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The full case caption appears at the end of this opinion. This case isan appeal from an order of the United StatesDistrict Court for the Southern District ofIllinois dismissing with prejudice the civilrights case of plaintiff Larry Spain and an orderof sanctions against Mr. Spain’s counsel, EricVickers. Mr. Spain filed this suit under TitleVII of the Civil Rights Act of 1964, 42 U.S.C.sec. 2000e et seq., and 42 U.S.C. sec. 1981 inNovember, 1995, claiming he was wrongfullyterminated as school principal because of hisrace by his employer, defendant-appellee Board ofEducation of Meridian Community Unit SchoolDistrict Number 101 (“the Board”). I. BACKGROUND Mr. Spain’s case was originally assigned toJudge J. Phil Gilbert. During discovery, theBoard filed a Motion to Compel Answers toInterrogatories and Responses to a Request forProduction based on plaintiff’s failure to filehis initial disclosures and to cooperate indiscovery. The court granted this motion, and onDecember 5, 1996, as a sanction ordered plaintiffto pay $285 in attorney’s fees and costs todefense counsel by January 8, 1997. The sanctionwas not paid until July 27, 1998. In April, 1998,the case was reassigned to newly-appointed JudgeG. Patrick Murphy and was set for trial for June23, 1998. On May 28, 1998, the district courtheld a pre-trial conference. During the pre-trialconference at which Mr. Vickers was present, thecourt ordered the jury instruction conference setfor June 3, 1998 at 9:00 a.m. At this time theparties were to provide the court with theirproposed jury instructions. Mr. Vickers was absent for the 9:00 a.m. startof the jury instruction conference. Noting thatthe case was set for trial on June 23, 1998, thecourt proceeded with the conference despite Mr.Vickers’s absence. Defense counsel informed thejudge that he had not received a list of exhibitsor any proposed jury instructions fromplaintiff’s counsel. The district judge notedthat Mr. Vickers had been unprepared at the May28 pre-trial conference and stated that he wasconsidering asking defense counsel to draft a setof jury instructions. The court then took a shortrecess. Following the recess, the court asked defensecounsel whether the previously ordered sanctionfor failure to cooperate in discovery had beenpaid. Defense counsel informed the court that ithad not. The court again noted that at the May 28pre-trial conference “plaintiff’s lawyer wascompletely unprepared and offered no particularexcuse for being unprepared.” The courtrecognized its power to sanction counsel underRules 16 and 37 of the Federal Rules of CivilProcedure for refusal to cooperate. The courtstated “[o]rdinarily, the Court would simplyassess some attorney’s fees and costs and try toget the case back on schedule. But, that’s beentried in this case before and that didn’t work.”The court, citing Mr. Vickers’s failure to paythe previously ordered $285 sanction, his lack ofpreparation for the pre-trial conference, and hisfailure to appear at the jury instructionconference, dismissed the case with prejudice.That same day, the court issued a written orderentering default judgment against Mr. Spain forfailure to prosecute. Mr. Vickers, mistaken as to the time of thehearing, arrived in court at approximately 9:30a.m. on June 3. By this time, the hearing hadconcluded. In chambers, Mr. Vickers told thecourt he never received a written order settingthe time of the jury instruction conference. [FOOTNOTE 1]After being informed that his client’s case hadbeen dismissed with prejudice, Mr. Vickers fileda motion asking the court to reconsider thedismissal which the court construed as a motionto alter or amend the judgment pursuant toFederal Rule of Civil Procedure 59. On July 23, 1998, a hearing was held on themotion to reconsider. The court ordered counselto have their clients present at the hearing. Atthe beginning of the hearing, the followingexchange took place between the court and Mr.Spain: THE COURT: . . . Mr. Spain, have you been toldthat your case was dismissed? MR. SPAIN: No, I have not. THE COURT: You have not? MR. SPAIN: No. THE COURT: Have you been told why I ordered youhere today? MR. SPAIN: I received a letter indicating thatit was for reconsideration. THE COURT: And this is the first time you evenknew your case had been dismissed? MR. SPAIN: Yes. At the hearing, the court heard from Mr. Spain,Mr. Vickers, and defense counsel. Following arecess, the court, citing Mr. Spain’s sympatheticsituation due to his counsel’s actions and theseverity of dismissal as a sanction, granted themotion to reconsider on three conditions. Thecourt outlined these conditions at the hearingand also in a written order dated July 24, 1998.First, Mr. Vickers was ordered to comply with allprevious orders in the case including paying the$285 sanction. Secondly, Mr. Vickers must referhis failure to keep his client apprised as to theprogress of his case and to inform his