Case No. 98 C 5590
November 27, 2000
Pro Se Plaintiff, LORNA E. BARNES
Attorneys for Defendants, MARA S. GEORGES, Corporation Counsel, GEORGE J. YAMIN, JR., Assistant Corporation Counsel, Chicago, IL 60602
MEMORANDUM OPINION AND ORDER
Plaintiff, Lorna E. Barnes, filed an amended complaint against Defendants, the City of Chicago (the "City"), Chicago Police Officers Thomas J. Conway, Patrick Purdy, Erin E. M. Marsh, Luke Kelly, and other unknown Chicago police officers, for damages allegedly arising out of an incident on September 7, 1997. Barnes asserted claims against the officers under 42 U.S.C. § 1983 for use of excessive force (Count II), for denial of Barnes's right to equal protection under the law (Count III), and for conspiracy to violate Barnes's civil rights (Count IV). Barnes also asserted state law claims against the officers for ethnic intimidation (Count V), assault and battery (Count VI), and intentional infliction of emotional distress (Count VII). Finally, Barnes sought to hold the City liable under the doctrine of respondeat superior (Count VIII) and under 745 ILCS 10/9-102, which renders the City liable for torts committed by employees acting within the scope of their, employment (Count IX).
In response, certain Defendants moved for summary judgment on certain counts. On July 27, 1999, the Honorable Suzanne B. Conlon granted summary judgment to Conway, Purdy, and Kelly on Counts II, III, IV, V, VI, and VII; to Marsh on Counts III, IV, V, VI, and VII; to the City on Counts VIII and IX to the extent that Barnes sought to hold the City liable for the conduct of Conway, Purdy, or Kelly; and, on the court's own motion, to other unknown Chicago police officers on Counts II, IV, VI, and VII.
Presently, Barnes moves this Court to sanction Defendants pursuant to Federal Rules of Civil Procedure 26(a)(1)-(4), 37(c)(1), and 56(e) and (g), and to vacate Judge Conlon's judgment pursuant to Rules 26(a)(1)-(4), 37(c)(1), 56(e) and (g), and 60(b). For the reasons that follow, Barnes's motions are denied.
On September 8, 1998, Barnes filed a complaint against the City, Conway, and other unknown Chicago police officers under federal and state law for damages allegedly arising out of an incident at a 7-Eleven convenience store on September 7, 1997. Barnes claimed that several officers, who were responding to a report of a man with a gun, violated Barnes's rights and caused Barnes to suffer injuries. Barnes amended her complaint in November 1998, adding Purdy, Marsh, and Kelly as defendants. In that same month, Judge Conlon established a discovery schedule and set the case for trial. During this time, Barnes was represented by two attorneys.
Defendants incorrectly wrote September 7, 1998, as the date that Barnes filed her complaint on an exhibit to their 12(M) statement. ( See Defs.' 12(M) Ex. G.) Evidently, Judge Conlon relied on this information for summary judgment. See Barnes v. City of Chicago, No. 98 C 5590, 1999 WL 558135, at *4 (N.D. Ill. July 27, 1999).
Shortly thereafter, however, Barnes's relationship with one of her attorneys fell apart and that attorney withdrew, About four months later, Barnes discharged her second attorney. Then, after a brief period during which Barnes appeared pro se, a third attorney filed an appearance on Barnes's behalf. But within months, Barnes discharged this attorney as well. All of this occurred within approximately one year during the discovery/pretrial stage.
Once discovery was complete, each Defendant moved for summary judgment pursuant to Rule 56 on some or all of Barnes's counts. On July 27, 1999, Judge Conlon granted summary judgment to certain Defendants on certain counts. In short, Judge Conlon decided that Barnes had either failed to present sufficient evidence to state a claim as a matter of law or that the applicable statute of limitations had run.
Barnes, still pro se, now moves this Court to sanction Defendants pursuant to Rules 26(a)(1)-(4), 37(c)(1), and 56(e) and (g), and to vacate Judge Conlon's judgment pursuant to Rules 26(a)(1)-(4), 37(c)(1), 56(e) and (g), and 60(b). First, Barnes alleges that Defendants should be sanctioned because Defendants failed to disclose information pursuant to Judge Conlon's November 24, 1998 order and because Defendants presented affidavits in bad faith. ( See Pl.'s Mot. Vacate at 1-3.) Next, Barnes alleges that she is entitled to relief from judgment because Defendants failed to comply with discovery orders, tampered with evidence, and filed fraudulent documents with the court; and because each of Barnes's attorneys "surreptitiously worked in conspiracy with defendants" to "destroy" Barnes's complaint, or otherwise acted improperly. (Pl.'s Mot. Vacate at 3-4; Pl.'s Resp. Defs.' Resp. Pl.'s Mot. Vacate at 3-4, 14.)
