G. Heileman Brewing Co., Inc. v. Joseph Oat Corporation

648 So, naturally, the district court questions also read revive an ground abandoned complaint deprivation limited to as a See, e.g., reversal. Heil v. Morrison (the

property rights “or con- otherwise” 546, Corp., (7th Knudsen 863 F.2d 548-49 cluding passage quoted earlier from Cir.1988) Hornick, United States v. the district opinion court’s was throwa- 1156, (7th F.2d Cir.1987); Bonds v. way) analyzed accordingly. the case Co., Coca-Cola (7th F.2d Cir.1986). The ground contract was argument

Until oral in this court—which by being waived abandoned and the (or proper was too late advancing new what is ty ground properly rejected. was the same thing, reviving abandoned) The dis missal grounds of the suit is reversal—Lim therefore acquiesced in the district interpretation court’s of his AFFIRMED. case. opening His and reply briefs argue only that he deprived was RIPPLE, Judge, Circuit dissenting. property rights. The sole reference to con I would judgment reverse the of the dis- tract is as a source of property rights. trict court and remand the case for further Property rights normally do arise out of proceedings. my view, complaint contract, every but not contract creates a adequately alleges racially based interfer- property right. Psychological Illinois ence with the contract rights of appel- Falk, Ass’n v. supra, 1344; 818 F.2d at lant. I do not believe that say we can Brienen, Brown v. 722 F.2d 363-65 the claim was waived in the district court. (7th Cir.1983). In particular, a contract Nor do I read the appellant’s brief as waiv- right merely specified procedures—the ing question in this Therefore, court. only right that Lim possessed appli as an under the stands, law as it now appel- cant for reappointment to the medical staff right lant has a to progress beyond the after his one-year current appointment was pleadings and, initial view, in my it was up property not a right in the constitu —is error for the district court to cut off the tional sense. See Rаcine, Archie v. City of litigation so summarily. 1211, 1217(7th 847 F.2d Cir.1988)(en banc), there; and cases cited also cited in cases Jurich, Shango v. Cir.1982). True, many of the cases cited

these opinions, two itself, like Shango in liberty

volve rather property; than

some are property cases, Archie, as was

and the principles are the same in both types of true, case. And none of these is a G. CO., HEILEMAN INC., case; BREWING contract all are cases where a state Plaintiff-Appellee, statute, ordinance, or regu administrative lation had procedural created right. But we cannot see what difference it makes CORPORATION, JOSEPH OAT whether procedural right is created Defendant-Appellant. statute, ordinance, regulation, or other public enactment; No. 86-3118. a contract between a public agency plaintiff; or, and the here, United States Court Appeals, by private contract. Contracts can create Seventh Circuit. property rights, but a contract that creates merely right procedure Argued does not May 20, create 1987. a property right within the meaning Rehearing En Sept. Banc 1988. process due clause. Decided March Having staked his all on showing that he deprived was of property in sense, Lim

cannot be allowed reverse field at oral

argument agile and in response to our Metzner, Bell, Carroll Metzner & Gier- II. THE APPEAL hart, S.C., Madison, Wis., defendant-ap- Oat Corporation appeals, claiming that pellant. the district court did not have the authority Florsheim, Richard S. Thomas Shriner, L. litigants represented order by counsel to Jr., Lardner, Foley & Milwaukee, Wis., for appear pretrial at the settlement confer- plaintiff-appellee. Specifically, ence. Corporation Oat con- BAUER, Before Judge, Chief that, tends by negative implication, the lan- CUMMINGS, WOOD, Jr., CUDAHY, guage 16(a)(5) of Rule prohibits a district POSNER, COFFEY, FLAUM, court directing from represented litigants

EASTERBROOK, RIPPLE, MANION pretrial attend is, conferences.1 That KANNE, and Circuit Judges. because Rule expressly refers to “attor- neys parties for the unrepresented any KANNE, Judge. Circuit parties” in introductory (a), paragraph May a federal district court order liti- distriсt court may go not beyond that' lan- gants those by counsel —even guage procedures to devise which direct appear person —to it in pretrial before at a pretrial appearance parties repre- of discussing of sented counsel. Consequently, Oat Cor- posture litigants’ and settlement of the poration concludes that the court lacked case? After reviewing the Federal Rules the authority order pretrial attend- of Civil Procedure and federal district ance of its corporate representatives and, courts’ manage and even if the possessed court such authority, control the litigation them, before an- the court abused its discretion to exercise swer question in the affirmative and in this Finally, case. Oat Cor- conclude that a district court sanction poration argues that the court abused its litigant failing for to comply with such discretion to enter sanctions. order. I. BACKGROUND Authority A. to Order Attendance A federal magistrate Joseph ordered Oat First, we must address Corporation’s Oat Corporation to “corporate send a represent- contention that a federal district court ative with authority to settle” pretrial to a lacks the authority to order who conference to disputed discuss factual and by counsel at a legal issues and the possibility of settle- pretrial conference. analysis Our requires Although ment. counsel for Oat Corpora- us to review the Federal Rules of Civil appeared, tion accompanied by another at- Procedure and district courts’ inherent au- torney who was speak authorized thority to manage the progress litiga- of behalf the principals of the corporation, tion. no principal corporate representative Rule 16 personally addresses the attended use the cоnference. The conferences to formulate and narrow determined that the is failure of Oat sues for trial well Corporation as as to discuss send a means principal of the cor- poration dispensing with the costly need conference violated unnecessary litigation. its order. As we Consequently, stated in the district court Link v. R.R., imposed Wabash $5,860.01 sanction of upon Oat (7th Cir.1961), Corporation pursuant aff'd, U.S. S.Ct. Federal 1386, 8 (1962): L.Ed.2d 734 16(f). Civil Procedure This amount repre- sented the and attorneys’ costs fees of the procedure Pre-trial has become an inte- opposing parties attending the grated conference. part of the process on the 16(a)(5) provides: ence or conferences before pur- trial for such (a) Conferences; Objectives. poses Pretrial any action, the court in its discretion direct attorneys (5) unrepre- facilitating the settlement of the case. sented before it for a 16(a)(5). confer- Fed.R.Civ.P. completely do not Procedure Rules of it Civil use free to must level. Courts trial power of the limit the describe and operation. enforce to control Investors, Inc. v. Property courts. HMG Otherwise, orderly administration Canas, Inc., 847 F.2d Rio Parque Indus. from control removed

