Bardney v. United States

959 F. Supp. 515, 47 Fed. R. Serv. 46, 38 Fed. R. Serv. 3d 159, 1997 U.S. Dist. LEXIS 3047, 1997 WL 124219
District Court, N.D. Illinois·Decided March 17, 1997·No. 96 C 5034, 92 CR 1043·Published·Cited by 2 cases

Opinion

OPINION AND ORDER

NORGLE, District Judge:

Before the court is R. Eugene Pincham’s (“Pincham”) motion to vacate three orders entered by the court. For the reasons which ensue, the motion is denied.

I.

Regrettably, the instant motion forces the court to revisit the history of recalcitrance exhibited by Pincham. On August 14, 1996, Pincham filed on behalf of Victor M. Bardney a motion to vacate, set aside, or correct the conviction and sentence imposed by the court. Pincham filed the motion pursuant to 28 U.S.C. § 2255. Fifteen days later, on August 29, 1996, the court, sua sponte, ordered Pincham to respond in writing by September 13,1996, to show cause why the court should not impose sanctions for various flaws in the motion (the “August order”). September 13th came and went, but Pincham never filed the court-ordered response. On October 11, 1996, after four weeks of waiting and in the absence of Pineham’s response, the court issued an Opinion and Order imposing a $1,000 monetary sanction pursuant to Federal Rule of Civil Procedure 11 (the “October order”). The October order gave Pincham fourteen days to pay the sanction amount, and granted him leave to amend the § 2255 petition. Again, the court waited for Pine- *518 ham to comply. To this day, however, Pine-ham has neither paid the fine nor filed an amended petition on behalf of his incarcerated client. As a result of Pincham’s continued silence and neglect, the court issued a third order, on December 11,1996, requiring Pine-ham to appear on January 21, 1997, to show cause for his failure to comply with the previous orders of the court (the “December order”).

On January 21, 1997, more than five months after he filed the § 2255 petition, Pincham appeared before the court and filed a motion to vacate the court’s earlier orders. Disregarding the self-serving recitation of his “legal-professional 45-year career” and his baseless claim that the court took part in attacks on his personal character, Pincham’s motion contends that he “had no knowledge of and did not receive notice of the entry of’ the three orders “until or after December 16, 1996.” According to Pincham, the entry of the sanction order without Pincham’s actual knowledge or notice of the entry of the August and October orders denied him the process afforded him by the Constitution. The court disagrees.

II.

At the outset, the court notes that Pine-ham’s motion is devoid of citation to relevant legal or statutory authority; it even fails to cite to the rule upon which it is purportedly brought. In Doe, By and Through G.S. v. Johnson, 52 F.3d 1448, 1457 (7th Cir.1995), the United States Court of Appeals for the Seventh Circuit stated, “A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority, forfeits the point.” A strict reading of Johnson would require the court to deny the motion outright without discussion of the arguments contained within it. However, the court declines the opportunity to do so, and instead will discuss Pincham’s contentions within the context of the applicable procedural rules and laws.

A. August and December Orders

The court notes that both the August order, in which the court ordered -Pine-ham to file a written response to show cause for why it should not sanction him, and the December order, in which the court ordered Pincham to appear before it, are mere scheduling orders, and are not properly the subject of motions to reconsider. The court issued the August order in compliance with Federal Rule of Civil Procedure 11, and Pine-ham has not supplied the court with any reasonable justification for vacating it. With regard to the December order, of which Pinc-ham acknowledges receipt, the court notes that Pincham obeyed that order and appeared on January 21,1997, at which time he filed the instant motion. Because Pincham has not given the court sufficient reason for vacating the August and December orders, the court denies the motion as to those two orders, noting that the elimination of those orders would have absolutely no effect. Those orders aside, the crux of Pincham’s motion relates to the October order, in which the court imposed a monetary sanction upon Pincham.

B. October Order

1. Type and Standard Associated With Motion

After the court entered the October order, Pincham had four options. Pincham could have filed a Rule 59(e) motion to alter or amend the court’s sanction order, which is a “judgment” for purposes of Rules 54 and 59. Burda v. M. Ecker Co., 954 F.2d 434, 439 (7th Cir.1992). Pincham did not do so, presumably because he “did not receive notice of it.” Pincham could have also appealed the sanction order within thirty days after the date of its entry, see Fed.R.App.P. 4(a)(1), but did not because — again,the court surmises — he “did not receive notice of it.” In addition, Pincham could have requested that the court reopen the appeal period, see Fed.R.App.P. 4(a)(6), but, for reasons not known to the court, Pincham neglected to make such a request.

Thus, the remaining avenue for relief from the sanction order, a judgment, was to request that the court reconsider it. The court could do so pursuant to either its inherent authority, as recognized in Rule 54 and Akzo Coatings, Inc. v. Ainger Corp., 909 *519 F.Supp. 1154, 1159 (N.D.Ind.1995), or its authority pursuant to Rule 60(b).

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Bardney v. United States, 959 F. Supp. 515, 47 Fed. R. Serv. 46, 38 Fed. R. Serv. 3d 159, 1997 U.S. Dist. LEXIS 3047, 1997 WL 124219 (N.D. Ill. 1997).

959 F. Supp. 515 (Bardney v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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