client ofthe dismissal of his case to both the IllinoisAttorney Registration and Disciplinary Commissionand the corresponding disciplinary authority inMissouri. Finally, Mr. Vickers was ordered to paydefense counsel $2,000 in attorney’s fees to”defer the additional expenses and annoyanceoccasioned by [Mr. Vickers's] conduct in thiscase.” If Mr. Vickers were to comply with theseconditions within five working days, the casewould be reinstated. At the hearing Mr. Vickersexpressed some reluctance to comply with theconditions set out by the court. At that point,the court clearly informed Mr. Spain that Mr.Vickers had “not shown any inclination to complywith the previous orders” of the court and thatif Mr. Vickers failed to comply with theseconditions “the case will be dismissed, or thedismissal will remain effective.” However,anticipating Mr. Vickers’s compliance, the courtstated that the case would be tried on August 25,1998 at 8:00 a.m. In the July 24 written order,the court addressed Mr. Vickers’s expressedreluctance to comply with the conditions asfollows: Mr. Vickers expressed some reluctance to complywith this Order. If he does not, this Court willobtain compliance through its contempt power inorder that the authority and dignity of thisCourt be maintained. Whether Mr. Spain receiveshis day in court is completely contingent uponMr. Vickers’ prompt and strict compliance withthis Order. However, regardless of whether hiscompliance is strict and prompt, it will beforthcoming. The day after the hearing, Mr. Vickers wroteMr. Spain a letter, with carbon copies to thejudge and defense counsel, saying he would notsubmit to the conditions imposed by the districtcourt. The court received its copy of the letteron July 27, 1998, and the next day entered anorder denying the motion to reconsider thedismissal. The court also issued an order for Mr.Vickers to show cause why he should not be heldin contempt of court based on his failure tocomply with the conditions imposed by thedistrict court and on what the court viewed asseveral misrepresentations in his letter to Mr.Spain. Mr. Vickers filed a Motion for Change ofJudge, citing the court’s bias in placing theblame on the plaintiff, issuing an order that wasa personal attack, and seeking to deny bothplaintiff and counsel the right to appeal andright of trial. This motion was denied, andfollowing the show cause hearing, the districtcourt found Mr. Vickers in civil contempt ofcourt, upheld the earlier conditions, and imposeda fine of $50 a day against Mr. Vickers to rununtil he fully complied with the conditions. On July 30, 1998 a notice of appeal was filedin the case, and on September 3, 1998 an amendednotice of appeal was filed, challenging (1) theoriginal default judgment against Mr. Spain, (2)the order granting the motion to amend judgmentprovided Mr. Vickers complies with the threeconditions, (3) the order denying reconsiderationdue to Mr. Vickers’s non-compliance, and (4) thedenial of the motion to stay execution ofjudgment. II. ANALYSIS A. Appellate Jurisdiction Appellee has filed a motion to strike Mr.Spain’s portion of the appeal, arguing Mr. Spainis not a party to this appeal since only Mr.Vickers and not Mr. Spain filed a proper noticeof appeal. We must first decide thisjurisdictional question before proceeding to themerits of Mr. Spain’s appeal. The body of theamended notice of appeal consisted of thefollowing sentence: Notice is hereby given that Eric E. Vickers,counsel for Larry Spain, plaintiff above-named,hereby appeals to the United States Court ofAppeals for the Seventh Circuit for the ordersentered in this action on June 3rd, July 24th,July 28th, 1998 and August 20, 1998. The caption of the appeal stated “Larry M. Spain,Plaintiff v. Board of Education of MeridianCommunity Unit School District Number 101,Defendant.” Federal Rule of Appellate Procedure 3(c)(1)(A)requires a party to name each party appealing inthe “caption or body of the notice” of appeal.Rule 3(c)(4) provides that an appeal will not bedismissed for “failure to name a party whoseintent to appeal is otherwise clear from thenotice.” The 1993 advisory committee notes toRule 3 consider the designation sufficient if “itis objectively clear that a party intended toappeal.” Appellee cites to Clay v. Fort WayneCommunity Schools, 76 F.3d 873 (7th Cir. 1996),to support his Rule 3(c)(1)(A) argument. Clay was a class action suit in which bothparents and their children sued a schooldistrict. The case was dismissed, and on appeal,this court ruled that the children did not havegrounds for appeal since only the parents werenamed in the notice of appeal. Id. at 877. Wereasoned that in not mentioning the children inthe notice, “the adult plaintiffs were appealingall adverse judgments entered against them notjudgments entered against their children orstudent plaintiffs.” Id. We also emphasized theimportance of clarity in the notice of appeal inclass action cases otherwise “class-actiondefendants