Anilina Fabrique De Colorants, a Belgian Corporation,plaintiff-Appellee v. Aakash Chemicals and Dyestuffs, Inc., an Illinois Corporation

BAUER, Judge, Chief Before PELL, Judge, and POSNER, Circuit Judge. Senior Circuit Judge. PELL, Circuit Senior Inc., Dyestuffs, Chemicals and judgment against appeals from to vacate of its it and denial default.

BACKGROUND Fabrique de Colorants April against Aakash on diversity suit1 it over owed claiming that Aakash shipped had been $18,000 goods which paid for Aakash. not been to but hearing July, status At a court-ordered they judge that parties notified negotiate a settlement. attempting were also informed Aakash’s complaint attached that the exhibits accuracy verify the not sufficient were might and that claim Anilina’s bring counterclaims. hearing, Anili- 29 status

At an October negotia- advised na’s counsel complicated continuing were were tions was located that Anilina by the fact difficult therefore it was Belgium and be- calls meetings and conference schedule Illinois. gium, while Bel- is in principal place of business 1. Anilina's hearing, the close of the At the trial.” principals. their parties tween the officer that to Aakash’s hearing for No- court reiterated status another come lawyer either be- have a conference had “to a scheduled When vember. held, more time to persuade give me to try not be parties could tween re- The parties, settle this case.” you of both have to court, request you, or order, however, indicates hearing to December. minute court’s scheduled 17. No- reset to March had been that trial for case December, court set the In parties. Anilina sent to the tices were not parties 5, 1987, after the March on trial on it was clear appeal that concedes on down. had broken negotiations agreed that go trial not to the case would March 5 that discovery would that parties indicated Both March 17. on the court advised Aakash necessary. or its yet filed answer it had that appeared counsel who Aakash retained negotiations. because counterclaims hearing. at the March on its behalf request, January, at Late continuance, indicat- a requested Counsel leave to granted sought and was counsel previous retained the he had been that counsel, Aakash Acting without withdraw. opposing contact unable to day, had been Anilina to communicate continued to counsel, opportunity had not had an and dispute. resolve the to efforts Aak- files of file or the the court review attorney. court indicated date, prior The ash’s 5 trial March scheduled On the that the ease counsel Aakash’s new against to entry of default sought Anilina none- morning.2 Counsel trial that set for answer file an Aakash, citing its failure continuance, indicating for a asked theless Aakash pleading. responsive other or file an answer. desired that Aakash dispute, that claims, does and com- that indicated further judg- Counsel for of the motion notice prior the transac- because plaint was insufficient that it Aakash and given to ment was sepa- set out to were not tions referred Anilina’s copies of received never paragraphs counts, calling specific rate An officer affidavits. supporting and At attention. complaint to the additional requested and appeared Aakash court entered hearing, the close of granted The court counsel. time obtain commenting it that judgment, try get a to “either March 17 until grant plaintiff unfair would be me to persuade try to here to lawyer in a morning of “on continuance another very uphill, or case, that’s and this continue a “collection case was trial” warned the case.” to settle point Although at one $18,000.” case “headed it was that that Aakash the view expressed time, the court Anilina’s same At the judgment.” stated, “I don’t court also stalling, his was that concern his expressed counsel claims,” and to these any defenses know time to sufficient not have would client days in “10 that he Belgium instructed from to travel arrangements make to set me ask a motion to to file “There is stated, The court trial. for the is on your burden what And March aside.... go to trial [on can way [Aakash] that is to show me it aside set asking me to bring your later, I wouldn’t “... 