in-
carceration (the end of August, 2016), his first set of lawyers
moved to withdraw, asserting that it was impossible to
1 Because this is an appeal from a grant of judgment as a matter of law
pursuant to Fed. R. Civ. P. 50(a)(1), we note the facts in the light most fa-
vorable to the party against whom judgment has been entered—in this
case, Ruark. Equal Employment Opportunity Comm'n v. Costco Wholesale
Corp., 903 F.3d 618, 621 (7th Cir. 2018).
4 No. 17-2429
represent him in this tort matter while he was incarcerated.
His new counsel took over a few months later (early Decem-
ber, 2016) and the district court scheduled a pretrial confer-
ence for the end of February. At that conference, the judge de-
nied a pending motion for a continuance, reasoning that the
case had been pending for almost three years, Ruark had been
well represented by his initial counsel, he had been given a
normal scheduling order, and the fact of his incarceration was
not cause to reopen exhausted deadlines and allow Ruark to
begin the discovery process anew. Despite the denial, the dis-
trict court judge did permit some planned discovery to con-
tinue. He allowed Ruark’s counsel to take his client’s trial tes-
timony by video deposition and to depose Ruark’s treating
physician. He also stated that he would consider a new mo-
tion to reopen discovery once a trial date was set and the new
counsel became more familiar with the case. Ruark’s lawyer,
however, did not pursue that option. The trial began on June
13, 2017. Ruark proceeded on a theory of negligence based on
res ipsa loquitur. Once the district court determined that the
plaintiff had not met the requirements for use of the doctrine,
it granted Union Pacific’s motion for judgment as a matter of
law, on June 14, 2017, a ruling which we review de novo. Mar-
tin v. Milwaukee Cty., 904 F.3d 544, 550 (7th Cir. 2018). Judg-
ment as a matter of law is proper if “a reasonable jury would
not have a legally sufficient evidentiary basis to find for the
party on that issue.” Id. (quoting Fed. R. Civ. P. 50(a)(1)). We
review the district court’s decision to deny the motions for a
continuance and to reopen discovery for an abuse of discre-
tion.
No. 17-2429 5
II.
A. Judgment as a matter of law on the FELA claim.
This case involves an interplay between FELA and the
doctrine of res ipsa loquitur. While FELA provides the cause
of action under federal statute for injuries received while in
the employ of the railroad, the plaintiff here, Ruark, went
about hoping to prove that liability by using the doctrine of
res ipsa loquitur. Res ipsa loquitur describes not a substantive
claim, but a manner of proceeding on that claim. As we will
describe in more detail below, it is “a shortcut to a negligence
claim.” Blasius v. Angel Auto., Inc., 839 F.3d 639, 649 (7th Cir.
2016) (citing Maroules v. Jumbo, Inc., 452 F.3d 639, 642 (7th Cir.
2006)). Thus whether Ruark could proceed below depended
on whether he had met the prerequisites for a res ipsa claim.
In short, FELA provides the substantive framework for
Ruark’s claim but the evidentiary theory under which he
opted to proceed is that rail drills do not, in the ordinary
course of events, spray oil on their users. As we will discuss,
the cost of admission to this plaintiff-friendly, burden-shifting
doctrine requires a plaintiff to make some significant prelim-
inary showings.
As for FELA, it may be true, as Ruark argues, that FELA
requires a lower threshold for submitting matters to the jury.
FELA is a remedial statute, lowering the burden of proof so
that an employee might meet it if “employer negligence
played any part, even the slightest, in producing the injury.”
Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506 (1957); Brown v.
Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014).
6 No. 17-2429
This lowered threshold, however, does not mean that an
employer is responsible for any injury that occurs in the
course of employment. As the Supreme Court explained:
That FELA is to be liberally construed, however,
does not mean that it is a workers’ compensa-
tion statute. We have insisted that FELA does
not make the employer the insurer of the safety
of his employees while they are on duty. The ba-
sis of his liability is his negligence, not the fact
that injuries occur.
Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543–44, 114 S. Ct.
2396, 2404 (1994) (internal citations omitted).
Ruark, therefore, is correct that a FELA case should go to
a jury if even the slightest of facts support a finding of negli-
gence. As the plaintiff has established in the multitude of
FELA cases it has set forth in its brief (none of which, we note
however, is a claim brought on the theory of res ipsa loquitur),
the amount of evidence required to submit a FELA case to the
jury is “scarcely more substantial than pigeon bone broth.”