In response, Defendants argue that Barnes's allegations of discovery misconduct are without merit, that Rules 26, 37, and 56 cannot provide Barnes with relief from judgment, and that Barnes has failed to set forth specific and substantiated facts entitling her to relief from judgment under any provision of Rule 60(b). This Court agrees.
A. Motion For Sanctions
A movant may invoke Rule 37 to sanction the opposing party for failing to comply with Rule 26(a) discovery procedures, and a movant may invoke Rule 56(g) to sanction the opposing party for submitting affidavits in bad faith. See Fed.R.Civ.P. 37(c)(1), 56(g) (allowing the court to grant the movant expenses incurred as a result of the opposing party's misconduct, including reasonable attorney's fees). Ordinarily, Rule 37 motions are made during the pendency of the action to facilitate discovery, while Rule 56(g) motions can be made at any time. The decision to sanction and of which sanction to impose under either Rule are entrusted to the discretion of the court. See Godlove v. Bamberger, Foreman, Oswald Hahn, 903 F.2d 1145, 1148 (7th Cir. 1990).
This Court considers Barnes's request for sanctions pursuant to Rules 37(c)(1) and 56(g) to be without merit or untimely. Even a most liberal reading of Barnes's submissions reveals only irrelevant or conclusory allegations of Defendants' failure to comply with Rule 26(a). See Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996) (recognizing the special obligation courts have to construe pro se pleadings liberally and give the claims contained therein meaningful consideration); Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir. 1987) (quoting Schilling v. Walworth County Park Planning Comm'n, 805 F.2d 272, 277 (7th Cir. 1986)) (same). For instance, Barnes contends that Defendants should be sanctioned for not disclosing a list of experts. (Pl.'s Mot. Vacate at 1-2.) But Defendants never intended to use any expert testimony at trial. (Defs.' Resp. Pl.'s Mot. Vacate at 6.) And while Barnes repeatedly argues for Rule 37 sanctions because Defendants failed to fulfill their obligations under Rule 26(a)(1), Barnes presents no evidence to support this conclusion. ( See Pl.'s Mot. Vacate at 1-3.) Consequently, this Court is not convinced that any Rule 37 violation occurred, and therefore Barnes's request for sanctions pursuant to Rule 37(c)(1) is denied.
Although Barnes also asks this Court to sanction Defendants pursuant to Rules 26(a) and 56(e), we only examine Barnes's request for sanctions under Rules 37(c)(1) and 56(g) because only these rules provide for sanctions. Rule 26(a) simply sets forth requirements and deadlines for discovery. See Fed.R.Civ.P. 26(a). Similarly, Rule 56(e) merely establishes requirements for affidavits. See Fed.R.Civ.P. 56(e).
To the contrary, it appears that Defendants delivered this information to Barnes's first attorney. ( See Defs.' Resp. Pl.'s Mot. Vacate Ex. A.)
Likewise, Barnes's request for sanctions under Rule 56(g) is denied. Barnes presents no evidence to show that Defendants submitted their affidavits in bad faith. ( See Pl.'s Mot. Vacate at 2-3.) Additionally, this Court's own review of the record satisfies it that Defendants filed their affidavits in good faith.
In any event, at least with respect to Rule 37(c)(1), this Court finds that Barnes has waived any rights that she may have had due to her inaction. See Butler v. Pettigrew, 409 F.2d 1205, 1207 (7th Cir. 1969) (finding that movant waived his rights under Rule 37(b) and (d) by neglecting to move the court until after judgment). Apparently Barnes never delivered a single discovery request to Defendants. In addition, the record indicates that Barnes never filed a motion to compel with the court. If, in fact, Defendants failed to comply with the discovery deadlines in any way, Barnes could have and should have taken action earlier than now. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756-57 (7th Cir. 1994) (affirming district court's denial of movant's motion for Rule 37 sanctions because the motion was untimely). Barnes offers no reason for this nearly two-year delay.
B. Motion For Relief From Judgment
A movant may obtain relief from judgment pursuant to Rule 60(b). See Fed.R.Civ.p. 60(b). To do so, the movant must establish that one of the six bases for relief set forth in Rule 60(b) applies. See Margoles v. Johns, 798 F.2d 1069, 1072-73 (7th Cir. 1986); Lee v. Walgreens, No. 89 C 5175, 1991 WL 23634, at *2 (N.D. Ill. Feb. 15, 1991).