17]” defense.” meritorious good and have a you can’t be Belgium. There client in 2. MR. or, ash Chemicals. something THE THE find relationship with their them in and I was JAROS giving ^[******] COURT: COURT: Trial. a lot lawyer, make a case retained them this [Counsel time, so I He today. told yesterday afternoon after indicated that for a continuance. your for Aakash]: time previous they lawyer client, so terminated lawyer, after could they could Your there was giving come their Aak- hon- I I was retained stand to the 5th wife of the ance. THE COURT: peared March opportunity to Now, over ^[******] up ... here for two doesn’t principal on the .... last find a someone 5th help more I then night, morning of trial and lawyer. me weeks at that came give reset at all me in, time I to have give some—the trial continu- set the date say, you ap- entered DISCUSSION judgment was The default 19, 1987. A. Jurisdiction. motion, seeking to vacate days, Aakash’s motion ten Within brought purportedly under brought under Rules the default was purporting to be 55(c), 60(b)(6). 59(e), This char Rules 60(b)(6) 55(c), of the Federal 59(e), misleading. Chrysler See acterization Procedure, seeking to vacate of Civil Rules Macino, 363, 364- Corp. v. Credit sought Aakash also judgment. Cir.1983) (distinguishing mo n. 1 and counterclaims file its answer leave to 60(b)).5 55, 59, and tions under Rules definite motion for a more as a well circuit is “that all substantive rule 12(e). Along pursuant statement days entry 10 of the motions served within motion, to the tendered as judgment will be treated based of a and counterclaim a verified answer 59, tolling as the time Rule and therefore president Sat- the affidavit of Aakash’s F.2d appeal.” Daley, v. 799 Charles answer, motion, and coun- The ish Shah. Cir.1986) 343, (7th (citing 347 Harcon to Ani- out Aakash’s defenses terclaims set Rentals, Inc., Barge v. D & Boat Co. G revealed that The affidavit lina’s claims. Cir.1986) (en banc)). (5th 665 784 F.2d counsel withdrew unaware until Shah was Thus, appeal, 2 filed the October notice prior counsel had still January that his days of denial of Aakash’s within 30 complaint.3 to the to file an answer failed motion, timely as to the post judgment is that Aakash his statement support In judgment of default as well as March 19 Anilina, delayed Mr. hindered or had not Fed.R.App. denial of the motion itself. copies of telexes tendered Shah See, Vac-Air, 4(a)(1) (4). e.g., Inc. P. January and Febru- Anilina in had sent to 231, Sons, Inc., 471 F.2d Mohr & v. John for a resolution ary looked which Cir.1973); (7th Ellingsworth v. n. 1 234 cf. dispute. (7th Cir.1981) 180, F.2d 183 Chrysler, 665 2, 1987, denied September the court Director, On Dept. (citing v. Illinois Browder judg- 257, 7, motion to Corrections, Aakash’s vacate 98 434 263 n. U.S. of S.Ct. heavily on the fact (1978)). 556, 7, ment. The court relied 521 560 n. 54 L.Ed.2d been filed and no answer had ever B. Standard Review. go forward on prepared to Aakash was not appeared, 17 when its new entry of a appeal from the On a direct plain- and the maintaining that “[t]he court’s decision judgment, a district default go The prepared to forward.” tiff were Chrys of discretion. is reviewed for abuse motion makes denying 637; order F.2d at see also Corp., 710 ler Credit he in which 1112, (7th of Mr. Shah’s affidavit mention 1118 811 Kilgus, re In an an- he was unaware that Cir.1987). Similarly, indicated that district court’s “[a] also 60(b) The order had not been filed.4 motion vacate swer denial of a Rule subject raised to review judgment mention of the defenses is makes no default Commodity Hal proposed answer of discretion.” by Aakash for abuse Kirsh, 825 F.2d Management v. timely Cycles filed its no- Co. counterclaim. Cir.1987)(citing v. 1136, (7th Tolliver 2, 1138 appeal 1987. on October tice judgment been provides has after 5. Rule 55 Mr. Shah’s affidavit contends that 3. Anilina entered, prior may "in accord by be set aside from Aakash’s contradicted letter 55(c); 60(b),” December letter ad- thus Mr. Shah. counsel to Rule Fed.R.Civ.P. ance with complaint an Mr. Shah that answer vised relief in which controls motions Rule yet had to be filed. sought. may judgment or order from Council District Illinois Laborers' North Central Aakash was order The court's indicates 164, Co., 166 n. 3 842 F.2d Groves & Sons v. S.J. (7th its answer. three to file at least times warned Cir.1988); Boyd, 658 v. see also Marshall warnings given specifically two order cites (construing timely (8th Cir.1981) F.2d 552 represented coun- its former to Aakash brought pursuant as Rule 59 60(b)(6)). warning advised the court and one which sel convey to Aakash. former counsel