Ruark Brief at 11 (citing Green v. CSX Transp., Inc., 414 F.3d
758, 766 (7th Cir. 2005)). But, “[a]s light as this burden is, the
plaintiff must still present some evidence of negligence …
specifically, the plaintiff must offer evidence creating a genu-
ine issue of fact on the common law elements of negligence,
including duty, breach, foreseeability, and causation.” Green,
414 F.3d at 766. See also Tennant v. Peoria & P. U. Ry. Co., 321
U.S. 29, 32, 64 S. Ct. 409, 411 (1944) (“[p]etitioner [is] required
to present probative facts from which the negligence and the
causal relation could reasonably be inferred.”). A FELA plain-
tiff “is not impervious to summary judgment. If the plaintiff
presents no evidence whatsoever to support the inference of
No. 17-2429 7
negligence, the railroad’s summary judgment motion is
properly granted.” Lisek v. Norfolk & W. Ry. Co., 30 F.3d 823,
832 (7th Cir. 1994). And if the plaintiff opts to proceed on a
doctrine that the injury speaks for itself, as opposed to some
other theory of liability, he must meet the requirements to
proceed on that theory, just as he would have been required
to offer evidence creating a genuine issue of fact on duty,
breach, foreseeability, and causation if Ruark’s theory of the
case had been an ordinary negligence claim. See Green, 414
F.3d at 766. In this case, Ruark’s theory of the case is that Un-
ion Pacific’s negligence should be inferred under the doctrine
of res ipsa loquitur, and so we turn now to the requirements
for the evidence he was required to offer to present his case to
a jury.
Ordinarily negligence may not be inferred from the mere
fact that an injury occurred, but the doctrine of res ipsa loqui-
tur recognizes that “in some situations an occurrence is so un-
usual that, absent a reasonable justification, the person in con-
trol of the situation should be held responsible.” Maroules, 452
F.3d at 642. The doctrine of res ipsa loquitur permits an infer-
ence of liability on the part of the defendant if the plaintiff can
demonstrate that certain conditions existed making it likely
that the defendant was responsible for the injury. The doc-
trine means “the matter speaks for itself” and thus, as the Su-
preme Court explained,
When a thing which causes injury, without fault
of the injured person, is shown to be under the
exclusive control of the defendant, and the in-
jury is such, as in the ordinary course of things,
does not occur if the one having such control
uses proper care, it affords reasonable evidence,
8 No. 17-2429
in the absence of an explanation, that the injury
arose from the defendant’s want of care.
Jesionowski v. Boston & M.R.R., 329 U.S. 452, 456, 67 S. Ct. 401,
403 (1947) (citing San Juan Light & Transit Co. v. Requena, 224
U.S. 89, 98–99, 32 S. Ct. 399, 401 (1912)). And because courts
are fond of enumerated lists, we often state the prerequisites
for a res ipsa claim as follows: (1) The injury must be one that
does not ordinarily occur absent negligence; (2) the injury
must have been caused by some agency or instrumentality in
the exclusive control of the defendant; and (3) the injury must
not have been due to any contribution or voluntary activity
on the part of the plaintiff. Robinson v. Burlington N. R.R. Co.,
131 F.3d 648, 652 (7th Cir. 1997) (citing Stillman v. Norfolk & W.
Ry, 811 F.2d 834, 836–37 (4th Cir. 1987)).
Once the plaintiff has met the prerequisites listed above,
the reward is high. She is entitled to have the court instruct
the jury that it may draw an inference of negligence. That is
not to say that the jury would be compelled to find negli-
gence—just that the facts of the occurrence warrant such an
inference. Jesionowski, 329 U.S. at 457, 67 S. Ct. at 404 (citing
Sweeney v. Errving, 228 U.S. 233, 240, 33 S. Ct. 416, 418 (1913)).
A plaintiff may use the doctrine of res ipsa loquitur in a
FELA case. See Robinson, 131 F.3d at 652. And in this case, the
last two factors in the list are the ones at play—that is whether
the Railroad had exclusive control of the drill or not, and
whether any of Ruark’s injuries could be attributed to his own
actions. And these factors are, of course, really two sides of
the same coin. In order for a plaintiff to show that the defend-
ant was responsible for the accident, he must preclude other
possible causes of the injury—including his own contribution.
See Jesionowski, 329 U.S. at 454, 67 S. Ct. at 402.
No. 17-2429 9
In this case, the key question, therefore, was whether
Ruark’s injury was caused by some agency or instrumentality
in the exclusive control of the Railroad. The district court con-
cluded that there was no question that the drill was not in the
exclusive control of the Railroad, and we agree. As Ruark tes-
tified, he was touching and using the drill when the hydraulic
fluid came squirting out. He was involved in hooking the rail
drill to the hydraulic lines on the machine that day, and he
used the rail drill to drill at least four or five holes. The drill
was operating properly when he first began using it and
worked without incident throughout the day up until the
time of the accident. In fact, at the hearing on Union Pacific’s
motion for judgment as a matter of law, Ruark’s counsel ad-
mitted that he had partial control over the drill.