justice will omitted). Cir.1988) (citations (1st 908, 915 the hands placed in trial such believe do not counsel. exercise district courts concept that contemplation is within course explicit authority outside procedural law. procedure civil language of the rules documented, but valid frequently litigation has Bank Brockton Sav. nevertheless. aas means and used advocated been 5, Co., Marwick, Pete, & 771 F.2d Mitchell dockets, overcrowded alleviate denied, Cir.1985), 475 U.S. cert. (1st 11 types varied numerous practiced (1986). 1204, L.Ed.2d 317 1018, 89 106 S.Ct. many techniques for settlement of acknowledged has Supreme Court Liti- The See, Complex for e.g., Manual years. of Civil Federal Rules of the provisions Ju- (1985); 2d, Fеderal 21.1-21.4 gation §§ exclu to be the are not intended Procedure Strategies Center, Settlement dicial for by taken authority for actions (1988); sive Federal Judges District Federal R.R., 370 v. Wabash district courts. Dink in the Judge’s Role Center, The Judicial 1386, L.Ed.2d 734 626, 8 82 S.Ct. (1977) (presented U.S. Suits Civil Settlement of (1962). judges); newly-appointed for seminar at a Center, The Role Judicial Federal of Link, noted that Supreme Court (1977). Process the Settlement Judge in in a action ability to take district court’s expressly provided 1983, 16 has Rule Since in grounded may be context procedural “ several is one of a case of or by rule not power,’ governed ‘inherent and dis- pursued should which subjects necessarily vest- by the control statute but confer- during pretrial vigorously cussed affairs so manage their own in courts ed ences.2 expeditious orderly and as to achieve 630-31, 370 U.S. cases.” disposition of not Rule 16 of does language The omitted).3 (footnotes This 1389 82 S.Ct. at upon the district any direction give for con- forms the basis authority likewise authority to order a court’s of the issue tech- procedural of development tinued counsel who are operation designed to make Instead, niques proceedings. for efficient, preserve more the court participation refers to merely 16 Rule process, of the integrity attorneys of record of trial advocates — the rules Because dockets.4 courts’ However, control the Federal se litigants. pro proce specific examples (court discussing 16(c)(7) states: 2. Rule con dures, punish for power to as the such Con- (c) Subjects Pretrial to be Discussed friv persons who file tempt, power to sanction any conference participants at The ferences. whether determine pleadings, olous action and take consider this rule under — U.S. -, granted, jurisdiction), cert. there respect to 773; 781, v. Jack Stranded 102 L.Ed.2d 109 S.Ct. Cir.1988); 884, (7th Cоunty, 886 838 F.2d son use (7) of settlement or possibility Angeles, 782 Housing Auth. Los Thompson v. dis- procedures to resolve extrajudicial denied, 829, Cir.), (9th 479 U.S. cert. 831 F.2d pute; .... (1986); 112, Halaco 829, 60 L.Ed.2d S.Ct. 93 107 16(c)(7). Fed.R.Civ.P. 376, (9th Costle, Cir. 380 F.2d Eng'g v. 843 Co. long "the held that has Supreme Court Supreme has Court 1988) (court stating those federal courts powers of inherent inherent has recognized a district of all oth- necessary to exercise ‘are which discovery impose sanctions authority to ” Piper, 447 U.S. Roadway Express, Inc. ers.’ violation be a technical abuses which 2463, 2455, 488 764, L.Ed.2d 752, 65 100 S.Ct. rules). discovery Good- Hudson & States v. (1980) (quoting United requiring judges district practice of some 32, 34, 32, L.Ed. 259 win, U.S. 3 11 7 Cranch (or by person (1812)). par- part and has been representative) corporate many conferences of such Newman-Green, cel years. Inc. v. 4. See Alfonzo-Larrain (6th LaMarre, 756 494 F.2d banc) In re Cir.1988) (en See R., 921-22 shape aspects ‍​‌‌‌‌‌​​‌‌​‌​‌​‌​​​​‌‌​​‌​‌‌​‌​​​​‌​‌​​‌‌‌‌‌‌​​‌‍form and certain place a court’s is no procedural the federal civil powers, yet allow the continued system proposition that rules hav- exercise of that where discretion ing statute, the force of though in der- available, should be the mere absence ogation law, of the common are to be strict- language in specifically federal rules ly Wright Miller, construed. C. A.& Fed- authorizing describing particular judi- eral Practice and Procedure: Civil 2d procedure not, cial not, should and does (1987). § give negative rise to a implication prohi- spirit, intent, “[The] [of Link, bition. 629-30, See 370 U.S. at broadly remedial, is ... allowing courts 16] 1388;5 S.Ct. at see also Fed.R.Civ.P. 83 actively manage the preparation of cases (“In all provided rule, cases not Baker, for trial.” In re 744 F.2d judges district magistrates may regu- (10th Cir.1984)(en banc), denied, cert. practice late their manner not incon- 471 U.S. 105 S.Ct. 85 L.Ed.2d sistent with rules or those these (1985). designed 16 is not as a they act.”). district in which device to restrict or limit the authority of court, Obviously, district in de judge in the conduct of vising means it, to control cases before conferences. As the Tenth Circuit Court of may not its authority exercise inherent in a Appeals sitting en Baker, banc stated manner inconsistent with rule or statute. spirit “the and of the amendments As we stated in Strandell v. Jackson to always Rule 16 within been County, (7th 838 Cir.1988), F.2d 886 power inherent of the manage courts to power such should “be exercised in a man their affairs independent as an constitution ner that is in harmony with the Federal al government.” branch of Id. 1441 Rules of Civil Procedure.” This means (citations omitted). that “where the directly rules mandate a specific procedure to the exclusion oth of agree with interpretation We of ers, authority inherent proscribed.” Rule 16. wording of the rule and the Landau Cleary, & Ltd. v. Hribar Truck accompanying commentary plain make Inc., ing, 867 Cir.1989) the entire thrust of the amendment to Rule (emphasis added). urge 16 was judges to make wider use of case, In this we required are deter- powers their and to manage actively their mine whether a power court’s to order the early stage. dockets from an We therefore pretrial appearance litigants of are who interpretation conclude our of Rule 16 represented by with, counsel is inconsistent to allow district represented courts to order or derogation of, Rule 16. must pretrial settlement con states, remember that with unmis- ferences merely represents another applica clarity, takable that the Federal of Rules tion of judge’s district authority inherent Civil Procedure “shall be construed to se- preserve the efficiency, impor more just, cure the speedy, inexpensive de- tantly integrity, judicial process. termination every action.” This lan- guage explicitly summarize, To indicates that the simply we hold that the rules are to be liberally action construed. taken the district court in this Cf. 495, 507, Hickman v. Taylor, 329 U.S. 67 case constituted proper use of inherent 385, 392, S.Ct. (1947). 91 L.Ed. 451 There authority to aid in accomplishing pur- Cir.1974) (court stating that it is well within the ent to do so and that it found was not scope of a compel district court’s an abuse discretion to dismiss the lawsuit. appearance party’s insurer at a “Courts powers exercise their inherent order). conference and to enforce the invoke dismissal as a sanction situations in- volving disregard orders, rules, Link, by parties counsel, plaintiffs or who was aware of Link, conference, settings.” ted). (citations 291 F.2d at 546 deliberately omit- to at- failed Supreme tend the The Link, Court conference. The district affirmed this ratio- court dis- though missed the suit even nale. Federal U.S. at Rules of 82 S.Ct. at Civil Procedure expressly provide (1962). did not for it. L.Ed.2d 734 recognized Our court the district inher- court’s possibility to consider in order reaffirm 16. We of Rule intent pose and settlement. aof notion very na- from the judge district in her set forth Judge Crabb As Chief —derived office—is his existence ture review: we now which decision Federal which field over the broad magis- that the ... indication There no In- applied.6 Procedure of Civil Rules requiring Jo- contemplated trate’s order means authority remains herent any particular agree to seph Oat ... circum- deal judges district which agree even to or form settlement ad- specifically or proscribed stances requirement at all. statute, must which by rule dressed that the magistrate was by the imposed speedy, just, promote addressed Corporation] be Oat representative [of every ac- determination inexpensive settle, authority to with full present tion. proposed for settlement terms should Corpora- acceptable to that were [Oat Authority B. Exercise of tion]. Attendance Order Joseph Co., Brewing Inc. Heileman G. 276-77 F.R.D. that the Corporation, determined

