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Daniels v. Brennan

decided: October 17, 1989.

FRANK DANIELS, PLAINTIFF-APPELLANT,
v.
BERNARD J. BRENNAN, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 C 0737 -- Suzanne B. Conlon, Judge.

Cummings, Posner, and Kanne, Circuit Judges.

Author: Kanne

KANNE, Circuit Judge,

This appeal arises out of a dismissal of this case by the district court for plaintiff's want of prosecution. Plaintiff, Frank Daniels, raises three issues in this appeal. First, he asserts that the district court abused its discretion by allowing his attorney, Mr. Zuganelis, to withdraw as counsel of record. Second, he argues that the district court abused its discretion by sua sponte dismissing his case for lack of prosecution. Third, plaintiff claims that the district court abused its discretion by denying his postjudgment " pro se " motion for relief under Federal Rule of Civil Procedure 60(b).

"Withdrawal" of Counsel

Initially, we must address what is a fundamental and underlying misapprehension. Plaintiff contends that the district judge granted Mr. Zuganelis leave to withdraw as his counsel and that such action by the court constituted an abuse of discretion. The fact, however, is that Mr. Zuganelis never directed any "request" to the district court for leave to withdraw as plaintiff's counsel of record. On August 5, 1988, the following colloquy took place between plaintiff's counsel and Judge Conlon.

MR. ZUGANELIS: Good morning, your Honor.

THE COURT: Good morning.

MR. ZUGANELIS: George Zuganelis, Z-U-G-A-N-E-L-I-S, on behalf of the plaintiff. And this is the last time I will be here on behalf the plaintiff, your Honor.

THE COURT: Yes.

MS. ZOGAS: Good morning, your Honor. Sharon Zogas, Assistant Corporation Counsel, representing the defendant officer.

THE COURT: Good morning.

I am afraid I do know the status of this case. On April 29th I entered an order at a status hearing. The pretrial order was to be filed, let me see, at a pretrial conference on July 19th. That pretrial conference had to be canceled because no pretrial order was prepared.

On July 19th, we entered an order giving you a little more than two weeks to prepare the pretrial order. The pretrial order is due today, and as I understand it you don't have a pretrial order.

MR. ZUGANELIS: I have been fired by my client, your Honor, and I told my client I would come in and ask for an extension of time so his new lawyer could prepare the pretrial order.

THE COURT: Is your client here today?

MR. ZUGANELIS: No, he is not, your Honor. THE COURT: Well, I have no alternative under the circumstances, because you have not -- and apparently have not been able to because of lack of client cooperation, I don't know -- but I am going to dismiss the case for want of prosecution.

I'll tell you, I will entertain a motion to reinstate, but only if within the next two weeks the plaintiff produces the pretrial order and is ready for trial. This is not factually complex ...


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