in actions brought by multipleplaintiffs, would never know which classes wereappealing the court’s decision.” Id. Clay can be distinguished from the facts in thepresent case. Clay was a class action case, andabsent specific notice of appeal, it was unclearwhich plaintiffs were appealing. Here, there isonly one party in this case. Two of the ordersspecifically listed in the notice of appeal arethe order to dismiss Mr. Spain’s case and theorder denying Mr. Spain’s motion to reconsiderhis dismissal. These two orders dealt only withMr. Spain’s case and not with Mr. Vickers’ssanctions. Therefore, under Federal Rule ofAppellate Procedure 3(c)(4), even though Mr.Spain was not named in the body of the notice ofappeal, his “intent to appeal is otherwise clearfrom the notice.” The notice of appeal made itobjectively clear that Mr. Spain intended toappeal. Also Mr. Spain’s name was included in thecaption of the appeal, as required by Rule3(c)(1)(A). Mr. Spain is a proper party to thisappeal, and we may consider his claims on themerits. Appellee’s motion to strike is denied. B. Dismissal and Motion to Reconsider Federal Rule of Civil Procedure 16(f), whichincorporates Rule 37(b)(2)(C), allows a districtcourt to dismiss an action for failure of a partyto attend a pre-trial conference. The court hasthis power in order to “achieve the orderly andexpeditious disposition of cases.” Link v. WabashRailroad Co., 370 U.S. 626, 630-31 (1962).However, the court shall not dismiss a case”without due warning to the plaintiff’s counsel.”Ball v. City of Chicago, 2 F.3d 752, 755 (7thCir. 1993). Due warning does not require thejudge to “notify the plaintiff himself, asdistinct from his lawyer, before dismissing.” Id.at 756. Dismissal should be used “only in extremesituations, when there is a clear record of delayor contumacious conduct, or when other lessdrastic sanctions have proven unavailable.”Kruger v. Apfel, No. 98-4193, 2000 WL 562804, at*3 (7th Cir. May 10, 2000) (internal quotationsand citations omitted). Spain argues that thedistrict court erred both in dismissing his caseand in denying his motion to reconsider. We applythe abuse of discretion standard when reviewingan order to dismiss. National Hockey League v.Metropolitan Hockey Club Inc., 427 U.S. 639, 642(1976). We also apply abuse of discretion whenreviewing the denial of a Rule 59 motion to amendthe judgment. Britton v. Swift TransportationCo., Inc., 127 F.3d 616, 618 (7th Cir. 1997). In the present case, Mr. Vickers, by notattending the jury instruction conference,violated Rule 16(f). In his brief, Mr. Vickersclaims that his failure to attend was thedistrict court’s fault, since the written noticefor the conference arrived late. While the orderdid indeed arrive late, Mr. Vickers was presentat the previous conference where the courtannounced on the record the time of the juryinstruction conference as 9:00 a.m. The fact Mr.Vickers did show up for the conference on thatday, shows that he knew of the hearing and wasnot relying solely on written notice. Since thedistrict court later granted the motion toreconsider upon three conditions, the court didnot “accord favorable treatment to appellee” asMr. Vickers contends. Mr. Vickers received “due warning” that thecase would be dismissed at the reconsiderationhearing. The district court, citing the difficultposition of Mr. Spain, who was not at fault,allowed the case to be reinstated provided Mr.Vickers comply with the three conditions withinfive working days. While the case was stilltechnically dismissed, the court stated that itwould reinstate the case provided Mr. Vickerspromptly complied with the conditions. Therefore,Mr. Vickers had due warning before the case wasfinally dismissed. Not only did Mr. Vickersreceive this warning, but so did Mr. Spain, whowas present for the reconsideration hearing. Atthe hearing, Mr. Vickers, in the presence of hisclient, indicated his reluctance to comply withthe three conditions. The district court receivedMr. Vickers’s letter to Mr. Spain on July 27,1998, three days after the hearing on the motionto reconsider. In the letter Mr. Vickers told hisclient that he would not comply with the threeconditions. The court, reasonably taking thisletter as Mr. Vickers’s failure to comply,ordered Mr. Vickers to show cause why he shouldnot be held in contempt and refused to reinstatethe case. In ordering both the original dismissal and inconditionally granting the motion to reconsider,the court cited several instances of delaycommitted by Mr. Vickers throughout the case.These included failure of Vickers & Associates toprovide initial disclosures, failure to answerinterrogatories, failure to pay the previouslyordered $285 sanction for failing to make initialdisclosures, and lack of preparation at the May28 pre-trial conference. Finally, there was thefailure of Mr. Vickers to attend the June 3 juryinstruction conference. These facts support afinding of a “clear record of delay.” Kruger,2000 