Having Oаt authority to order (1985). possessed at the where a situation If this case conference,7 now rep- corporate had sent a Corporation Oat abused the court whether must examine because and was sanctioned resentative order. issue such discretion an offer to make refused person is, refused to submit money pay —that outset, important it is theAt faced would be coercion—we settlement coerce cannot court a district

note that issue—a situation decidely different awith Smith, F.2d 771 Kothe v. settlement. countenance. we would not case, considera Cir.1985).8 (2d this In 669 Notes to Advisory Committee because generated has been ble concern pur- is not “[although it the 16 state that representa “corporate court ordered the impose settlement 16(b)(7)to of Rule pose the to attend settle” tives with is be- unwilling litigants, it negotiations view, “authority to set In our conference. neutral forum providing a case, lieved of this tle,” in context used the when it.” might foster discussing representative” [settlement] “corporate the means that note, advisory committee’s 16 Fed.R.Civ.P. re was pretrial conference attending clearly (1983). Moreover, trate’s order was powers prior made “[b]eeause to the date pretrial shielded from the direct controls, democratic conference resumed. Oat Cor- they poration must be with contacted magistrate’s exercised restraint and the office discretion.” Express, concerning Roadway the requirements v. Inc. order’s Piper, 752, 764, 447 U.S. 2455, was S.Ct. advised of requirements the now at 2463, (1980) (citation 65 L.Ed.2d 488 However, issue. omit- Corporation Oat never ob- ted). However, the jected facts and terms, circumstanc- to its either when it was es of this case clearly support the issued or court’s when Corporation Oat sought require actions to the corpоrate representa- clarification. Consequently, Corpora- Oat tives of the attend the tion was left with one course of action: personally. conference it had to comply fully with the letter and Brewing 9. G. Company Heileman hired RME litigation ated diversity against Heile- Associates, Inc., firm, consulting a build Jersey. man and RME in New RME counter- waste plant water treatment at Heileman's claimed. case was transferred to the court LaCrosse, brewery in Subsequently, Wisconsin. joined RME then third-party CSM as a below- defendant. RME entered into a Joseph contract with Oat day, On the same filed Heileman an Corporation whereby Corporation agreed Oat against action Wisconsin state court Oat Cor- design, engineer, construct and system. test the poration and RME. against RME cross-claimed Corporation Oat was the exclusive licensee in Corporation Oat against and counter-claimed system’s United States developer, Heileman. N.V. Maatschappij (CSM), Céntrale Suicker early phase In the preparation, trial Heile- corporation. Dutch Corporation man agreed and Oat to withdraw dispute A contract Corpo- arose between Oat addition, all claims between them. Oat Cor- ration, Heileman, and involving poration RME the mal- complaint against dismissed its RME. functioning of the sys- events, waste water treatment After these the lawsuit consisted of December, 1982, tem. In Corporation Oat initi- against RME's Corporation claims Oat and CSM. that Corporation contends its Oat about argue the order intent of attorney Fitzpatrick, as of Mr. presence later.10 reasonableness princi on behalf speak authorized did not the court conclude We thus re Corporation, satisfied pals of Oat to order authority and discretion its abuse representa “corporate its quirement Corporation of the Oat representative 19 settlement December attend the tive” confer- argues Corporation Oat conference. December ence on 19, 1984 the November nothing in either C. Sanctions 14, 1984 order December order or conclude person to lead a reasonable would whether must determine Finally, we from the principal sanctioning representative by that a its discretion court abused comply required failing Corporation was Joseph Oat Corporation Oat pretrial settle- at the effect personally the order the conference attend —in argues Corporation Oat imposed ment conference. cannot arguing that sanctions appear- directing the that the instructions partic require a failed to the order because were un- representatives corporate ance attend the conference. person to ular it Consequently, ambiguous. clear was Corporation that Oat We believe improp- were sanctions concludes that expected. the court of what well aware er. may have been order While the November discretion, we an abuse Absent ambiguity was ambiguous, any somewhat imposi court’s a district disturb may not remarks magistrate’s eliminated of a failure of sanctions tion writ- on December from the bench The issue on pretrial order. comply with a 18,11 the di- order of December ten have im would whether we review not mag- by counsel from obtained rection Corporation, upon costs Oat posed these clerk. istrate’s abused district court but whether of Oat presence in the December On Hockey doing so. National discretion all attorney of record Corporation’s Club, Inc., Hockey Metropolitan League courtroom, magistrate an- in the 2778, 2780, those 96 S.Ct. 427 U.S. had omitted). that the nouncеd (1976) (citations L.Ed.2d counsel, ion, Serv., represented, in addition was v. United States Postal Malone 10. In — having denied, representative full Cir.1987), U.S. cert. F.2d 128 (1988), -, settle case.... 102 L.Ed.2d 109 S.Ct. possibility general appearing a substantial issue It addressed same Ninth Circuit imposi and issues appealed of the claims Malone exists that number confront here. susceptible of settle- ar Malone be of dismissal. in these cases tion of the sanction might ment, thus was invalid and related matters gued pretrial order and other that the of unnec- justified. (including Id. at 133. the avoidance noncompliance was considered her evidence, of redun- the order and essary proof, claimed that Specifically, Malone cumulative adopting possibility lacked litigation; of erroneous since the the dismissal was dant supply a list authority require pleadings, to restructur- to Malone the the the amendments potential special wit adoption for all of questions parties; and answers the ing of of the Appeals dis complex managing Circuit Court Ninth this procedures nesses. argument just and held the agreed litigation) with Malone’s as to protracted so secure to be errone litigation court order as a who believes speedy counsel this determination obey duty it. Ma parties, is not relieved expense ous the least the pretrial order with to abide the refusal lone's ORDERED: IT IS HEREBY Id.; Mey also Maness v. justified. see was not 449, 458, ers, counsel, 95 S.Ct. party 419 U.S. each 2. In addition (1975). L.Ed.2d 574 plaintiff Oat carriers insurance the RME, represented at the shall defendant 18, 1984, order was by representative the oral hav- person 11. On December conference in writing. make or to settle the case ing reduced full with counsel grant decisions and stated: It reasonably may be respect matters to all im- was the progress of conference conference; .... anticipated come Joseph plaintiff by paired fact that neither before 18, 1984) supplied). (emphasis (Order of Dec. Un- Corporation, National or its carrier Oat impaired been Corporation12 because Oat requiring presence of the insurance had not complied Paragraph 5(c) carriers with authority to discuss settle- the November requiring order it to send to ment. corporate representative.13 conference a The distinction clearly drawn between The magistrate clearly stated that the or- attorney an representing corporation purpose der’s presence was insure the corporate representative. As we define