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JOHNSON v. CITY OF CHICAGO

United States District Court, Northern District of Illinois


March 20, 2003

JOHNSON
v.
CITY OF CHICAGO

The opinion of the court was delivered by: Zagel, Judge

OPINION

This is plaintiff's motion to vacate an order that I entered on February 20, 2003, dismissing this case for want of prosecution pursuant to Local Rule 41.1. Plaintiff also seeks leave to file the appearance of counsel and for enlargement of time to complete discovery.

Plaintiff, acting pro se, filed a Title VII race discrimination complaint on December 4, 2000. On November 8, 2002, I entered an order dismissing this case for want of prosecution, indicating that any request for reinstatement must be made by December 13, 2002. On December 12, 2002, plaintiff's newly-retained counsel, Barry A. Gomberg and Brian S. Schwartz of Barry A. Gomberg & Associates, Ltd., filed a motion to vacate the dismissal, which was granted on December 19, 2002. Mr. Gomberg and Mr. Schwartz admit that they never filed a formal appearance, believing that they did not need to because their appearance on December 19, 2002, was granted instanter on oral motion. Because no formal appearance was filed, Mr. Gomberg and Mr. Schwartz did not receive notice of the February 20, 2003, status and consequently did not attend. Now, Mr. Gomberg and Mr. Schwartz ask that I vacate the dismissal entered on that date.

It is undisputed that Mr. Gomberg and Mr. Schwartz did not know that I had dismissed this case on February 20, 2003, until February 28, 2003, when defendant's counsel faxed them a copy of my order in response to Mr. Gomberg's and Mr. Schwartz's deposition notices. In their defense, Mr. Gomberg and Mr. Schwartz argue that while they admit that they failed to strictly adhere to the Local Rules, their conduct was not egregious nor willful. They suggest that the Rules might need revision, because it is inequitable for a case to be dismissed under these circumstances, but that is a question not to be addressed here. The fact remains that even if Mr. Gomberg's and Mr. Schwartz's failure to file a formal appearance was neither egregious nor willful, whatever equity that might have been accomplished by my granting this motion is lost by the aged nature of this case and the unreasonable delay in prosecuting it. During the December 19, 2002, status, at which counsel for plaintiff were present, I set the next status for January 30, 2003. Clearly, counsel had notice of this status, but they failed to appear, nor had they made any contact with defendant regarding the case by that time. Additionally, plaintiff himself was receiving orders from this court and according to Mr. Gomberg and Mr. Schwartz, plaintiff was informing them of the orders he received. If what Mr. Gomberg and Mr. Schwartz say is true, then it is inexplicable how they could not have known of the order that I entered on January 30, 2003, in which I explicitly stated that "[f]ailure of plaintiff to appear pro se and/or by counsel at the next scheduled status may result in a dismissal for want of prosecution." More than two weeks passed between the entering of the January 30 order and the February 20 status, which provided more than an adequate amount of time for plaintiff to alert his counsel of this order.

For these reasons, plaintiff's motion to vacate the February 20, 2003, dismissal and for leave to file the appearance of counsel and for enlargement of time to complete discovery is denied.

20030320

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