877 requirement that (7th 316, might relieve 318-19 Corp., Northrop argue It does set aside. Metropolitan the default be Cir.1986), Inc. Inryco, 1225, (7th was not judgment in this case 1230 “the default Engineering 937, by Anilina. application upon 104 S.Ct. an denied, U.S. entered Cir.), cert. date Rather, the second (1983)). This circuit entered on L.Ed.2d away pro- Aakash could movement for trial where acknowledged some strongly yet disfa been position no answer ... ceed and traditional from the as an true that agree. While it is judgments, well filed.” We voring default aside. to set them for a default had filed a motion increasing reluctance Financial, Inc. v. failure file judgment & Owens based Aakash’s Dimmitt See for the States, answer, minute orders United However, Cir.1987). hearings indicate that March 5 and motion. Nei- acting on its own aside a to set refusal filing of Ani- as a minute order records ther or vacate a states 17 order insulated The March not be lina’s motion. may matter practical being entered true that It is that the default appellate review. Al- open court. stated in subject to an abuse the reasons decisions are these clearer, of our standard, discretion could be though the record discretion is not is but- court’s actions these matters court on assessment the district given by its the abuses unbounded; by the reasons a both tressed the court’s order open it enters court and discretion motion, and then of neither circumstances denying the Rule inappropriate motion, or vacate default aside the Anilina’s both to set refer to fails which purported fail- judgment. emphasize Aakash’s 17. trial on March prepared for to ure be Mountain Inc. v. Engineers, White C.K.S. requirement the that notice We conclude Cir. 1206 726 Gypsum here. See also 55(b)(2) apply not does 1984). Tolliver, F.2d at 318. 786 Judgment. Notice Lack C. of Default of no argues that the lack Aakash Judgment. D. Default to application the Anilina’s tice said, jurisdiction our have As we the de requires that judgment default entry of includes both appeal over this Illi In North Central set aside. fault be refusal to and the default v. S.J. Council District nois Laborers’ consider first “We the default. aside (7th Cir. Co., 842 F.2d 164 & Sons Groves discretion judge abused [her] whether in this argument 1988), oral after decided Chrysler Credit default.” granting requirement notice case, considered we that We believe at 367. 710 Corp., 55(b)(2). Procedure Rule of Civil of Federal here abuse discretion judge did “has who party requires that The rule ab in the default entering the given written be in the action” appeared with faith or willfulness any bad sence hearing on the days before notice three any lesser sanction. employing first out 55(b)(2). Fed.R.Civ.P. judgment. stated, “Failure Central Aakash had First, In North that true it is procedural pre- a serious notice is provide such was not complaint and answered error, circumstances special absent originally sched- go trial pared default be requires notice date, lack of due to but this uled March 5 Central, January. North attorney set aside.” in late withdrawal of Vidal, de- (citing Muniz “forgave” that apparently The court Cir.1984)). (1st time gave Aakash additional fault and own the court’s In new counsel. obtain re- never Aakash that undisputed It is 17 was job on words, counsel’s de- of Anilina’s notice ceived contin- another grant persuade argue does not Anilina judgment. fault While to trial. going before uance exist circumstances” any “special solely by The fact immediately caused Aakash. obtain admittedly did represented Belgian corporation apparently on March Anilina is a lawyer, it was new negotia- as the court sought delayed prolonged a continuance settlement seeking to answer directed, leave as well more than one occasion Anilina tions. On leave to file a motion for complaint, and hearings post- requested that status Yet the court statement. definite a more negotiations poned so settlement that the trial was maintained consistently might proceed. morning used coun- begun to have alternative, drastic, yet ef Finally, less go to trial as unpreparedness to sel’s sanctions were available. Vac- fective Cf. understand the default. for the basis Air, example, 471 F.2d at For encourage settlements desire to pay might required Aakash to trial calendar. How- a current to maintain attorneys’ fees in connection with Anilina’s ever, clear to all con- that was the fact appeal, On the motion for default. the case would not 5 that on March cerned proved claims that lesser sanctions support to our 17 lends go trial on March specify unavailing. Anilina does not what abuse of discre- that it was an conclusion found and we have these sanctions were judgment in these to enter a tion any lesser sanction was ever evidence that Compare Ellingsworth, circumstances. by the court. imposed or indeed considered (reversing denial of Rule F.2d at Thus, ap- did not 60(b) motion where approving apparent lack ‘[W]hile was confusion trial where there pear for attention, opin- diligent we are of the date). about particular imposition of the ion that the Second, the court informed under the circum- sanction was too harsh not if it did that it faced default 5March presented judicial dis- stances here request a continu get counsel and either indicated other cretion should less have Aakash obtained the case. or settle ance ’ steps.... initial extreme request a con appear did who counsel (quoting Sapiro Fire Ins. Id. v. Hartford with the dis complied tinuance. 