personally at the conference. opinion this with the mean- —consistent on, From that Corporation moment Oat had ing given by magistrate corporate —a notice that it ordered corpo- was to send a representative person is a holding posi- “a representative rate to the resumed confer- tion corporate with the entity.” Although Moreover, ence. prior to the December 19 Mr. Fitzpatrick was representing corpo- conference, Corporation’s Oat counsel con- principals rate and Mr. Possi the corpora- magistrate’s tacted the office to determine tion, corporate no representative attended if magistrate really intended for corpo- required as by magistrate’s order. We representatives rate Madison, to be in Wis- therefore conclude that the court properly consin, for the settlement conference. Corporation sanctioned Oat pursuant Counsel was assured that such was the 16(f) failing corporate send a case. representative to the settlement confer- When the conference resumed on Decem- еnce. ber present Mr. Possi was acting in his capacity Corporation’s as Oat attorney of III. CONCLUSION record. Fitzpatrick, Mr. who was not an attorney We hold that case, limit, record in the 16 does not asserted that he was rather is by, directed to attend enhanced confer- authori- speak ty ence and on behalf of federal Oat Corpora- repre- order tion’s principals.14 by Mr. sented Fitzpatrick counsel also to attend confer- stated that interpreted he ences November of discussing settle- order not requiring presence ment. of a Oat Corporation violated the district principal Corporation of Oat at the confer- court’s order requiring it to corpo- have a ence scheduled for December but as representative rate attend the set- Except 12. Corporation, for the Oat par- all case, tlement speaking specifically complied, sending ties their corpo- counsel and about the order which is dated December 18th representatives rate (a to the clearly but was enough I think entered on the principal of standing by CSMwas telephone counsel, 14th. That in addition to each Netherlands). Corporation The Oat was ... shall be at the conference in represented by record, attorney his John Pos- person representative having full authori- addition, si. In Corporation's Oat liability ty to settle the case or make decisions relevant carrier, insurance National Union Fire Insur- all reasonably to matters anticipated to come Company, ance adjuster. was before the conference.... fact, aAs matter of Mr. yesterday called Possi pertinent part, the order stated: my find secretary to really out from if that is Iwhat conference, 5. A which meant he shall in- ... was informed that it is Brewing meant; clude the Company, Heileman really what I shall and I would like to have held be p.m. herein on your explanation December 1984 at 2:00 why as to no one from Jo- seph Oat is here from authority. [sic] that counsel, party addition to each shall be MR. FITZPATRICK: I represent- am here a represented at the representa- conference a Joseph ative of Oat which your I understood having tive full to settle the case.... order to be. I have thing discussed this thor- (Order 19, 1984). of Nov. oughly principals with the Joseph Oat. They directed me to come to the conference. 14. On December following the dialogue took They them, directed speak me that I could for place magistrate between the and Mr. Fitz- speak with to for them. di- Their patrick: rection was I should make no offer to settle THE COURT: I made it clear on case. position. December the is That their That is the 14th, that purposes for position this they conference ... they choose to desig- take and party each that in represented addition to be representative me nated as the to communi- by counsel present party would have the itself cate that to Court. the purposes for authorizing or discussing (Transcript set- 1984). of Dec. dangers in broad too and there are obvious December on tlement courts’ in- of the interpretation circumstances, the district these Under regulate procedure. power to herent their by impos- its discretion did not abuse encourages judicial danger is that it One failure Corporation’s for Oat ing sanctions (“power corrupts”); sev- high-handedness The order. the comply with to judges the in years ago one of district eral hereby is district of the judgment Acting Secretary of La- ordered this circuit AFFIRMED. him for settle- appear to before bor Brock day Brock very the on ment discussions dissenting. POSNER, Judge, Circuit the Senate to before was scheduled оf Civil 16(a) Federal Rules hearing. The broader for his confirmation “di- court to a district authorizes Procedure episode is illustrated the Brock concern the for attorneys the rect may judges in zeal to settle cases that their it appear before unrepresented parties people’s of other time. ignore value I The word conference.” [pretrial] for hire is to econo- people lawyers One reason carry thought to be italicized could have of time on their own investment mize represent- that no negative implication note pertinent It is disputes. resolving ‍​‌‌‌‌‌​​‌‌​‌​‌​‌​​​​‌‌​​‌​‌‌​‌​​​​‌​‌​​‌‌‌‌‌‌​​‌‍may directed party be ed —that is a defendant in this that Oat connection I hesitate conclusion—but panel’s was case; its executives’ this it didn’t want can be decided a case that so conclude in litigation. occupied time ground. on a narrower hand, Not bricht Eisen other die On the pretrial confer- main The Attorneys often [“necessity breaks iron”]. trial. For get ready for ence is to clients, and agents of imperfect their attorneys need be only the purpose, is so our courts workload of district acting as his own party is present, unless a deprive should hesitate heavy that we only possible reason attorney. The tool for effect- potentially useful them of a present party to wanting represented settlement, if is some diffi- even there ing magistrate to judge or enable the is to the tool. legal basis for culty finding rath- principals with the explore settlement defy a district attorneys Although few will dis- agents. Some just their er than with client, those produce the request to court’s magistrates distrust judges and trict very where ones may be few cases attorneys con- ability of willingness or most conducive would be presence client’s information adequate their vey to clients 16(a) right If I am to settlement. desirability and terms bearing on the un- court to summon a district empowers pressing in lieu of forward settling a case pretrial conference parties to a in some is warranted The distrust to trial. neces- presence may be their only because not, sure; it cases, I but warranted am trial, need not ready sary get the concern that what lies behind forbid draftsmen meant infer stripped the district opinion had panel represented parties summoning of settlement tool—and of a courts valuable The exploring settlement. purposes feder- heavy, growing, time of this at a unaware may have been draftsmen asserting The concern caseloads. al were district panel exaggerated, presence however. well command signifi- should practical explore had little settlement. opinion attorney prohibitions. will cance; infer inadvertent rare who it hesitate by defy- displeasure judge’s a district invite “legal” considerations narrowly for a produce the client request ing a question whether bearing conference. by power asserted courts have sufficiently case are in this power magistrate district court’s question compel to authorize—indeed party equivocal to settle- a a to summon —us consequences for practical to consider difficult one. On is a conference ment the an- what deciding before any in hand, 16 or nothing in Rule one have Unfortunately we be. power, swer should such confers rule or statute other 658