WL 562804, at *3. Also the fact that Mr.Vickers did not pay the previous sanction for ayear and a half gave the court grounds to believefurther monetary sanctions would be ineffective,particularly when Mr. Vickers informed his clientand the court that he would not comply with theconditions. While going from a sanction of $285to dismissal may seem an abrupt increase inseverity, Mr. Spain does not claim he was lulledinto a false sense of security. Furthermore, atthe reconsideration hearing, the court”reiterated crystalline warnings of the imminentdismissal of this case.” Ball, 2 F.3d at 757.This was enough for Mr. Spain to be awaredismissal was a real possibility. The district court provided the required warningto both the plaintiff and his counsel. It wasafter this warning that Mr. Vickers informed thecourt he would not comply with the conditions forreinstatement. This warning, combined with theearlier delays and the ineffectiveness ofprevious sanctions, are sufficient to support afinding that the district court did not abuse itsdiscretion in dismissing the case or in denyingthe motion to amend judgment. C. Sanctions Against Mr. Vickers Mr. Vickers also appeals, arguing that thesanctions imposed against him were “illegal.”When reviewing Rule 16(f) sanctions, whether itis dismissal or sanctions against an attorney, weapply the abuse of discretion standard. NationalHockey League, 427 U.S. at 642; Smith v. ChicagoSchool Reform Bd. of Trustees, 165 F.3d 1142,1144 (7th Cir. 1999). In the order on the motionto reconsider, the district court ordered Mr.Vickers to pay the previously ordered $285sanction for failure to make initial disclosures.The court further ordered Mr. Vickers to referhimself to the Missouri and Illinois attorneydisciplinary agencies for failing to inform Mr.Spain of the dismissal of the case. Finally, thecourt required Mr. Vickers to pay $2,000 inattorney’s fees to defense counsel to “defer theadditional expenses and annoyance occasioned by[Mr. Vickers's] conduct in this case.” Prior tothe show cause hearing, but after writing theletter, Mr. Vickers paid the $285 and referredhimself to the disciplinary authorities, whichleft the $2,000 in attorney’s fees. Following theshow cause hearing the court found Mr. Vickers incivil contempt to “compel compliance” with theremaining sanction of $2,000. Mr. Vickers initially argues that the sanctionswere illegal because they resulted from hisletter to his client which he contends wasConstitutionally-protected speech and, therefore,”non-contemptuous.” However, Mr. Vickers fails torecognize that the sanctions were imposed notbecause of his letter to his client, but based onseveral failures and delays in the prosecution ofthe case by Mr. Vickers. In its July 24 orderimposing the sanctions, the court expresslystated that the sanctions were based on “apattern of neglect and slovenly practice” by Mr.Vickers. The July 24 order made clear that,should Mr. Vickers fail to comply with thesanctions, the court would “obtain compliancethrough its contempt power in order that theauthority and dignity of [the court] bemaintained.” At the show cause hearing, the courtnoted “[t]he purpose of civil contempt isessentially to compel compliance” and found Mr.Vickers in contempt of court, not based on thecontents of his letter, but for his failure topay the $2,000 in attorney’s fees that had beenordered. Given the history of delay in therecord, the district court did not err in holdingMr. Vickers in contempt for failing to complywith valid, court-ordered sanctions. Furthermore,Mr. Vickers argues that the court unjustifiablyordered the show cause hearing before the fivedays allotted for compliance with the order hadexpired. However, after receiving a carbon copyof the letter from Mr. Vickers to Mr. Spainstating that he would not comply with theconditions ordered by the district court, thedistrict judge was reasonable by concluding thatMr. Vickers would not comply within the allottedfive days. In fact, at the time of the show causehearing on August 6, 1998, Mr. Vickers had notyet fully complied with the conditions. III. CONCLUSION Appellee’s motion to strike is DENIED. Thedecision of the district court is AFFIRMED. :::FOOTNOTES::: FN1 The record reveals that in fact, the court’swritten order setting the hearing for 9:00 a.m.on June 3 did not arrive at Mr. Vickers’s officeuntil the 10:00 a.m. mail delivery on June 3.
Spain v. Bd. of Educ. of Meridian Community Unit Sch. Dist. No.101 United States Court of Appeals For the Seventh Circuit Nos. 98-2950 & 98-3260 LARRY SPAIN, Plaintiff-Appellant, and ERIC E. VICKERS, Appellant, v. BOARD OF EDUCATION OF MERIDIAN COMMUNITYUNIT SCHOOL DISTRICT NUMBER 101, Defendant-Appellee. Appeals From: United States District Courtfor the Southern District of Illinois Argued: December 8, 1999 Decided: June 6, 2000 Before: HARLINGTON WOOD, JR., COFFEY, and FLAUM,Circuit Judges.
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