215, (7th Cir.1971)). Co., We 452 F.2d 217 Compare instructions. trict its discre- conclude that the abused Sys v. Toronado Mfg. Breuer Electric Co. entering judgment. the default tion 182, Inc., America, 187 687 tems of Cir.1982) accord (7th (“[Defendants] were 60(b). Rule E. under Motion Vacate opportunities ... different ed several entry if of default had not Even the Federal requirements of to the conform discretion, we find per an of been se abuse Procedure, they abjectly of Civil Rules its discretion in the court did abuse occasion.”). See to do so on each failed judgment. the default refusing to vacate 552, 554 Boyd, v. 658 also Marshall court’s decision will Ordinarily, the district Cir.1981) judg (8th (“Ordinarily, a default very far off unless the “stand appeared party against a who ment judge relied on forbidden base—if party has not be entered unless should impor consider some factors or omitted to in a that failure to act put on notice been Tolliver, 786 F.2d factor.” at tant relevant him sanc may subject manner certain 319, v. Hilton quoted in Inter Passarella Admittedly, Aakash’s [Citation.]”). tion. 674, (Swygert, 678 810 national trial; go to prepared to was not J., dissenting). pressed “hard Anilina. are neither was We wilful, bad this default the sort to call noted, faced recently a court with As we precursor of the usual conduct that is faith 60(b) the com reconcile motion must a Rule (cit Tolliver, 318 F.2d at 786 dismissal.” defaulting permitting peting interests of Rogers, 357 v. ing Societe Internationale dispute party to contest merits 1095-96, 1087, 197, 212, 2 78 S.Ct. U.S. practical to deal with enabling the court (1958)). L.Ed.2d 1255 administration. judicial requirements also Central, 167. We 842 F.2d at North Additionally, the record reflects “well-estab circuit’s acknowledged this to trial was delay bringing this case complaint. disagree. allegations of the on the merits favoring policy lished good is meritorious if it is at (citing “A defense Pas judgment.” Id. over a give factfinder some so as to deter- 675). Although relief law sarella, F.2d at Bieganek Taylor, to make.” 60(b) mination under (7th Cir.1986). The 801 F.2d com- reme exceptional perceived as must plaint alleged that Aakash owed Anilina retain its for the sanction dy in order shipments different money for several irresponsible to the efficacy as a deterrent proposed goods. Although Aakash’s an- (citing En litigation, C.K.S. id. conduct liability shipment, it admitted for one swer 1206), judg at “default 726 F.2d gineers, others. attached to disputed the Exhibits where generally be set aside should ments purport proposed answer to doc- reasonable moving party acts shipments allegedly ument that some ac- defense alleges a meritorious promptness, cepted by actually rejected it had been action, has not and where complaint to Anilina. The did not returned Passarella, at 675- 810 F.2d willful.” been to resell allege that Anilina unable omitted); F.2d at (citations Inryco, 708 goods, Aakash has raised a returned thus Busick, 1230; 719 F.2d 922 Matter of action for meritorious defense to Anilina’s observed, how Cir.1983). “We also Commercial price under the Uniform defaulting ever, the ‘willfulness’ Code, denying 2-709. In addition to § thread’ ‘common party’s actions complaint, Bieganek allegations of cf. decisions, address through runs our brought a counterclaim at to vacate default ing Rule motions $16,000. The truth of Aakash’s excess of Central, F.2d at judgments.” North or the of its counterclaim denials merit (citing Engineers, C.K.S. Id. While for this court to determine. 1205). defense, meritorious the existence of a First, here that Aak- dispute is no there alone, justify relief un- standing would default. sought to vacate the promptly ash 60(b), ap- the court’s der Rule we believe days filed within motion was Its Aakash’s defens- parent failure to consider Moreover, judgment. entry of the default of discretion under constitutes an abuse es its de- attempted to cure promptly these circumstances. and filing proposed answer fault Third, expressly district court did the Tolliver, F.2d at 786 counterclaims. Cf. had been willful. find that Aakash’s default (it of discretion rarely an abuse 319 appeal so to efforts on Despite Anilina’s case reinstate court to refuse to actions, we do not characterize Aakash’s 60(b) defaulting party where Rule under Commodity Compare, e.g., Hal agree. default). not cured has (noting express at 1138 825 F.2d Cycles, Second, expressly instructed court the default; replete record finding willful establishing a to focus on counsel Aakash’s respect lack of dilatory and conduct with complaint.6 the defense to meritorious court); orderly process of the Coleman the seeking to vacate motion Counsel’s Cir.1987) 1142, 1146(7th Smith, 814 so, deny- yet court’s order judgment did the defaulting following what (default entered the inexplicably silent on the motion ing discovery “litany of party conceded was circumstances, we be- the question. Under unparalleled in the annals perhaps abuse to con- failure that the district court’s lieve at 1231 Inryco, 708 F.2d litigation”); civil constituted this relevant information sider omis (record “replete inexcusable Passarella, of discretion. See an abuse