insufficient information about those conse- by sented pretrial counsel attend a con- quences give able to a confident an- ference. swer, fortunately we need not answer COFFEY, Judge, Circuit this case —so clear is it that question in with whom EASTERBROOK, RIPPLE and magistrate discretion, abused his which MANION, Judges, Circuit join, is to say, acted unreasonably, demanding dissenting. Corporation Oat an send executive having “full authority” to the Because Rule 16 of the Federal Rules of demand, conference. This which is Procedure, Civil amended Supreme different from a demand that a who Congress Court and 1983, as recently as has not closed the door to settlement send specifically designates may who be ordered possible terms, executive to discuss pretrial conference, at a I dis- would be defensible if had a agree with majority’s determination duty good bargain over faith settle- “that the action taken the district court trial,

ment resorting before and neither in this case constituted the proper use of any rule, Rule 16 statute, nor other inherent authority to aid in accomplishing imposes doctrine such duty on federal and intent of Major- Rule 16.” litigants. See Strandell v. Jackson Coun- ity Opinion at 652. Rule 16 of the Federal ty, Cir.1987); 838 F.2d 887 Kothe Rules of Civil Procedure states relevant Smith, v. (2d 771 Cir.1985); F.2d part: Co., Del Rio v. Northern Blower 574 F.2d “(a) Conferences; Pretrial Objectives. (1st Cir.1978); Maine, Perez v. action, any the court inmay its discre- (1st Cir.1985); F.2d National Ass’n tion direct attorneys Employees, Government Inc. Nation- any unrepresented al Federation Federal Employees, before conference or conferences .it (5th Cir.1988); Advisory Com- before purposes (1) trial for such ex- mittee Notes to 1983 Amendments Fed. pediting disposition action; (2) R.Civ.P. 16. There is no federal establishing early continuing control power to coerce settlement. Oat had made so that the case will protracted not be clear it prepared that was not to settle the (3) because of management; lack of dis- any case on terms required pay it to couraging (4) wasteful activity; money. prerogative, That was its improving which the quality trial once magistrate’s exercised made the through con- thorough more preparation; and tinued (5) sending insistence Oat’s an exec- facilitating the settlement of utive to arbitrary, unreasonable, Madison case.” willful, and petulant. indeed This is apart Unlike majority, I am convinced that from the fact that since no one officer of Rule 16 does not authorize a judge trial Oat have had authority to settle the require party litigant to at- case, compliance with the might demand tend a together with his required ship Oat to its entire board or her attorney because the rule mandates of directors to Madison. Ultimately Oat in clear and unambiguous terms that did money settlement, make a but there is only an unrepresented party litigant and no indication that it would have settled attorneys appear. ordered to sooner if only it had complied with the Although recognize courts, I that all in- magistrate’s demand for the dispatch of an cluding those jurisdiction, pos- possessing executive “full settlement au- sess certain inherent authority, such as the

thority.” contempt power and the to deter- mine whether day jurisdiction,

Sufficient the court has unto the evil there- of: this authority recently should reverse the limited. We district court reaching without warned that: question whether “ there circumstances in which a authority’ ‘Inherent is not a substitute reason_ may compel party repre- good ‘Inherent authori-

