Civil Procedure – dismissal — failure to prosecute

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure – dismissal — failure to prosecute

It was not an abuse of discretion to dismiss a case, where the plaintiff missed two court hearings.

“McInnis attempts to distinguish his conduct by asserting that his second absence was ‘predicated on a misunderstanding as to whether the hearing had been continued.’ As a consequence, he insists, he lacked the willfulness necessary to support a finding of dilatory or contumacious intent. The problem with this argument is twofold. First, McMinnis has never explained his first absence or asserted that he had good cause for missing that hearing. Second, in trying to minimize his absence on November 3, McInnis relies on facts that, even if true, were apparently unknown to the district court. He asserts that he and opposing counsel jointly left a message with the district judge’s clerk requesting a continuance and that he mistakenly believed that their request had been granted. It is troubling that counsel for the Department of Education has not denied McInnis’ account of their phone message, despite allowing— or at least appearing to allow—the district court to believe that no continuance had been requested. But that scenario is not confirmed by the present record, and McInnis’ say-so is not enough. As far as the record shows, the district court knew only that McInnis had been admonished to appear on November 3, that he was trying to retain counsel, that the parties had been unable to reach an agreement to request a continuance, and that McInnis had nevertheless failed to show up. McInnis could have explained his version of events in a motion to reconsider or to vacate the dismissal, see FED. R. CIV. P. 59(e), 60, but having failed to do so there is no basis to conclude that the district court erred in finding his conduct contumacious or dilatory. See United States v. Hoover, 246 F.3d 1054, 1064 (7th Cir. 2001) (Rovner, J., concurring) (explaining that parties to an appeal may not ‘stray beyond the bounds of the record for reasons so obvious and familiar that they scarcely require mention’); McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 795 (7th Cir. 1997) (“Evidence that was not proffered to the district court in accordance with its local rules is not part of the appellate record; it has no place in an appellate brief.”); see also Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir. 1994) (noting that plaintiff’s failure to move to alter judgment and submit evidence corroborating claim of excusable neglect undercut argument that dismissal was abuse of discretion).”

Affirmed.

11-3685 McInnis v. Duncan

Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Per Curiam.