In contrast, Barnes's request for relief from judgment under Rules 26(a)(1)-(4), 37(c)(1), and 56(e) and (g) is unwarranted. See Fed.R.Civ.P. 26(a)(1)-(4), 37(c)(1), 56(e), (g); see also, e.g., Black v. United Bhd. of Carpenters Joiners of America, Local 608, No. 85 CIV. 0036 (MJL), 1990 WL 16137, at *2 n. 4 (S.D.N.Y. Feb. 15, 1990) (attempt by pro se plaintiff to invoke Rule 37(c) to reinstate assault and battery claim). None of those rules affords such relief. Accordingly, this Court examines Barnes's request for relief from judgment only under Rule 60(b).
Rule 60(b) provides the following six bases for relief:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has keen satisfied . . . or
(6) any other reason justifying relief from the operation of the judgment.
Rule 60(b) relief is not granted freely. It is an extraordinary remedy that is available only in exceptional circumstances. See Camp v. Gregory, 67 F.3d 1286, 1290 (7th Cir. 1995); Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994) (quoting Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994)). Whether such circumstances exist is within the sound discretion of this Court. See Tolliver v. Northrop Corp., 786 F.2d 316, 318-19 (7th Cir. 1986).
The mere fact that a litigant is pro se is an insufficient basis for relief under Rule 60(b). See Provident Sav. Bank v. Popovich, 71 F.3d 696, 699-700 (7th Cir. 1995). Furthermore, pro se plaintiffs are not excused from satisfying minimal evidentiary requirements necessary to show that one of the six clauses of Rule 60(b) applies. See, e.g., Lee, 1991 WL 23634, at *3. Vague and unsubstantiated allegations of unfairness or misconduct will not suffice. Instead, the pro se plaintiff must present specific and substantiated facts demonstrating why extraordinary relief is warranted. See Ahmed v. Rosenblatt, 118 F.3d 886, 890-92 (1st Cir. 1997); Lee, 1991 WL 23634, at *3-4.
Here, even the most liberal reading of the pleadings in Barnes's favor directs that her motion be denied. Sufficient facts have not been alleged to warrant relief under any clause of Rule 60(b). As we discuss more fully below, conclusory allegations cannot carry the day.
First, Rule 60(b)(1) offers no relief to Barnes. Rule 60(b)(1) allows relief from judgment entered due to error of the litigant or her attorney provided that a meritorious claim exists. See Ben Sager Chems. Int'l, Inc. v. E. Targosz Co., 560 F.2d 805, 809 (7th Cir. 1977). The error must constitute mistake, inadvertence, surprise, or excusable neglect. See Universal Film Exchs., Inc. v. Lust, 479 F.2d 573, 576 (4th Cir. 1973). On the other hand, ignorance or carelessness by the litigant or her attorney as well as mere dissatisfaction with choices deliberately made by the litigant or her attorney cannot provide grounds for relief. See Bershad v. McDonough, 469 F.2d 1333, 1337 (7th Cir. 1972); Jedrejcic v. Croatian Olympic Comm., 190 F.R.D. 60, 80 (E.D.N.Y. 1999).
We discern from the pleadings that Barnes contends the grant of summary judgment to certain Defendants was somehow caused by the actions of her former attorneys or the fact that she has, at times, appeared pro se. For instance, Barnes repeatedly charges her second attorney, Zedrick Braden, with "destroy[ing] [Barnes's] complaint," not "prosecut[ing] [Barnes's] cause of action," and not complying with discovery dates. (Pl.'s Mot. Vacate at 3.) Barnes also asserts that her third attorney, Henry Synek, prepared a deficient 12N statement. (Pl.'s Resp. Defs.' Resp. Pl.'s Mot. Vacate at 6-7.) Finally, Barnes argues that her complaint was unfairly compromised due to her misunderstanding of the judicial process. ( Id. at 7-8.)
Barnes has not asserted, however, that any of this conduct, assuming it occurred, constitutes surprise, mistake, or excusable neglect. Nor has Barnes explained how any of this conduct caused or contributed to the entry of summary judgment. Thus, this Court refuses to grant Barnes relief under clause (b)(1). See, e.g., Ben Sager Chems. Int'l, Inc., 560 F.2d at 809 (nothing in record to support finding of excusable neglect). To the extent Barnes bases her request for relief on her own confusion while proceeding pro se, this assertion alone is insufficient to entitle her to relief. True, pro se status may be a factor in deciding whether to grant relief, under clause (b)(1), but this assumes that the movant has set forth specific facts indicating that some surprise, mistake, or excusable neglect occurred and that the surprise, mistake, or excusable neglect caused or contributed to the entry of summary judgment. See McKnight v. United States Steel Corp., 726 F.2d 333, 338 (7th Cir. 1984). Again, Barnes has set forth no such facts.