659 elected court has ‘because a overlooked the law in criminal cousin like its ty’ super- question under the analyze the name just another is power’, ‘supervisory Payner, v. States visory power.’ United common to make courts power of for the 2447, 2439, 736, [727, 100 S.Ct. 447 U.S. ad- do not rules statutes law when (1980)].” 468 65 L.Ed.2d topic. Cf. United particular dress 325, F.2d 328-29 Widgery, 778 v. States in an Supreme Court observed As the Cir.1985).” (7th use of the broad rejecting decision earlier Su (inherent authority) & Lake power v. Escanaba supervisory Line R. Co. the Soo (7th 546, Co., Cir. determina- F.2d 551 court’s R. justify 840 an individual perior clear placed required has criminal public policy 1988). Supreme Court tion that protec- “inherent au certain reliance to be judicial defendants extended limits on in criminal in Constitu- or, the allowed the beyond it is labeled those thority” tions context, power”: tion, “supervisory such law the use of to a substitution “reasoning amounts sensible efficient ... “Even a controlling if con- is invalid it power judgment ... supervisory of individual statutory pro- to ac- we this Court. Were constitutional decisions of flicts with power, confer supervisory ‘would the contrary cept result this use of A visions. discretionary power to discre- judiciary on the would confer judiciary on the con- disregard limitations the tionary power the considered disregard ” enforcing.’ law it charged with limitations law it sidered enforcing. hold with charged 148, 140, Arn, 474 U.S. 106 v. Thomas extend so does not supervisory power (1985) (quot 471, 466, L.Ed.2d 435 88 S.Ct. far.” 727, v. Payner, 447 U.S. States ing United 727, 737, 2447, 468 Payner, 2439, 447 v. 65 L.Ed.2d U.S. States 737, United S.Ct. 100 (1980) recognizes, 2447, 2439, Thus, majority 65 L.Ed.2d (1980)). as the 100 S.Ct. omitted). procedural court, devising means Like the (footnote in “the Scotia, Nova it, may not exercise Bank before rule cases involved control Procedure, including inconsistent authority in a manner Rules of Civil Federal inherent pro- Majority Opinion 16, of a careful product statute.” “are rule or Rule with designed to reflection study cess of 652. need cognizance both ‘due take recently under- very Court Supreme protection and the of cases expedition not that district the fact scored ” v. Jackson Strandell rights.’ individual inherent alleged attempt to utilize Cir.1987) County, contravenes a manner Cong., 2d No. 85th S.Rep. (quoting has varying interests between balance Cong. & Code U.S. Sess., reprinted proce- in a federal struck been previously Furthermore, 3026). Admin.News of Civil rule, as Federal such dural where practice of trial areas “in those Nova Scotia In Bank Procedure acting Congress, — Court and Supreme States, -, 108 S.Ct. U.S. United appropriate addressed togethеr, have (1988), the L.Ed.2d effi- judicial needs between balance not invoke judge held Court liti- rights of individual ciency and (labeled “supervisory” by innovation the individual gant, Court) an indict- to dismiss Id. that balance.” must conform officer in a error” upon “harmless ment based at 886-87. proceeding: jury grand dis- only provided 1983, Rule 16 Prior to a federal court hold that “We now the discretion judges trict court to circum- supervisory invoke par- attorneys for attendance require the pre- inquiry error harmless vent out pointed As proceedings. such Pro- ties at of Criminal Federal Rule scribed Supreme Court opinion, in this by the earlier 52(a). struck The balance cedure look good hard Congress took costs and societal Rule between judicial effi- improving hopes of 16 in casually be may not accused rights of the ciency only power increased the each party participating in any conference judges district court to the extent of autho- before trial shall authority to enter rizing compel them to the attendance of stipulations into and to make admissions “unrepresented parties” at pretrial confer- regarding all matters that participants ences. may reasonably anticipate may be dis- However, very it is clear that the amend- cussed.” Similarly, 16(d), concerning ment explicitly stopped of providing short pretrial final conferences, provides that trial judges with the broad and sweeping shall “[t]he attended at compel presence “repre- least one of attorneys who will conduct parties” pretrial sented conferences that the trial parties for each by any the majority now by judi- seeks to achieve unrepresented parties.” cial Supreme fiat. Court Con- “[T]he The majority’s creation of this new inher- gress, together, acting ... addressed the ent compel attendance of liti- аppropriate between the balance needs for gants (represented parties) also contra- judicial efficiency rights and the of the venes the terms of at least one other rule litigant,” individual they when chose to regulating compulsory judi- amend attendance at Rule 16 in a limited manner. The cial proceedings. majority upsets this Federal Rule careful of Civil balance and contrary acts Supreme to the Procedure 45 does not subpoenas Court’s man- authorize date in the Nova Bank case when to be pretrial Scotia issued for conferences and upon it relies alleged an “inherent authori- permits the invocation of the subpoena ty” permit judges district court to exer- power only hearings for and trials. On the cise a which the drafters of Rule 16 federal level neither Supreme Court nor explicitly denied them. See United States Congress given has the courts the authori- R. Fritz, Retirement Board v. 449 U.S. ty to litigants’ direct attendance much less 166, 179, 453, 461, 101 S.Ct. 66 L.Ed.2d 368 subpoena pretrial them to (1980) (“The language of the statute is conferences whose sole is to dis- clear, and have historically assumed cuss the upcoming trial, to frame and de- Congress enacted.”)2 intended what it issues, fine the and through custom to ex- The obvious intent of Supreme Court plore with the consent litigants’ at- and Congress attorneys and un- torneys, very situations, limited the dis- represented parties required partic- cussion of possibilities. Fur- ipate conferences clearly sup- thermore, the extension of the “inherent ported by specific references to “attor- authority” doctrine to substitute for the neys” “unrepresented parties” subpoena power conferences throughout 16(a), Rule 16. Rule as noted raises a due process question in that previously, allows for the court to “direct court’s rule authority to subpoena issue the attorneys and any un- is subject to motion quash, which is represented parties before it.” not available challenge the alleged 16(b), inher- concerning scheduling, requires authority. ent Assuming a judge to attorneys “consult[] would issue a any contempt unrepresented par- citation for failure 16(c), ties.” Rule regarding appear, I subjects know to be of no avenue discussed at a conference, unwilling litigant states to challenge alleged least one of attorneys “[a]t authority” “inherent other an attempt than Strandell, F.2d at (Scalia, J., 886-87. S.Ct. at concurring) (quoting 505, Hasting, United States v. 461 U.S. 2. Justice pointed similarly Scalia toward a cir- 1974, (1983)). S.Ct. 76 L.Ed.2d 96 Like- cumscribed "supervisory power” construction of wise, there is possession no basis for a court’s recently when he noted: “Even less do I see a powers broad to force basis for cipline court's ‘supervisory powers to dis- participate in settlement discussions where the prosecutors jurisdiction,’ except party litigants expressed have not a desire to insofar performance as concerns their before participate. qualifications court and their to be members Scotia, the court’s bar.” Bank Nova to offer defense unjustified a to an con- ence is found a case in which a trial tempt citation. judge in this sought circuit to compel the attendance of a party, the Sec- newly created authority” “inherent retary Labor, of to discuss a settlement require to represented litigants after Department of Labor’s attorney pretrial at a upon conference is based a refused agree to a settlement legal proposal foundation quicksand. of Exercise of suggested by the district court.3 The trial posed has and will continue to judge in that case stated: pose a substantial invitation judicial abuse. purpose “I of think I want confer- to set hearing as soon ence is to parameters get set the as I litigation, of back in which I want the Secre- clarify organize the issues and presenta- tary of Labor here, to be not even Mr. tion with the aid of respective Lilly. attor- I’m tired horsing of around with neys, now, unrepresented people party liti- who sit in the Office, Solicitor’s gants in the hope of improving judicial spending the taxpayer’s money, having efficiency at trial. of, these me, kinds difficult to under- stand, to put it gently, positions, say, As Richey, Charles District Judge ‘We want to take position United States District ‍​‌‌‌‌‌​​‌‌​‌​‌​‌​​​​‌‌​​‌​‌‌​‌​​​​‌​‌​​‌‌‌‌‌‌​​‌‍Court for the Dis- breach, however infinitesimal, however Columbia, trict noted, of has pro- “Rule 16 irrelevant, immaterial, however however important vides an mechanism for narrow- inadvertent, innocent, however going is ing the case, issues in a saving time and significance be of in a determination expense easing as to whether or compensation not can burden on the by facilitating paid under an agreement indemnification handling congested of dockets.” C. Rich- to ERISA trustees.’ I want ey, the Secre- Management Modem Technique for tary to tell me that Depart- that’s the Trial Courts to Improve the Quality of ment of position. Labor’s I Justice: Requiring want the Direct Testimony to Secretary to tell me that he Submitted wants a hole in Written Form Prior in this Trial, decree so (1983). Geo.L.J. other court As the “ would admits, have to majority decide whether or ‘it is not what 16(b)(7) Trustees impose Senator Saxbe negoti- ’ ” [Independent Special ations on unwilling litigants. and the Majority Counsel] Opinion Fund did—the staff at 653 (quoting recommendation and Fed.R.Civ.P. 16 there emphasized Advisory or in is “nothing Advisory Committee’s this fact Committee when we Note amended rule (c) (1983)). noted that ^[16] thing ground all—should be different do with the judge it, has determined who no has never had case, knowledge has no back- new and of the any- nеgotia- in settlement of provisions participation judicial the under the How- court.” of the tions. “officers and as attorney the if that ever, convinced I am inher- the judges lack that My conclusion personal- litigant the to have not wish does a presence of the authority require ent pretrial the at the before ly appear pretrial con- at a litigant party represented lest, so, do conference, bound he is not of the judges deprive trial does not ference litigant make problems, the among other their caseloads. effectively handle ability to be type which would of some admission require the attend- free Judges remain had not and which to the case damaging par- unrepresented attorneys and ance of discovery pro- elicited been previously However, if conferences. pretrial at ties the of all aware we are ceedings. I believe coercively are taken measures further fairness, impar- of appearance the that fact partic- and active presence the require and imperative, is all justice tiality and party at a of a ipation a how to understand logic I fail upon based belief that conference, my it is considered appearance sitting at command a litigant the worthy of aura longer no will be judges into an himself injects judge who before adversarial considera- guiding for “the impartiality of parties’ the of either role for justice of the administration tion is negotiations during settlement positions disinterest- appear to be reasonably should (the litigant) will she he or feel that can Utili- Public in fact.” so as well ed if he or judge trial before a fair Pollack, 343 U.S. v. ties Commission reason- judge’s with the agree fails she 822-23, L.Ed. 1068 466-67, 72 S.Ct. recommended regarding a ing or direction chambers).4 J., in (Frankfurter, (1952) grandiose may express settlement. Supreme of “the example 16 is an theory postulation and all sorts terms together acting Congress, [to influence, Court intim- not to being careful about between balance appropriate settlement, under address] coerce and/or idate efficiency and judicial needs experi- judges our trial pressure litigant.” Stran- the individual rights ever-burgeoning their today from ence we are If at 886-87. dell, 838 F.2d foolhardy caseloads, we would of fairness appearance unnecessary maintain undesirable and anticipate an preser- important is so impartiality litigant in upon the impact psychological our respect of confidence vation difficul- nature. of this circumstances system, “innovation judicial cherished partic- judicial with active ties associated conform must judicial officer individual ex- negotiations ipation in majority, 887. The Id. at to that balance.” trial is sched- when the pressly exacerbated officers judicial permit attempt to in their jury of than a court rather uled before judg- personal their right to exercise partiality appearance peers. one’s at require the attendance ment all be avoided must impropriety those other than entities conferences to show is to continue if our nation lengths 16, upsets in Rule specifically enumerated judgments. Since judicial its respect for Supreme Court balance the delicate nor in the law trained litigants are neither impropriety with appearance of the creation who advocate be noted those should It