deceits, irresponsibilities”); with sions, and J., dissenting). (Swygert, F.2d at 678 810 (nothing in at 882 Bieganek, “deliberately and Aakash record showed Anilina appeal, contends On disregarded court or willfully defied the de- a meritorious failed to establish has F.2d at Ellingsworth, litigation”); merely fense, it denied arguing that _I’m asking your me to set is on what burden going And to enter a default 6. THE COURT: good you me that days is to show you aside have 10 in which judgment.... And defense. meritorious me to set it aside.... a motion to ask file cles, (expressing prefer F.2d at 1139 disregard for the pattern of (“no willful fact, sanctions, rules”). finding de In or ence for interim orders of the default entry response to warranted un prompt judgment nonetheless fault an proposed of a its tender judgment and case). Although are mind der facts of Engi good faith. C.K.S. indicate its swer desire to maintain of the district court’s ful neers, 726 F.2d at calendar, the here integrity of its facts anything approximating Aakash do not establish Fourth, the record shows contemplated in litigation, al- ignoring situations” not been “extreme had replacement to secure though exemplified it was slow in Hal Com Ellingsworth Following counsel’s withdrawal counsel. Cycles. modities negotiations with continue attempted to course, file an answer the failure to Of appeared at its officers One of Anilina. default. We have due is a serious when trial date. court 5 March judg- upheld refusals to vacate default coun- obtain sternly warned time file ments a defendant failed where continuance, which it did. request a sel to Central; Chrysler answer. See North concedes, clear, as It was we have al- Gory.; Breuer. As Credit 17, yet not be tried March case would simply ready explained, this case does date, the appeared on that file an failure to answer. involve Aakash’s “morning of that it was the insisted rul- entering In denying Rule trial.” The order 60(b) motion, on the March 17 similarly maintains that purported emphasized Aakash’s failure plaintiff and and that the trial date was the merit- prepared for trial on March 17 be go at that prepared to forward were default, notwithstanding its earlier ing the instructed specifically The court time. acknowledgment defenses that the trial would show that counsel to Moreover, motion to vacate claims in its here place to Anilina’s on that date. take default, promptly did. which counsel completely failed to consider the court instructions, Notwithstanding its earlier attempted defense Aakash meritorious motion without denied Aakash’s the court request. specific at the court’s establish claims, mentioning its defenses Anilina’s Breuer, (noting F.2d at 186 Compare solely Aakash’s failure relying instead showing good defendant’s weakness of ready trial on an answer file failure to establish a meritori- cause and its may have been 17. While Credit, defense); F.2d at Chrysler ous insuring that an an- diligent in less than consti- (finding failure to file an answer original attorney after its swer was filed noting absence of tuted willfulness January, not the this alone is withdrew default); Cen- good cause for North preclude which will type of carelessness (inadvertence tral, in not at 167 See, Passarella, e.g., relief. Rule carelessness which does filing is answer (defendant’s in not F.2d at 677 carelessness 60(b)). relief under Rule justify not preclude relief monitoring does not lawsuit strongly worded dissent In view of the 60(b)). default under from case, in we have reexamined stated, is doubt that have there no As we upon and are satisfied majority opinion adequate, less disposal at its the court had case, not particular which seem facts of the sanctions, including assessment drastic by fully considered the dissen- have been in against con attorneys’ fees proper ter, reached was that result “A proceedings. default with the nection purpose is Little appropriate one. dismissal, is a judgment like a default by repeating the facts here served usually be em which should harsh sanction come down on side caused us to situations, or when ployed only in extreme merits over a favoring a trial on the proven less drastic sanctions have other knowledge has case to our judgment. No Ellingsworth, unavailing. [Citations].” princi- that well-established Central, indicated that 185, quoted in at North entirely eroded. been 167; Cy ple has Hal Commodities cf. (7th necessity Corp., 797 Nevertheless, some lis-Chalmers we feel Cir.1986); aspects Repression of the dissent. disregard certain Alliance to End majority City Chicago, dissent observes 742 F.2d 1007 Cir. in a de- found no case which opinion 1984) (en banc); Janik, United States v. in circumstances judgment entered fault (7th Cir.1983); 723 F.2d 537 WGN Conti reversed. of this case was similar to those Video, Broadcasting nental v. United Co. any course, does not cite the dissent Of (7th Cir.1982). Inc., 693 F.2d 622 was an affirmance of in which there case Nevertheless we are disturbed when in circumstances entered entering appellate factor into an decision is appar- case. In his to those of this similar capability judge. that of the of the trial relegate appellate ent zeal to in We have entertained the idea that re- approval a dis- stamping its where rubber viewing appeal, a decision on we should its discretion trict court has exercised decision, judge’s look at the facts