Court: We know that he—at least he was, in
part, in control of this drill, correct?
Ruark’s counsel: Correct.
As the district court concluded, “in light of the plaintiff’s
testimony about the control that he had in this case, hooking
up the hoses, hooking up the hoses to the drill, hooking up
the drill to the rail, pulling the lever in and out, turning the
drill on and off, I find res ipsa loquitur does not apply.” R. 110
at 28. We agree.
Ruark attempts to nudge the control factor in Ruark’s fa-
vor in two ways. First, Ruark claims that the requirement of
“exclusive control” is not as exclusive as the phrase might
suggest. Second, he argues that Union Pacific had a “non-del-
egable duty to maintain its equipment in safe working order
and to provide Ruark with a safe place in which to work and
safe equipment.” Ruark Brief at 21.
10 No. 17-2429
Turning to exclusive control first, Ruark argues that the
doctrine is applicable even where there is some evidence that
the “plaintiff’s participation in the employer’s activity might
have produced the accident.” Ruark Brief at 6. For this prop-
osition, Ruark cites Colmenares Vivas v. Sun Alliance. Ins. Co.,
807 F.2d 1102 (1st Cir. 1986). In Colmenares Vivas, the plaintiffs
were injured when an airport escalator handrail malfunc-
tioned causing them to tumble down the stairs. The court had
to decide whether the doctrine of res ipsa loquitur could be
applied where the Ports Authority of Puerto Rico owned and
maintained the airport but contracted with Westinghouse to
maintain the escalator. Id. at 1105-06. In deciding that res ipsa
loquitur could be applied in the case against the airport au-
thority, the court used the following language, on which
Ruark relies:
Thus, res ipsa loquitur applies even if the de-
fendant shares responsibility with another, or if
the defendant is responsible for the instrumen-
tality even though someone else had physical
control over it. … It follows that a defendant
charged with a nondelegable duty of care to
maintain an instrumentality in a safe condition
effectively has exclusive control over it for the
purposes of applying res ipsa loquitur.
Colmenares Vivas, 807 F.2d at 1106 (internal citations omitted).
But in Colmenares Vivas, the court was deciding which of two
potential tort feasors (in a non-FELA case) effectively had con-
trol over the escalator. There was no question that the injured
parties themselves had no control over the escalator. Id. at
1107. In this case, in contrast, the question is whether the
plaintiff may have contributed to the accident, and the
No. 17-2429 11
Supreme Court and this court have been clear that one cannot
employ the doctrine of res ipsa loquitur where there is a pos-
sibility of negligence on the part of the injured plaintiff. Rob-
inson, 131 F.3d at 653–54. The injury must have occurred
“without fault of the injured person.” Jesionowski, 329 U.S. at456–57, 67 S. Ct. at 403-04 (1947).
Ruark is correct that a court can still give an instruction on
res ipsa loquitur when the plaintiff’s allegedly negligent acts
are “part of the employer’s general activity.” Robinson, 131
F.3d at 655, n. 6. But this is only true if a jury can first eliminate
the possibility that the plaintiff’s activity contributed to the
injury. Jesionowski, 329 U.S. at 456–57, 67 S. Ct. at 403–04; Rob-
inson, 131 F.3d at 653–54. What matters is whether the injured
person participated in the operations in a manner that con-
tributed to the accident—not merely whether he participated
in the operations of the injuring instrumentality. Jesionowski,
329 U.S. at 457, 67 S. Ct. at 404. Robinson, 131 F.3d at 655 & n.6.
See also Potthast v. Metro-N. R.R. Co., 400 F.3d 143, 151 (2d Cir.
2005) (“It is this consideration of inappropriate interaction, ra-
ther than whether there ever was or was not any interaction
involving the plaintiff and the instrumentality of the injury,
that constitutes the salient criterion.”) (emphasis in original).
And so, for example, if a jury concludes that an injured
brakeman’s activities—throwing a switch and giving a sig-
nal—did not contribute to the accident where he was thrown
from a rail car and killed, the defendant railroad qualifies as
the exclusive controller of the factors which caused the injury.
