Berwick Grain Co. v. Illinois Department of Agriculture

217 F.3d 502
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 27, 2000
DocketNos. 98-3394, 99-3880
StatusPublished
Cited by2 cases

This text of 217 F.3d 502 (Berwick Grain Co. v. Illinois Department of Agriculture) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berwick Grain Co. v. Illinois Department of Agriculture, 217 F.3d 502 (7th Cir. 2000).

Opinion

PER CURIAM.

For a third time we are compelled to take up matters arising from a 1991 civil rights lawsuit that Berwick Grain Company, Inc. and its president brought against several employees of the Illinois Department of Agriculture. In 1997, we affirmed the grant of summary judgment for the defendants, Berwick Grain Co., Inc. v. Illinois Dep’t. of Agric., 116 F.3d 231 (7th Cir.1997), and last year we affirmed the district court’s denial of a motion by plaintiffs to reopen the action, Berwick Grain Co., Inc. v. Illinois Dep’t. of Agric., 189 F.3d 556 (7th Cir.1999) (“Berwick II”). Before us now are lingering sanctions issues precipitated by the plaintiffs’ failed attempt to revive their suit. We affirm the district court’s award of sanctions against plaintiffs’ counsel and impose further sanctions of our own.

The pending matters are holdovers from Berwick II. Underlying that appeal was the plaintiffs’ long-delayed motion, premised on Federal Rule of Civil Procedure 60(b), to set aside summary judgment and revive a ease then approaching seven years old. The defendants deemed the Rule [504]*50460(b) motion frivolous and, when it was denied, asked the district court to impose sanctions under Federal Rule of Civil Procedure 11. That motion was heard by the district court after the plaintiffs already had filed an appeal from the denial of Rule 60(b) relief, and so even though the judge announced in open court his intention to sanction plaintiffs’ counsel, John H. Bis-bee, the court acceded to Mr. Bisbee’s request that a formal ruling be withheld until after we decided Berwick II. Our mandate in that appeal, case no. 98-3894, issued on September 20, 1999, and nine days later the district court entered its written Rule 11 order sanctioning Mr. Bis-bee with a $5,550 penalty. Mr. Bisbee has appealed, and we have docketed this latest appeal as case no. 99-3880. Meanwhile, before our mandate issued in Berwick II, the defendants moved for sanctions under Federal Rule of Appellate Procedure 38, and we elected to carry that motion along with Mr. Bisbee’s appeal of the Rule 11 sanctions. The Rule 11 appeal is now before us, and having briefed it the defendants also seek Rule 38 sanctions in this newest case.

We start with the order sanctioning Mr. Bisbee under Rule 11. The district court, relying on Rule 11(b)(2) and (c), ordered Mr. Bisbee personally to pay the Attorney General of Illinois, who represents the defendants, $5,550, an amount the court found to be the reasonable value of defense counsel’s time devoted to the district court litigation spawned by the plaintiffs’ Rule 60(b) motion. In this appeal Mr. Bisbee takes no issue with either the amount of the penalty or the decision to levy it against him personally. He instead insists that he engaged in no sanctionable conduct. Rule 11, though, plainly authorizes a district court to sanction a lawyer who without reasonable inquiry tenders a submission that includes legal contentions not warranted “by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” Fed.R.Civ.P. 11(b)(2), (c); see Retired Chicago Police Ass’n v. Firemen’s Annuity and Benefit Fund, 145 F.3d 929, 934 (7th Cir.1998); Anderson v. County of Montgomery, 111 F.3d 494, 501 (7th Cir.1997). Frivolous or legally unreasonable arguments, then, may incur penalty, Independent Lift Truck Builders Union v. NACCO Materials Handling Group, Inc., 202 F.3d 965, 968-69 (7th Cir.2000); Fries v. Helsper, 146 F.3d 452, 458 (7th Cir.), cert. denied, 525 U.S. 930, 119 S.Ct. 337, 142 L.Ed.2d 278 (1998), and for Rule 11 purposes a frivolous argument is simply one that is “baseless or made without a reasonable and competent inquiry,” Independent Lift Truck Builders Union, 202 F.3d at 969 (quotation marks and citation omitted). Here the district court labeled as frivolous the Rule 60(b) motion that Mr. Bisbee filed on behalf of the plaintiffs, and even were we not constrained to defer to the court’s assessment, see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Kennedy v. National Juvenile Detention Ass’n, 187 F.3d 690, 696 (7th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1169, 145 L.Ed.2d 1079 (2000), its sanctions order simply makes explicit what is readily apparent from our Berwick II opinion.

Nothing in Mr. Bisbee’s brief persuades us differently. In exercising its discretion under Rule 11, the district court focused on its earlier conclusion — one we have already affirmed' — -that the plaintiffs’ Rule 60(b) motion was beyond the court’s power to grant because Mr. Bisbee filed it too late. Mr. Bisbee insists he harbored an “objectively reasonable” belief that the clock was still running when he filed the motion, but we settled this question in Berwick II. All along the plaintiffs have insisted that our 1997 opinion in their first appeal disturbed the adverse summary judgment and triggered a new one-year period under Rule 60(b)(1), but we explicitly noted in Berwick II that Mr. Bisbee had not identified any authority suggesting that our outright affirmance of the summary judgment did anything of the sort. [505]*505Berwick II, 189 F.3d at 560. Mr. Bisbee offers by way of excuse that he looked for support but found none. He found none because “reasonable and competent inquiry,” see Independent Lift Truck Builders Union, 202 F.3d at 969, would have led him to conclude there was none. The very point of Rule 11 is to lend incentive for litigants “to stop, think and investigate more carefully before serving and filing papers,” see Cooter & Gell, 496 U.S. at 398, 110 S.Ct. 2447 (quotation marks and citation omitted), but when his quest proved futile Mr. Bisbee, disregarding the rule, filed anyway. Having done so, he has no basis to complain about the district court’s decision to sanction him.

We now turn to the question of Rule 38 sanctions. When an appeal rehashes positions that the district court properly rejected, A-Abart Elec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1406-07 (7th Cir.1992), or when it presents arguments that are lacking in substance and “foreordained” to lose, Mars Steel Corp. v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
217 F.3d 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berwick-grain-co-v-illinois-department-of-agriculture-ca7-2000.