Schmidt v. Campanella Sand & Gravel Co.

49 F. App'x 647
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 29, 2002
DocketNos. 01-3981, 01-4243
StatusPublished
Cited by11 cases

This text of 49 F. App'x 647 (Schmidt v. Campanella Sand & Gravel Co.) 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
Schmidt v. Campanella Sand & Gravel Co., 49 F. App'x 647 (7th Cir. 2002).

Opinion

ORDER

Steven Schmidt leased trucks from and provided trucking services for Campanella Sand & Gravel Co., Inc. When their relationship deteriorated, Schmidt brought this action against Campanella for breach of the lease and back income. Although the district court granted partial summary judgment for Schmidt on liability issues, it dismissed the case with prejudice for failure to prosecute after Schmidt’s attorney missed three deadlines for submitting a pretrial order. Schmidt refiled his case, but the district court dismissed it with prejudice as a duplicative fifing. Because the judge warned Schmidt’s attorney that she would dismiss the case if he continued to miss deadlines, the judge did not abuse her discretion in dismissing the first suit. Res judicata barred Schmidt’s second suit. We affirm.

In 1999, Schmidt leased several tractor trailer trucks from Campanella, and as part of that lease, agreed to provide trucking services for Campanella. In October 2000 Schmidt filed a complaint based on diversity jurisdiction in federal court, alleging that Campanella had repossessed the trucks in violation of their lease and that Campanella was withholding income due him. Because Campanella refused to negotiate a new lease, as the previous lease required, and did not present any evidence that it had paid Schmidt all income due him, the district court in July 2001 granted partial summary judgment [649]*649for Schmidt. Because it did not have sufficient evidence to establish damages, the court scheduled a trial for August 27. The court directed Schmidt to present pretrial materials to Campanella by August 14 and directed both parties to present their joint pretrial order on August 21.

When the court called the submission hearing on August 21, Schmidt’s attorney did not appear. The judge continued the hearing to the next day, and mailed notice to Schmidt’s attorney warning that failure to appear again would result in dismissal for want of prosecution. Schmidt’s attorney appeared at the second hearing, but the parties did not have a joint order to submit. The judge continued the hearing to August 27, vacated the trial date, and in a minute order, warned Schmidt’s attorney that the “case shall be dismissed if plaintiff again fails to prepare pretrial order in accordance with Local Rules.” At the third submission hearing on August 27, the parties still did not have a pretrial order, and the court dismissed the case without prejudice. The court’s minute order noted that “plaintiffs counsel failed to cooperate in the preparation of the pretrial order.”

Campanella moved to modify the court’s order to have the case dismissed with prejudice, arguing that Schmidt’s attorney had repeatedly failed to cooperate and should not be allowed a “fourth strike.” The judge agreed and dismissed Schmidt’s case with prejudice, finding that Schmidt’s attorney had “repeatedly failed to comply-or even make a good faith effort to eomplywith court orders regarding the final pretrial order.” The judge noted that Schmidt’s attorney had been “warned of the consequences,” that he had not shown good cause for “ignoring his responsibilities,” and that his “lack of cooperation and effort in providing basic pretrial materials to the defense and his repeated failure to meet with defense counsel or to respond to his requests was unreasonable.”

Schmidt’s attorney moved to vacate the court’s dismissal with prejudice, citing heavy traffic, his office’s distance from downtown Chicago, his mother-in-law’s poor health, and lack of cooperation from the defense as the reasons for missing the first hearing and not preparing a joint pretrial order with the defense. The judge denied the motion, finding that Schmidt’s attorney did not raise any of these issues earlier and did not make “good faith, reasonable efforts” to cooperate with opposing counsel. The judge concluded that “despite receiving several extensions of time-as well as clear warnings of the consequences of failing to comply with his obligations-[Schmidt’s] counsel failed to present all his pretrial materials to defense counsel until ... the third deadline for presentation of the joint final pretrial order ... forc[ing] cancellation of the jury trial and causing] defendant unnecessary expense.” The judge proposed to vacate her order, however, if “plaintiffs counsel [was] willing to reimburse the defendant for its legal expenses.” Schmidt chose instead to appeal.

Four days after the district court dismissed his first suit without prejudice, Schmidt filed a new complaint with the same court alleging that Campanella owed him back income, breached their track lease, repossessed his trucks, and committed the torts of outrage, theft, and extortion. After it had modified its order to dismiss the first suit with prejudice, the court dismissed the second suit as a “duplicative filing.” Schmidt moved to vacate, arguing that the earlier dismissal was not an adjudication on the merits and that a Local Rule allowed him to refile his suit. The court summarily denied his motion, and Schmidt filed a timely notice of appeal. We consolidated the two cases on appeal.

[650]*650Because Schmidt fled both of his motions to vacate within ten business days of each dismissal, see Fed.R.Civ.P. 6(a), we view the motions as seeking to alter or amend judgment under Fed.R.Civ.P. 59(e). See Doe v. Howe Military Sch., 227 F.3d 981, 992 (7th Cir.2000). Because Rule 59(e) motions toll the appellate window for original judgments, Schmidt’s notices of appeal bring the underlying dismissals before us. See Kunik v. Racine County, Wis., 106 F.3d 168, 173 (7th Cir.1997).

We review dismissals for failure to prosecute for abuse of discretion. Kruger v. Apfel, 214 F.3d 784, 786 (7th Cir.2000). “The abuse of discretion standard ‘means something more than our belief that we would have acted differently if placed in the circumstances confronting the district judge.’ ” Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998) (quoting Anderson v. United Parcel Serv., 915 F.2d 313, 315 (7th Cir.1990)). Although dismissal is a harsh sanction, given the district court judge’s greater familiarity with the case and the parties, appellate review of a decision to dismiss for want of prosecution is highly deferential. Ball v. City of Chicago, 2 F.3d 752, 754-55 (7th Cir.1993).

Before dismissing a case for failure to prosecute, a district court judge should consider “the frequency and magnitude of the plaintiffs failures to comply with deadlines,” “the apportionment of responsibility for those failures between the plaintiff and his counsel,” “the effect of the failures in taxing the judge’s time and disrupting the judge’s calender,” the prejudice to the defendant, and “the probable merits of the suit.” Ball, 2 F.3d at 759-60. Additionally, a judge must explicitly warn plaintiffs counsel of the consequences of continuing to engage in dilatory conduct before dismissing the case. Kruger, 214 F.3d at 787.

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Bluebook (online)
49 F. App'x 647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmidt-v-campanella-sand-gravel-co-ca7-2002.