Jesionowski, 329 U.S. at 458, 67 S. Ct. at 404. The jury may then
proceed on a res ipsa loquitur instruction, inferring negli-
gence on the part of the railroad. Id. In contrast, a railroad em-
ployee who is not riding in the proper position while
12 No. 17-2429
switching railcars may have contributed to her own injuries
and thus is not entitled to a res ipsa instruction. See Robinson,
131 F. 3d at 655. Nor is a railroad worker plaintiff entitled to
such an instruction if he made the decision to attempt to free
a jammed forklift load by pulling on it while standing beneath
it. Stillman, 811 F.2d at 837. See also McGinnis v. Consolidated
Rail Corp., Nos. 96-2571, 97–1009, 1997 WL 457530, at *3 (4th
Cir. Aug. 12, 1997) (railroad worker who lost his balance and
grabbed a coupler which then crushed his hand could not re-
cover on a res ipsa loquitur theory because of his contribution
to or voluntary activity in the accident); Mandrgoc v. Patapsco
& Back Rivers R.R. Co., No. 95-3123, 1996 WL 477253, at *5 (4th
Cir. Aug. 23, 1996) (an employee had partial control of the in-
strumentality of injury because he operated the switch and
elected to jump from the car in anticipation of the derailment);
Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265, 272 (2d
Cir. 1996) (holding res ipsa loquitur instruction was inappro-
priate because employee had partial control over a cot, sup-
plied by the Railroad, which collapsed while the employee
was sleeping on it).
Ruark argues that there was “no evidence that Plaintiff op-
erated the drill in any negligent manner.” Ruark Reply Brief
at 3. This is, of course, correct, but it misunderstands the rela-
tionship between the second and third requirements of a res
ipsa loquitur claim and the plaintiff’s burden. Recall that the
doctrine of res ipsa loquitur shifts the burden to the defendant
and allows a jury to infer negligence. This is not the usual way
our legal system proceeds and places a heavy thumb on the
plaintiff’s side of the scale. Before that thumb can be placed,
the doctrine requires that a plaintiff make a significant show-
ing that he can eliminate other possible explanations for the
injury—aside from the employer’s negligence. The
No. 17-2429 13
prerequisites, therefore, are “rigidly defined.” Jesionowski, 329
U.S. at 456, 67 S. Ct. at 403. One of those prerequisites is that
“the defendant must have exclusive control of all the things
used in an operation which might probably have caused in-
jury.” Jesionowski, 329 U.S. at 456, 67 S. Ct. at 403. If the em-
ployer is not in control of the instrumentality of the injury
then there is a greater chance that the person or thing that is,
in fact, in control of that instrumentality caused the injury. Be-
cause Ruark controlled the drill and its set up, his actions
could have been the cause of his injury. That is not to say that
they were. Ruark is correct that there is no evidence that he
operated the drill negligently. There need not be. But without
a demonstration that Union Pacific had control of the instru-
mentality of the injury, we cannot employ a doctrine that as-
sumes Union Pacific’s negligence by mere fact of the accident
itself. As the Supreme Court put it:
there can be no application of the doctrine of res
ipsa loquitur if other causes than the negligence
of the defendant, its agents or servants, might
have produced the accident[.] [T]he plaintiff …
has the burden to exclude the operation of such
causes by a fair preponderance of the evidence
before the rule can be applied. This is so because
if there are other causes than the negligence of
the defendant that might have caused the acci-
dent, the defendant cannot be said to be in ex-
clusive control—one of the prerequisites to the
application of the rule here invoked.
Jesionowski, 329 U.S. at 454, 67 S. Ct. at 402 (1947).
Here the district court concluded that “it isn’t just that the
plaintiff had some role, but that he was in control of this tool,
14 No. 17-2429
this instrumentality, and … more so than the railroad.” R. 110
at 29. And thus the court concluded that Ruark had not pre-
sented sufficient evidence that the Railroad controlled the
drill in order to meet the prerequisites for a res ipsa loquitur
instruction. R. 110 at 24. We agree.
Ruark’s brief also states, without argument, that “Union
Pacific has a non-delegable duty to maintain its equipment in
safe working order and to provide Ruark with a safe place in
which to work and safe equipment.” Ruark Brief at 21. This
seems to be just another way of saying that a jury can infer
negligence by an employer any time an accident occurs. If this
position were true, then in every FELA case, the railroad
would be assumed to have complete control over everything
in the workplace regardless of the plaintiff’s contributory neg-
ligence, and every FELA case would warrant a res ipsa loqui-
tur instruction. We know, however, that is not so. See, e.g.,
Robinson, 131 F. 3d at 654; Stillman, 811 F.2d at 837; Santa Ma-
ria, 81 F.3d at 272; McGinnis, 1997 WL 457530, at *3; Mandrgoc,
1996 WL 477253, at *5.
Ruark failed to meet the prerequisites for a res ipsa loqui-
tur instruction, and because this was his sole theory of the
case, the district court correctly granted Union Pacific’s mo-
tion for judgment as a matter of law.