and the situation, dissen- being way or rather than influenced one disregard appellate of the one ter seems subjective opinion other our of the situation, in this which arises problems judge’s capability. relative exactly no case is like the fact that case on the facts. We have any other note, however, although do endeavored, although apparently unsuc- timely motion to vacate was filed March dissenter, to cessfully eyes in the September it was not overruled until carefully the various up and consider take 2, 1987, ruling at that time not advert- of this case which cause us aspects factual any way to the merits of Aakash’s proceedings in the dis- that further to hold defenses set forth in the motion to vacate. proper. trict court are later, days previously an- Twenty-eight fact, merely states as a resignation The dissenter from the federal bench nounced majority decision will opinion, his that the imagi- effective. It takes no vivid became judges. by this circuit’s district be resented deep- judge nation to envision that no district We are not unmindful up her ly in an effort to clean embroiled reversed, being presumably happy at calendar, being it must have been the feeling kindred there is some judges heavy caseload each of our district judges; other district occurs to one of the be, may we would Be all this as bears. nevertheless, skeptical any we are that one who runs remind the dissenter oc- great ground of resentment will swell a firm com- tight ship is one who exercises judges of our district part cur on the mand, com- gives inconsistent not one who here. We analyze just what did occur who mands. conduct, paint rosy picture of Aakash’s necessary, view of We think thereof, Anilina contributed or lack ready failure to be concern that dissenter’s developed, as we have the scenario that judge’s in the trial trial leaves a hole recognizes pointed out. Even the dissenter calendar, reemphasize that that was given the “judges would have that some Judge here. Getzendanner the situation chance; others would defendant another never enter- quite clear that she made it Presumably imposed a sanction.” tried the case would be the idea that tained judges.” those are some of “our not think it judge 17. The did on March in the dissenter’s ref We are interested tried, plaintiff pre- was the nor would Judge as one erence to Getzendanner pared for trial. judges in this circuit. district the ablest that dis- observes Finally, the dissenter capability question her even We do not court and the agreement the trial between though has found the necessi the dissenter to matter committed appellate court on a part, in to reverse or other ty, in whole or proper is not a court’s discretion the trial in which she was the wise remand cases is cer- This statement ground reversal. opinion: judge and he wrote the district flies in the face tainly truism for it not a Corp., Corp. America v. CTS Dynamics hesitated, never this court has (7th Cir.1986); the fact that v. Al 805 F.2d 705 Hunter the defendant’s counsel court had danner allowed that a trial it determined when him) (the fired but defendant had discretion, judg- withdraw reverse the its abused 5 trial date would stated that the March the disagreement between This is a ment. complain The defendant did not stand. any way trial and the court court appellate yet being unduly, rushed that it was when has never it and this court you look at round, trial, day rolled March set for duty to determine from its abdicated In- new counsel. it had to obtain failed record an on the there has been whether stead, ap- an executive defendant of discretion. abuse time. There peared pleaded and for more its abused conclude forewarning, and the had been no refusing entering to set and discretion dismayed. gave de- properly She judgment. The aside persuade her not to till March 17 to fendant is VACATED and of the district filing any- hold it in Instead default. proceed- REMANDED further cause long thing overdue answer— —even ings. appointed counsel for the defendant newly Judge on appeared before Getzendanner POSNER, Judge, dissenting. Circuit asked her for a March and continuance. her judge did not exceed district The day, previous hired the He had been authority granting file, and there- not had time review it In decid- refusing to set aside. then and why prepared to offer reasons fore was not otherwise, my cross the line ing brethren not be held his client should default. responsibili- powers separates the (The defendant, year, after almost a full those of a appellate of an ties answer.) filed its This too still had not will be resented court. This decision trial late, Judge Getzendanner directed judges and is a setback to by our district having judgment, and entry of a default judicial administra- the cause of efficient done so later to exercise discre- refused of default is one of The threat tion. under to set aside. tion Fed.R.Civ.P. important tools for judges’ most up in corporate litigant to show For a compliance litigation sched- obtaining day court on of trial announce today. by our decision ules. We blunt it (without forewarning) pro- it cannot suit, (a filed in a routine commercial it has not retained This is ceed because counsel se, pro company proceed to collect April by Belgian corporation cannot course) $18,000 price goods sold is inexcusable conduct merits purchase in- sharp punishment up to swift and paid to the defendant