4. into the settle- actively injecting himself judge power” "supervisory or inher- expansive use presence of in the procedure rely upon ment context criminal in the ent furthers, the than compromises, rather justifica- process as a integrity cоurt,” the integrity of the "protect[ion of] authori- allowing to exercise tion for super- of the exercise "major purpose behind the Payner, 447 U.S. ty. States See United 100 S.Ct. visory powers." U.S. at 2451-52, 745-46, 65 L.Ed.2d S.Ct. case, J., dissenting). (Marshall, In our (1980) Congress struck between the ju- needs for why should this against count him? Be- dicial efficiency rights and the of the indi- Fitzpatrick cause is part-time rather than litigant. vidual But on hand, the other if agent full-time corporation? Why grant wish federal trial judges the can’t the corporation make own its decision power, let it be accomplished through the about how much agent’s time accepted channels of the Supreme Court hire? Is Oat being held in contempt be- Congress of the United States.5 Be- cause it is too small to have a legal cadre of cause judges district court lack employees general counsel —because require the attendance of liti- practices awith law firm being rather than gants at a conference as of this “in house”? date, I dissent.6 At events, all the use of outside attor- neys as negotiators is common. Many a EASTERBROOK, Judge, Circuit firm sends its labor lawyer the bargain- to whom POSNER, COFFEY and ing table when a collective bargaining MANION, Judges, join, Circuit agreement is about expire, to there to dick- dissenting. er with (or the union with labor’s lawyer). Our case has three logically separate is- Each side has a statutory right to choose First, sues. whether a district may court its representatives. U.S.C. demand the attendance of other someone 158(b)(1)(B). Many § a firm sends its cor- than the party’s counsel of Second, record. porate counsel to the bargaining table may whether court insist that this addi- when merger is under discussion. See tional person employee be an rather than Gilson, Ronald J. Value Creation Busi- agent an selected for the Third, occasion. ness Lawyers: Legal Skills and Asset whether the rep- insist Pricing, 94 Yale (1984). L.J. 239 Oat did resentativе have “full settlement authori- thing same to explore settlement of ty” meaning the authority agree to pay to — litigation. A lawyer is no less suited to cash in (maybe authority with- this task than to negotiating the terms out cap, although that clear). was not collective bargaining merger or agree- Even if one resolves the first issue as the prefer ments. Firms to send negoti- skilled does, majority it does not follow that dis- to ators negotiating sessions (lawyers are trict courts second or pow- third especially useful when the value of ers, a claim or that their exercise here pru- was depends on the legal resolution of ques- dent. tions) while reserving the time of execu- The proposition magistrate that a tives for business. Oat understandably require a firm to send an employee rather wanted its management team to conduct its representative than a puzzling. Corpo- construction business. “employees” rate simply agents of the firm. Corporations As for agents choose their subject, third whether the powers decide what give representative to them. must have “settlement au- agents Which have which powers thority”: magistrate’s is a mat- only reason for ter of internal corporate ordering affairs. Joseph corporate representative to Corp. Oat sent to the only conference come was to facilitate settlement then and its counsel of record but also John Fitz- there. IAs understand Magistrate Groh’s patrick, who had authority speak opinion, Judge Crabb’s, the directive Oat. Fitzpatrick Now Mr. is an attorney, was to person send with “full settlement which magistrate’s raised the hackles, authority”. Fitzpatrick was deemed inade- 5. "If surgery such performed, radical is to be conference, ed to attend the if it expect can that the rule-making national process power conclude, did have such I would outlined Enabling in the Rules Act will under- Posner, reasons Judge enumerated that the quite explicit take Strandell, it fashion.” magistrate improperly acted exercising (footnote omitted). F.2d at 888 require Corporation that Oat send to the settlement possess- conference an executive Although I am convinced that the district ing "full authority." authority lacked the require represent- management report back tiators instruc- was under he quate because union, of which reserves Mr. each E.g.: “While money. pay not to

tions agent. position of speak approve reject Fitzpatrick claimed espe 16—and Fed.R.Civ.P. no know from had Oat, that he he stated com Thus, repre- Advisory no Committee’s cially from [monetary] offer. amake having “refer 16(c) author- the Rule’s or National to Rule of Oat ment sentative at the present was insist ‘authority’ not intended the case ity to settle ence (magis- directed” litigation”— the order ability to settle the upon added). On learn- emphasis compelled opinion, trate’s cannot Oat’s not command did Fitzpatrick ing that A defendant good faith”. “in negotiate him from ejected magistrate treasury, the may insist wrong no it did convinced to what listened never the conference Jersey New Hess v. See vindication. total behalf, never Oat’s say on had he Inc., Operations, Transit Rail re- might Fitzpatrick whether learned Smith, Cir.1988), Kothe v. (2d (We know proposals. ceptive to others’ Cir.1985), judge that a (2d holding F.2d 667 case ultimately settle did Oat settle party to make compel a may not “prevailed” part it took money, after accept one. offer, alone let ment and participation summary jury at a trial — down turns party a who requires which willing- demonstrating Oat’s each payment if only costs to bear proposal a settlement settlement.) magis- to consider ness trial, implies the does wоrse if the Chair- implies that approach trate’s obliged are not if thing. Yet same had with Oat arrived of CEO man faith, ground what good on in negotiate settle Board to from instructions authority obliged to come with they can negotiate cash, and to paying without case authority agents spot on the to settle —an when the considera- the Board’s bring back requires law carry even need not still would Oat proposals, any financial tion today affirm The order negotiation? contempt. been in have no have committed persons who compels judge demanded magistrate Both of every requirement pass wrong, who representa- “corporate aof presence not oppor only the who want 11 and Rules employee a full-time of in the sense tive” merits, on a decision tunity to receive with “full representative a but of open checkbooks court with to come pow- corporations reserve Most settle”. contempt. being held of pain discuss) power to (as opposed agree er to valuable, courts Settling litigation is their boards managers toor to senior litiga- it. Is settlement promote should on the depending difference directors—the of labor than valuable tion more $4 Heileman wanted involved. amounts may do what that courts disputes, so province million, a within sum framework statutory may not? The single even a executive NLRB than rather board in labor required negotiations Fitz- than Oat. larger —bona fide firms much op- litigation suggests power to discuss not came patrick law — case on desirability settle the of settlement recommend; he could posite. Does pow- cash; allocating he lacked than state law other rules of imply terms magistrate’s order yield? sign a check. must corporation er within (a) required either have must that settle- therefore in other cases We have held responsibility changing the allocation within negotiated must ments (b) sending corporation, rules; within the desire existing framework Board. quorum Oat’s not does done with over and get a case applicable generally modifying justify un power exercised Groh Magistrate Carey, F.2d Dunn v. E.g., norms. law, is a where there in labor even known decrees, and Cir.1986) (consent (7th 29 U.S.C. good faith. duty bargain if settlement, may be more attractive hence management common 158(d). Labor § law, state follow agree may not au through persons with negotiate ly does autho- of settlement value nego but the agree. The but not thority to discuss that); rize Kasper v. Board Election ability was the sign Oat Corp.’s check in Commissioners, (7th F.2d 340-42 magistrate’s presence. What the mag- Cir.1987)(same); In Hospital re Memorial istrate found unacceptable was that Fitz- Inc., County, Iowa (7th 862 F.2d 1299 patrick might say something like “I’ll relay Cir.1988) (parties’ desire to settle does not suggestion to the Board Directors”, justify vacating judicial opinion might which say no. Oat’s CEO could have be valuable to other persons). also, See done no more. We close our eyes to reality e.g., Tiedel v. Northwestern Michigan Col- in pretending that required Oat was only to lege, Cir.1988) (a be present while others “voluntarily” dis- court lacks promote settle- cussed settlement. ment requiring a party who rejects a mediator’s proposal pay prevailing RIPPLE, Judge, Circuit with whom fees). side’s attorneys’ COFFEY, Circuit Judge, joins, The majority does not discuss prob- these dissenting. lems. Its approach implies, however, that join I the dissenting opinions of Judge trial representatives insist that Coffey and Judge Manion. I write sepa- greater authority than negoti- labor rately only emphasize that the most en- bring ators to the table. And to create this during dangerous impact of the ma- —and — greater authority, Oat Corp. might have to jority’s opinion will not be its effect on the rearrange its internal perhaps structure — conduct of conference, but on delegating agent to an state law the relationship between the Judiciary and reserves to the board of directors. Prob- Congress in establishing practice and lems concerning the reallocation of authori- procedure for the federal courts. Recog- ty ubiquitous. example, For only the nizing that the line between substance and Assistant Attorney General for the Civil procedure is at best an indistinct and vague Division has approve settle- one, the two government branches of have cases, ments of civil and his authority established a long tradition of shared re- only reaches $750,000; above the sponsibility for aspect this governance. of Deputy Attorney General approve. must That tradition is embodied principally 0.160(a)(2), C.F.R. —al- §§ 0.161. An attor- though not exclusively the Rules En- ney for government, the —in Fitzpatrick, like abling Act. 28 U.S.C. 2072. That § Act lacks the authority to commit his client but designed was to foster a system uniform of may negotiate and recommend. Does it procedure throughout the system, that, follow every in case, federal civil supplemented altered, but not by magistrate local may require presence rules to take care of problems. local Assistant or Ex- Deputy Attorney General or perimentation at the local level in insist that they areas redelegate their authority? policy where choices If such have not been demand made at improper would be the national permitted. level is Department Moreover, Justice, is it more prop- there question er is no when made of that the Joseph Oat Corporation? officer retains a degree substantial of inherent These go will issues away. mag- The authority to deal with individual situations istrate’s order was to a representative send long —as is exercised in with the authority to bind pay Oat to conformity with the policies embodied in money. What point is the insisting on However, national rules. the Rules such authority if not require making Enabling Act hardly contemplates the of offers and acceptance of “reason- broad, amorphous, definition of the “inher- able” is, counteroffers —that require power ent judge,” a district at artic- good faith negotiations agreements on ulated the majority. the spot? Fitzpatrick had the authority to report back to any Oat on suggestions; significant that, he It is just ago, months in had the authority participate in negotia- Improvements Judicial and Access to tions. thing he lacked—the only Act, Justice 100-702, Pub.L. No. 102 Stat. reason Oat held contempt was in (1988), court— 4642 Congress made its clear con- in principle this recently applied frustrating the courts’ district with