In any event, Barnes has not demonstrated to this Court that she has a meritorious claim against the Defendants who were granted summary judgment. Judge Conlon granted summary judgment to certain Defendants because Barnes failed to allege sufficient facts to establish a prima facie case against them or because the applicable statute of limitations had run. In contrast, where Barnes alleged sufficient facts to establish a prima facie case, those claims remain. Therefore, allowing further proceedings to take place against the Defendants who were granted summary judgment would be an empty exercise — Barnes has not shown that she has a potentially meritorious claim against any of those Defendants. See Teamsters, Chauffeurs, Warehousernan Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992) (movant not entitled to relief from judgment because the movant "did not make any allusion to the viability of its underlying suit").
For instance, Barnes asks this Court to vacate Judge Conlon's grant of summary judgment to Kelly on the excessive force claim (Count II). But Barnes has not presented any evidence demonstrating that Kelly used physical force against her. See Barnes, 1999 WL 558135, at *2-3. similarly, Barnes asks this Court to vacate Judge Conlon's grant of summary judgment to Purdy, Marsh, and Kelly on the assault and battery and intentional infliction of emotional distress claims (Counts VI and VII). These claims are subject to a one-year statute of limitations. See 745 ILCS 10/8-101. Barnes amended her complaint to include these Defenfants after the statute of limitations ran. See Barnes, 1999 WL 558135, at *4. Consequently, these claims are barred.
For example, Barnes's excessive force claim against Marsh remains because Barnes has sufficiently shown that Marsh used physical force against Barnes outside the store and Defendants have not alleged that the claim is barred by the statute of limitations. See id. at *5.
Clause (b)(3) is also inapplicable. Rule 60(b)(3) provides relief from judgment where the opposing party engages in fraud, misrepresentation, or other misconduct. Fed.R.Civ.P. 60(b)(3). It exists to protect the fairness of litigation in federal courts. See Lonsdorf v. Seefeldt, 47 F.3d 893, 898 (7th Cir. 1995). To obtain relief under this clause, the movant must show by clear and convincing evidence that she has a meritorious claim and that the opposing party's fraud, misrepresentation, or misconduct prevented the case from being fully and fairly presented at trial. See Id. at 897.
Barnes fails to satisfy any of the requirements under this clause. First, as discussed above, Barnes has not demonstrated to this Court that any of her claims against the Defendants who were granted summary judgment are meritorious. Second, Barnes's allegations of fraud and misconduct undoubtedly lack the specificity required to set aside the grant of summary judgment.
For instance, Barnes charges Defendants with "criminally flirting with the integrity of the [court]," "willfully and wantonly engag[ing] in `Fraud on the Court,'" "moving illegal motions," engaging in a "conspiracy" with Barnes's former counsel, altering and removing officers from Barnes's videotaped evidence of the incident, and purposefully not disclosing the names of the officers present at the store on the night of the incident.9 (Pl.'s Mot. Vacate Ex. A at ¶ 16; Pl.'s Resp. Defs.' Resp. Pl.'s Mot. Vacate at 3-4, 8.) But Barnes has not explained how Defendants altered the videotape, described the documents that Defendants concealed, or presented the discovery requests that Defendants failed to respond to. See Schultz v. Butcher, 24 F.3d 626, 630-31 (4th Cir. 1994) (finding that a failure to produce requested discovery material may constitute Rule 60(b)(3) misconduct). Certainly more than conclusory allegations must be set forth to establish fraud or misconduct by clear and convincing evidence. See Di Vito v. Fidelity Deposit Co., 361 F.2d 936, 939 (7th Cir. 1996) ("[C]onclusory averments of the existence of fraud . . . unaccompanied by a statement of clear and convincing probative facts . . . do not serve to raise the issue of the existence of fraud, much less to carry the burden of resolving that issue."); compare Lonsdorf, 47 F.3d at 897 (where movant specifically referenced a document and explained how the document was materially altered by opposing counsel), with Black, 1990 WL 16137, at *1. (where movant failed to present evidence that defendants fraudulently or improperly kept information from him).
Finally, even if Barnes could show that she has a meritorious claim against the Defendants who were granted summary judgment and that those Defendants engaged in misconduct, how Barnes was prejudiced is left to the imagination. For example, the videotape that Defendants purportedly altered was not considered by Judge Conlon in her entry of summary judgment. Therefore, Barnes's request for, relief under clause (b)(3) is denied.