B. The denial of a request for a continuance.
As Ruark’s FELA case ambled along, so too did the crimi-
nal claims against him in his unrelated criminal case. After he
was incarcerated in that matter, his lawyers moved to with-
draw, claiming it was impossible to represent him under the
No. 17-2429 15
circumstances. (R. 41, R. 43, R. 39 at ¶ 7, R. 42 at ¶ 6).2 Once
Ruark’s new counsel first appeared in the case, the judge set
a pretrial conference for two months later. Sixteen days before
that conference, Ruark’s counsel first requested to continue
the conference and trial. He did not expressly request that the
court reopen discovery, but he noted that he wanted to take
statements or depositions of multiple individuals and wished
to hire an economist. The Railroad argued that all of those in-
dividuals had been disclosed and were known to the plaintiff
since 2014 and could have been deposed in a timely manner.
The district court denied the motion.
Ruark argues that the district court abused its discretion
by denying the motion to continue. A district court, however,
must have a wide berth to manage caseloads and dockets and
therefore “[a] district court’s exercise of its discretion in
scheduling trials and granting or denying continuances is ‘al-
most standardless.’”United States v. Egwaoje, 335 F.3d 579,
587–88 (7th Cir. 2003) (citing United States v. Moya-Gomez, 860
F.2d 706, 742 (7th Cir. 1988)). See also, Flint v. City of Belvidere,
791 F.3d 764, 768 (7th Cir. 2015). And in this case, the district
court judge managed his discretion reasonably. As explana-
tion for denying the motion for the continuance at the Febru-
ary 6 pretrial conference, the judge noted that Ruark had a
normal scheduling order, competent former counsel, and that
the trial had already been continued two or three times
2 Ruark’s brief states that, “[t]he district judge seemed to begrudge that
Ruark was serving a sentence on an unrelated issue … .” Ruark Brief at 24.
It is worth noting that the district court did not seem particularly con-
cerned about the logistical problems of deposing Ruark in prison, noting
that the judge had been involved in a similar case where a plaintiff who
was in prison needed to be deposed. R. 109 at 12.
16 No. 17-2429
previously. Moreover, he did not deny definitively Ruark’s
motion for a continuance, but rather he denied it for the time
being, encouraging Ruark’s counsel to file such a motion if it
became necessary later in the proceedings:
… as you get more familiar with your case, I am
open to you filing a motion to—[a] formal mo-
tion to continue that trial date, setting out the
kind of things you talked about, which defend-
ant can respond to, and I’ll rule on that motion,
you know, and see if you come up with any-
thing that might convince me.
R. 109 at 15-16. Additionally, on February 22, 2017, the district
court entered a formal written order that stated “[u]pon a trial
date being set, Plaintiff is granted leave to file a formal motion
to continue, if appropriate.” R. 58.
Loss of counsel is not a per se reason that a district court
might reopen discovery. Like other factors it is one of many
that a court might consider in exercising its broad discretion
to grant or deny a continuance. See, e.g., Egwaoje, 335 F.3d at
588 (considering plaintiff’s knowledge of the trial schedule,
his repeated requests for a speedy trial, multiple rescheduling
after the plaintiff fired counsel, likelihood of prejudice, com-
plexity of case, diligent use of trial preparation time, and in-
convenience and burden to the court and parties); Washington
v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1085–86, 1088–89 (7th
Cir. 1982) (affirming the denial of continuance where the
plaintiffs’ lawyer withdrew on the day of trial, the case had
been pending for three years, and the district court permissi-
bly concluded that “no further delay could be tolerated.”). In
this case, however, the judge recognized that the change of
counsel might be a hindrance to preparation and advised
No. 17-2429 17
Ruark’s counsel that he would keep an open mind in consid-
ering a new motion to continue.
Plaintiff’s counsel, however, never filed a motion to con-
tinue the June trial date or to reopen discovery, and instead
proceeded to trial. Even if the judge had erred (and for the
reasons asserted above, we find that he was well within his
discretion), Ruark cannot show any prejudice from the district
court’s ruling. He knew the identities of the individuals he
wanted to interview, but he appears to have abandoned any
attempt to interview them or reopen discovery.
III.
In short, we conclude that the district court correctly en-
tered judgment as a matter of law for the Railroad as Ruark
failed to satisfy the prerequisites for the theory of negligence
under which he pursued the case—res ipsa loquitur. The dis-
trict court did not abuse its discretion in refusing to grant a
motion for a continuance. We therefore AFFIRM the judg-
ment in all respects.