From time to time, the Seventh Circuit issues an opinion criticizing a lawyer which has appeared before it (you can access some of those by selecting the "Professional Conduct" topic in the right-hand column). On November 8, 2011, the Court issued an opinion in
, ___ F.3d ___ (7th Cir. 2011), Case No. 10-3430, which demonstrates why this is unfortunately necessary.
less..
An employee of the Department of the Navy filed with the EEOC, claiming that she had been discriminated against on account of race, sex, national origin, age, and disability. The EEOC found the claimant's charge unsupported. The woman then filed a complaint in federal court that repeated the administrative allegations.
After the district court set a discovery schedule, nothing happened in the litigation until 7 months after the discovery deadline had passed, when the plaintiff moved for judgment on the pleadings. The motion incorrectly asserted that discovery was unnecessary because the proceeding was an "appeal" from the EEOC’s decision, when it was not. The motion did not discuss the administrative record or present any evidence. The district court denied the motion.
Again, the plaintiff did nothing. After more than a year of inaction after the district court denied the motion for judgment on the pleadings, the district court dismissed the action for want of prosecution. Plaintiff's counsel then filed an "Ex Parte Motion to Vacate Dismissal," which argued that the local rule allowing dismissal for want of prosecution was unconstitutional. The district court denied the motion because the plaintiff deliberately failed to serve the defendant.
Plaintiff's counsel then appealed. That was a mistake.
Counsel's next step was an appeal. He might have argued that the district judge acted precipitately. Although the judge waited more than a year after denying the motion for judgment on the pleadings, a court ordinarily should warn the litigant that inaction puts the suit in jeopardy.
Gabriel v. Hamlin, 514 F.3d 734, 737 (7th Cir. 2008);
Ball v. Chicago, 2 F.3d 752, 760 (7th Cir. 1993). The district judge did not issue such a warning. Yet Sambrano does not rely on this principle or contend that the judge abused his discretion. Instead the brief maintains that Local Rule 41.1 violates the fifth amendment's due process clause. At least we think that this is the brief's argument. It is almost unintelligible.
The Court goes on to describe a couple of ways that the brief is bad (mangling the summary of argument and standard of review) before going on.
The remainder of the brief is similarly wretched. For example, the statement of appellate jurisdiction is incoherent. It invokes
Circuit Rule 28(a)(3)(ii), which is not a source of appellate jurisdiction, and the
Cohen collateral-order doctrine, even though the district court entered a final decision ending the suit. Counsel also violated
Circuit Rules 30(a) and (d). Rule 30(a) requires the appellant to include, "bound with the main brief, an appendix containing the judgment or order under review and any opinion, memorandum of decision" or other equivalent statement of reasons. Rule 30(d) requires counsel to certify compliance with Rule 30(a). ... Joaquin included a Rule 30(d) certificate, but it is false. The district court filed two short memoranda explaining its decisions (first to dismiss, and then to deny the motion to vacate the dismissal). Neither of these explanations is in the appendix—though Joaquin did put in several documents, such as his "EX PARTE MOTION TO VACATE DISMISSAL" and a post-decision affidavit by his client that Rule 30 neither requires nor allows in the appendix to the brief.
This appeal is frivolous. It bypasses the only possible argument (that the district judge abused his discretion by dismissing the suit without first warning Joaquin about the risks of procrastination) while advancing an argument with no prospect of success (that Local Rule 41.1 is unconstitutional, a contention unsupported by argument or any attempt to address
Link). The Navy's brief as appellee points this out and adds that Joaquin
did not preserve his argument in the district court. (Recall that the judge struck the post-judgment motion, rather than addressing its merits, because Joaquin had failed
to serve the adverse party.) Joaquin then bypassed his opportunity to file a reply brief and, a few days before the date set for oral argument, filed a motion to waive argument. We granted that motion, because there was no reason to compel the Navy's lawyer to waste any more time, but if Joaquin thought that the maneuver would lead the court to overlook his sorry performance—in the district court as well as this court—he was mistaken.
... Sanctions such as orders to pay the other side's attorneys' fees may redress injuries done to put upon adversaries, but they do not redress injuries a lawyer may have done to his own client. We have no idea whether Sambrano had a good claim against the
Navy—but we do know that, if she had, Joaquin massacred it.
The Court ordered the plaintiff's attorney to show cause why he should not be subject to monetary sanctions and censured, suspended, or disbarred "on account of his apparent inability to practice competently and diligently in federal courts."
Now stop rubbernecking and get back to work.