but and delivered entry judgment. cluding the of a default in federal court for suits for. Commercial condoned, If such conduct would make tried; gen- rarely amounts are such modest impossible for our overburdened they stalling, either are erally, after some Having manage their dockets. courts The de- or the defendant defaults. settled January, and its counsel in know- fired old did not file an answer in this case fendant begin was scheduled that trial to, Judge supposed Get- it was obliged defendant was either July 7. gave it an extension zendanner promptly or to retain advise new (a defend- generous extension This was inability to so. promptly of its do the court days in court has ant federal as a neither course and took defendant complaint), which to answer appearance without counsel result Judge July filed on Getzen- answer was from the blue. as a bolt March came judg- entered a could have danner explained why it wait- defendant never there, let but instead she ment then and new counsel. March 16 to obtain ed till and, pass without deadline comment given the de- indeed, De- gave judges until would later Some chance; would have generous others Another fendant another 7 to answer. cember sanction, one a a lesser than ignored. imposed Mean- a but gesture deadline —another (though since the entire begin judgment to on default had been scheduled while trial $18,000, only the case are in this 5, Judge stakes January, 1987. In Getzen- person only if “no reasonable judgment sanction a lesser between difference deci- district court’s agree with the slight). could might be default sanction the Northrop Corp., 786 v. Tolliver dis- sion.” Getzendanner, the ablest one of Judge Cir.1986). “Despite the 316, (7th her recent circuit before in this judges trict or of dismissal of the sanctions harshness from the resignation regretted and much consistently default, have federal courts her ship, it was tight bench, ran good of a excuse in the absence to the affirmed reacted so. to do She prerogative v. dilatory conduct.” Patterson the harshly for than shenanigans more defendant’s 280, 852 F.2d Bottling done; Coca-Cola more harsh- have would judges some Cir.1988). (7th panel of this majority than a obviously, ly, have (or it would thinks done would principles these recognition of I find limits of the not exceed done); did she case. Nor in this majority’s opinion in the manage to judge authority a trial in any case which opinion does that cite her docket. using for the reversed judge was district to similar in circumstances sanction default not wheth- is for this court question failure to case. The present the those of Judge Getzendanner agree with what er we day is the scheduled appear for trial on unreasonably. she acted did; it is whether default, it because particularly serious is the fun- this distinction blurring of in his a hole judge the leaves with majority opinion. in the flaw damental dismissed, the calendar; if, being instead of ignore em- are not free we Cases compete trial, it will rescheduled case is the district court’s breadth phasize the limited judge’s cases for the other aas sanction use discretion to trial time judge’s civil A federal trial time. from dis- parties preventing device pressures tight, of the especially is because manage- essential orders regarding Act, governs Speedy Trial which of the caseload. court’s “[T]his ment of the trials. criminal posi- the traditional away from moved has are judgments found a have not my tion ... [default] while brethren But increasingly are entered strongly judgment disfavored. a default case which set them this case reverse refusals those of reluctant to similar circumstances Financial, Inc. look- reversed, even easy, & Owens is without aside.” Dimmitt (7th States, circuit, cases where to find other v. United deciding even Cir.1987). wheth- affirmed judgments were [in default “[T]he and, considerably if he judgment provocation a default the though er to enter example, it, present case. For whether in the already entered less than Macino, 710 Corp. bur- imponderables weighing Chrysler Credit is aside] —the Cir.1983), upheld we (7th (which say 367-68 docket on his den by a member opinion written litigants), distur- —in to other inconvenience district case—the present in the legitimately majority created expectations bance judg- a default to vacate refusal judge’s inroads judgment, default when, two entered he had principle that ment and essential general due, the had been hand, the answer after end, one months on the litigation must it. In Breuer not filed allowing still had injustice of hand on the other Systems v. Toronado Mfg. Co. stand, Electric judgment to Cir.1982), (7th America, Inc., merits of both turn is a function a default to vacate upheld the refusal the we claims and substantive movant’s identical almost in circumstances committing the excuse for strength of his remarkably, in Most in Macino. so to those of decision the standard default. With District Laborers’ Illinois ability to North Central multifaceted, appellate Co., 842 & Sons v. S.J. Groves the Council application judge’s fault the district Cir.1988), upheld limited, scope of F.2d quite standard is set it (and, a refusal again, therefore review judicial effective days after or two one aside) entered can set aside 1193. We slight.” Id. com- answering the 20-day period vacate judge’s refusal to gg4 the defendant’s passed without

