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Zaddack v. A.B. Dick Co.

September 11, 1985

JOANN ZADDACK, PLAINTIFF-APPELLANT,
v.
A.B. DICK COMPANY, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No.82 C 2509-Stanley J. Roszkowski, Judge.

Author: Coffey

Before ESCHBACH, COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge

COFFEY, Circuit Judge. The plaintiff appeals the dismissal with prejudice of her employment discrimination suit for failure to prosecute under FED. R. CIV. P. 41(b). We affirm.

I.

The plaintiff, Joann Zaddack, a white female, filed suit on April 22, 1982, on behalf of herself and a class of female employees, alleging that her employer, the defendant A.B. Dick Co., terminated her employment solely because of her sex. Zaddack sought two million dollars in compensatory and punitive damages as well as injunctive relief. During the next year, the parties engaged in discovery and focused their discovery on the class claim. During this period Zaddack and her counsel failed to appear at status hearing ordered by the court on September 21, 1982 and November 23, 1982. Moreover, plaintiff requested additional time to complete class and other discovery on at least three occasions. On May 23, 1982. Moreover, plaintiff requested additional time to complete class and other discovery on at least three occasions. On May 26, 1983, after the parties had pursued class discovery for almost a year, the court ordered Zaddack to file a brief in support of her class certification request. Zaddack failed to file the brief on the class certification issue. On August 2, 1983 her attorney moved to withdraw from the case because of the plaintiff's "failure ... to remain in contact or communicate with her attorneys." The court granted leave to the attorney and allowed her to withdraw. Zaddack obtained new counsel and, in response to the defendant's motion to strike, withdrew the class allegations. On September 28, 1983, the district court granted new counsel additional time to complete discovery and set the trial for January 9, 1984.

On December 28, 1983, less than two weeks before the scheduled trial date, Zaddack's second set of attorneys filed a motion to withdraw as counsel because "irreconcilable differences ha[d] arisen between [the attorneys] and their client." The court held a status hearing on January 3 and Zaddack was in attendance with her second set of attorneys and a prospective third attorney. When asked whether she was going to enter her appearance, the new attorney, Ms. Leader, indicated to the court that the plaintiff's discovery was inadequate in her opinion.

"It appear that the substantial allegations in her case are those of equal pay and comparable work. There is no comparative data whatsoever that has been taken during the course of discovery. There is no way I could proceed and I would not want the case under those circumstances if discovery is being cut-off."

Defense counsel objected to reopening discovery:

"[I]t's not my fault that three sets of lawyers have looked at the case and haven't filed discovery that they now think they should have filed for. There's been a year-and-a-half of discovery. Voluminous documents were present by my client. It isn't my fault, and I think that at this late juncture for a third set of lawyers to come in and say, well I want to restart it, I just object."

The court determined that it would not reopen discovery, permitted the second set of attorneys to withdraw, and granted Ms. Leader "a week to decide whether she intended to enter an appearance." Judge Roszkowski set another status conference for 10:00 a.m., January 9, 1984.

When the case was called on January 9, shortly after 10:00 a.m., neither Ms. Leader nor Ms. Zaddack were present. Judge Roszkowski dismissed the case with prejudice nothing:

"There were three attorneys that she had in this case, and there were a number of appearances that you had to appear. I don't know how many. It must have been ten, at least, where you've appeared and they've gone in and said, we're not ready for trial, we want to get another attorney, and still another attorney, and so I think the case-it's time for it to be dismissed, and since they have not entered an appearance in accordance with a request of the other day, I see no reason to keep it on."

About 10:20 a.m., after defense counsel had departed from the courtroom, Ms. Leader appeared and informed the court that she had relied on the 10:30 a.m. time published in the Chicago Daily Law Bulletin. The court agreed to consider a motion for reinstatement of Ms. Zaddack's complaint, but stated to Ms. Leader the he intended:

"to require the plaintiff to pay all attorneys' fees in connection with the reinstatement, and all of the appearances the Mr. Lynch made in connection with the case with all the other attorneys, every appearance where no attorney showed up or no one showed ...


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