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Harrington v. City of Chicago

January 3, 2006


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 00188-John F. Grady, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.


Before BAUER, POSNER, and MANION, Circuit Judges.

Claims of excessive force by police officers are at the heart of this suit brought under 42 U.S.C. § 1983. However, before the merits could be heard, the repeated inattention of the plaintiffs' attorney to the case caused the district court to dismiss it for want of prosecution. The attorney, T. Lee Boyd, Jr., then moved, on behalf of his clients, to vacate the dismissal. The district court denied the motion, and we affirm.


In January 2003, Richard Harrington, Tavares Harrington, Tyjuan Kidd, and Brenda Johnson sued the City of Chicago and several of its police officers (collectively "the City"), asserting claims of excessive force and related claims. The district court set the scheduling conference in the case for September 16, 2003. The district court also ordered the parties to exchange material documents in advance of the conference.

The plaintiffs' attorney, T. Lee Boyd, Jr., failed to appear at the conference and did not provide any documents as ordered. Without such documents, the City had no information about the damages that the plaintiffs were claiming. As a result, the district court explicitly ordered the plaintiffs to disclose medical records or other information concerning their purported damages. The district court also scheduled a status conference for October 22, 2003, and issued the following warning: "Failure of counsel for plaintiffs to appear at that conference will result in a dismissal of the case for want [of] prosecution."

Boyd appeared for the status conference, and the district court called Boyd's attention to his absence at the scheduling conference. Boyd only offered this explanation: "Judge, what happened was, Judge, I had just gotten back in town. It didn't get on my call. I didn't recognize- realize, Judge, until later. So I apologize for that." As far as information on damages, Boyd gave the City some pictures of bruises allegedly inflicted by the defendant officers but no medical records, even though some of the plaintiffs were allegedly hospitalized after the underlying incident. The district court continued the status conference until April 28, 2004, two days before the discovery cutoff date.

Over the next several months, matters did not go well. Boyd and his clients missed several deposition dates without explanation. The City's written discovery requests went unanswered as did the City's inquiries into why Boyd and his clients were not responding or otherwise participating in discovery. As the end of the discovery period approached, Boyd had disclosed nothing but the aforementioned photographs. Boyd did not communicate with opposing counsel or the district court to explain his inattention to discovery or to seek any adjournments/ extensions. While in some instances he had grounds to request extensions of time (e.g., death in the family), he repeatedly did not do so. In sum, Boyd simply ignored the case for months on end.

When the April 28 date for the status conference arrived, Boyd again failed to appear. In his absence, Boyd sent a paralegal. Defense counsel recounted Boyd's inactivity during discovery for the district court and stated that, despite making many attempts, "I've had no contact, no response, no participation whatsoever from the plaintiffs on this case." When Boyd's paralegal attempted to respond, in open court, the district court refused to hear from the paralegal, stating, "I do not permit the unauthorized practice of law." The district court then ruled: "This case is dismissed for want of prosecution because of the complete and consistent failure of plaintiff to cooperate in discovery." A written judgment to this effect was entered on April 29.

On May 10, Boyd responded by filing a "motion to vacate the court's order of April 28, 2004 dismissing the instant matter for want of prosecution." In the motion, Boyd cited no authority, not even a federal rule. The motion recounted some dates, offered some excuses, and prom- ised future cooperation. After a hearing*fn1 and further briefing, the district court construed the motion as filed under Fed. R. Civ. P. 60(b) and then denied it. Boyd, on behalf of his clients, appeals.


Because Boyd's post-judgment motion is so vague, the first matter to address is whether the motion should be treated as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e), as Boyd now requests, or as a motion for relief under Rule 60(b), as the district court treated it. Altering or amending a judgment under Rule 59(e) is permissible when there is newly discovered evidence or there has been a manifest error of law or fact. See Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000). Vacating a judgment under Rule 60(b) is permissible for a variety of reasons including mistake, excusable neglect, newly discovered evidence, and fraud. See Fed. R. Civ. P. 60(b). While the two rules have similarities, "Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances." Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005) (quotation omitted).

Rule 59(e), by contrast, requires that the movant "clearly establish" one of the aforementioned grounds for relief. Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th Cir. 2001). Regardless, we review ...

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