plaint later, upon A month

filing its answer. (which complaint plaintiff’s

discovering the defendant's of- mislaid

had been aside the

fices), moved to set the defendant The default no avail. —to willful, yet than rather inadvertent court. Here we cannot

upheld the district was inadvertent say that the default

even willful, has for the defendant than

rather retaining delay in new

yet explain its original one. The it fired

counsel after give “a failed to conduct,” dilatory Pat- for the

good excuse Bottling supra,

terson v. Coca-Cola 284; yet to indicate the cause it has dilatory In none of the cases conduct. the default affect the dis-

I have cited did judge’s trial calendar.

trict distinguish

My are not able brethren majori- in the

these cases. observation exactly like

ty opinion that “no case is either a truism case on the facts” is

other stare decisis. This case rejection

or disagreement

comes down to a between appellate court in a court and the discre- to the trial court’s

matter committed

tion, not a disagreement and such ground for reversal.

proper Justice, Richman, Dept, of Marc U.S. D.C., defendants-appel-

Washington, lants. Ill., plain- Seng, Chicago,

Michael P. tiff-appellee. BAUER, Judge, Chief Before KAGANOVE,

Arlene S. RIPPLE, CUDAHY, and Circuit Plaintiff-Appellee, Judges. RIPPLE, PROTECTION Judge. ENVIRONMENTAL Circuit AGENCY, al., et Agency Protection The Environmental Defendants-Appellants. the dis (EPA) appeals from a EPA, pursuant No. 87-2286. ordered the trict court that (FOIA), Act of Information to the Freedom Appeals, United States Court “Merit Pro a document entitled to release Seventh Circuit. (Rating Rating Specifications” Plan (N.D.Ill.1987). Plan), Ar F.Supp. Argued 1988. an unsuc Kaganove, appellee, lene Sept. Decided posi to a promotion for a cessful candidate Pro “Supervisory Environmental tion as a the EPA. The Rat Specialist” with tection created two-page document ing Plan is a

Case Details

Case Name: Anilina Fabrique De Colorants, a Belgian Corporation,plaintiff-Appellee v. Aakash Chemicals and Dyestuffs, Inc., an Illinois Corporation

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 15, 1988

Citation: 856 F.2d 873

Docket Number: 87-2599

Court Abbreviation: 7th Cir.