Barnes's third basis for relief under Rule 60(b) must be denied as well. Rule 60(b)(4) authorizes relief from judgment where the judgment is void. Fed.R.Civ.p. 60(b)(4). A judgment may be deemed void if the court acted in a manner inconsistent with due process of law. See Grun v. Pneumo Abex Corp., 163 F.3d 411, 423 (7th Cir. 1999). Generally, due process requires that the parties receive notice of the proceedings and be given an opportunity to be heard. See id. A judgment is not void, however, merely because it is erroneous. See, e.g., Lubben v. Selective Serv. Sys. Local Bd., No. 27, 453 F.2d 645, 649 (1st Cir. 1972).
Barnes's contention that the judgment rendered against her is void is unfounded. Ostensibly, Barnes argues that the court denied Barnes a fair opportunity to present her case. ( See Pl.'s Resp. Defs.' Resp. Pl.'s Mot. Vacate at 11.) But the record differs.
Since the date Barnes filed her complaint, the court has provided Barnes with more than a fair opportunity to present her case. The record is voluminous and a review of the docket indicates that all of Barnes's requests for leave to amend or for a continuance have been duly considered by the court. Three different attorneys have appeared on Barnes's behalf, Barnes herself has appeared pro se and argued in court on several occasions, and Barnes's case has been reinstated once. The court has approached this case with an understanding eye and provided Barnes with every opportunity to develop her case. The requirements of due process have surely been satisfied.
Lastly, Barnes falls outside the scope of Rule 60(b)(6). Clause(b)(6) of Rule 60 is characterized as a catch-all clause that allows the court to do justice when relief is not warranted by the preceding clauses in Rule 60(b). See Radack v. Norwegian Am. Line Agency, Inc., 318 F.2d 538, 542 (2nd Cir. 1963). Resort to this clause is even more highly circumscribed than the other clauses, which are already limited in application to extraordinary circumstances. See Provident Sav. Bank, 71 F.3d at 700. Additionally, the movant must make a suitable showing that she has a meritorious claim to be granted relief. See Ahmed, 118 F.3d at 891.
Either gross negligence or misrepresentation by a movant's attorney may provide a basis for relief under clause (b)(6). See Ben Sager Chems. Int'l, Inc., 560 F.2d at 809-11. But "carelessness or a lack of due care on the part of a litigant or her attorney does not." Williams v. Hatcher, 890 F.2d 993, 996 (7th Cir. 1989) (quoting McLaughlin v. Jung, 859 F.2d 1310, 1312 (7th Cir. 1988)). Furthermore, clause (b)(6) cannot relieve a movant of deliberate choices she or her attorney has made. See Lee, 1991 WL 23634, at *4.
We make out from the pleadings that Barnes seeks relief under clause (b)(6) because her second attorney "conspired" with Defendants' counsel, her third attorney "misrepresented" himself as a trial lawyer, and both attorneys compromised Barnes's case in some way. (Pl.'s Mot. Vacate at 3; Pl.'s Resp. Defs.' Resp. Pl.'s Mot. Vacate at 6.) We can only speculate as to the activities Barnes is referring to because she has not alleged any concrete facts upon which her allegations of conspiracy, misrepresentation, or other misconduct could be based. Guesswork and speculation, of course, cannot serve as the grounds for granting relief under clause (b)(6), especially considering the heightened standards that apply. See Provident Sav. Bank, 71 F.3d at 700 ("In a rule already limited in application to extraordinary circumstances, proper resort to this `catch all' provision is even more highly circumscribed."). In any event, again, Barnes has not demonstrated that she has a meritorious claim against the Defendants who were granted summary judgment. This too provides a sufficient reason for denying Barnes's request for relief under clause (b)(6).
In sum, Barnes's motion to., vacate appears to be nothing more than an attempt to argue that, the underlying judgment was wrong. But even if the judgment was wrong, Rule 60(b) does not provide a forum for correcting legal errors made by the court in the underlying judgment. The appropriate way to request review for legal errors is through appeal.
Instead, Rule 60(b) grants relief from judgment where the integrity of the court is at stake. To receive this extraordinary relief, however, the movant must present specific and substantiated facts of some unfairness. Here, Barnes simply spews out several conclusory allegations of fraud, conspiracy, misrepresentation, or perhaps negligence. These bare conclusions, even after reviewing the record and giving Barnes's pleadings a most generous reading, are not enough. Likewise, Barnes's pro se status, by itself, offers no basis for relief. Therefore, because there is no evidence that Judge Conlon's grant of summary judgment was unjust, this Court denies Barnes's motion to vacate.
For the reasons mentioned above, Barnes's motion for sanctions and motion to vacate are denied.