cern County, v. Jackson Strandell consen- evaluation process careful recog- Strandell, we Cir.1988). In Enabling Act Rules up by set sus exercise must courts rules. nized district local proliferation through the harmony with the “in power Today’s de- inherent their 401-407, 4648-52. 102 Stat. §§ After Procedure.” of Civil Federal Rules to reconcile hard is indeed cision its accom- examining uni- Rule 16 carefully concern Congressional underlying note, we held advisory courts. committee the federal panying in practice formity of may not indi- court encourages district that a majority Indeed, Strandell own participate litigant to its unwilling march court district order vidual no doubt Rule long, we shall trial because summary jury Before drummer. justi- used to opinion courts’ district rhetoric see the addresses which “innovations” questionable proceedings, more fy far on settlement insist method- strong-arm to conduct courts than district authorize did not issue in magistrate id. at See ology summary jury trials. mandatory holding is that no opinion. in this Implicit 186-88. conduct mandato- exists joined trials; 16 shut Judge, Rule MANION, summary jury ry Circuit COFFEY, proceedings. EASTERBROOK such door dissenting. RIPPLE, Judges, Circuit district here—whether issue 16 states Procedure of Civil Rule Federal appear at party to may order attor- “the may order courts that district slightly differ- conference—is a settlement unrepresented neys But the in Strandell. issue ent from parties” Since the same. analysis is proper clear seemingly Despite this conferences. of settlement the use addresses specifically that district majority holds language, courts, must in the federal conferences compel power” to “inherent limits a whether determine by counsel or- who the power over court’s Rule Because settlement. discuss court to conferences. at those appear der any such use room for no 16 leaves statute, proper or any rule As dissent. respectfully I power, inherent 16 is the Rule interpreting starting point feder for a license is not power Inherent content not be We should language. rule’s necessary seems whatever to do courts al “lib- about statements general rely on is power along. Inherent a case move “broadly construction,” 16’s Rule and eral power for the name “another simply at majority opinion See “spirit.” remedial” statutes law when common to make courts 1 commands Rule true that It is 652-53. area.” particular address do not rules secure “to rules the federal to construe us Su Lake& v. Escanaba R. Co. Line Soo determi- inexpensive speedy, just, Cir. Co., R. perior action;” that command every nation is to power’s 1988). inherent Since words ignore us to for excuse is an rule, it necessar or statute left gaps fill goal. pursue used to the drafters rule or a statute where ily follows that enacted, provided Rule originally As area, it particular addresses specifically attor- could “direct that district to invoke inapproрriate pretrial parties” neys for rule the statute bounds to exceed amend- 16 was Rule In conferences. v. United Scotia Nova Bank sets. Cf. things, that the other among provide, — ed to 2369, 2373- U.S. -, 108 S.Ct. States, appropriate is an settlement possibility (a (1988) L.Ed.2d conferences. pretrial at consider subject to inher supervisory invoke may not —i.e. Fed.R.Civ.P. 16(c)(7); see also Fed.R.Civ.P. proceedings criminal over ent— settlement). But (“facilitating” 16(a)(5) 52(a)’s harmless Fed.R.Crim.P. circumvent partid- “the only 16(c) states Rule inquiry). error pants at any conference under this ing and, rule” and skill Judge notes, Posner may consider (emphasis added); “to economize their own investment of 16(c) Rule does not say who “partici- those time in resolving disputes.” Dissenting pants” may 16(a), Rule opinion be. on the other Part of an attorney’s ex- hand, provides that pertise includes evaluating cases, advising “direct the attorneys parties whether or settle, not to and con- ” unrepresented any parties ducting negotiations. I realize that attor- pretrial conference. 16(a) Rule neys may thus de- sometimes convey inadequate in- fines who the “participants” aat formation to their clients regarding settle- attorneys are: and unrepre- ment. But an attorney has a strong self parties. sented interest ‍​‌‌‌‌‌​​‌‌​‌​‌​‌​​​​‌‌​​‌​‌‌​‌​​​​‌​‌​​‌‌‌‌‌‌​​‌‍in realistically conveying to the client relevant information necessary for Judge Coffey notes, As dissenting opin- the client to make an informed settlement ion parts other of Rule 16 echo decision, and in accurately conveying the 16(a)’s Rule reference to attorneys and un- client’s position to the court and represented parties. 16(b) Rule requires opposing litigants. The attorney also has courts to scheduling enter orders after con- an ethical duty convey that information. sulting with “the attorneys ” malpractice threat of suits discipli- and any unrepresented parties.... nary proceedings should be sufficient to 16(d) requires that “one of the attorneys any make attorney think twice try- before who will conduct the trial for each of the ing to mislead his client or the court. At- unrepresented ... parties” torneys play important role in our ad- must attend the final conference. versary system, and we should not deni- The language of Rule 16’s pro- sanctions grate that role presuming that attor- vision, 16(f), reinforces Rule 16’s dis- neys will incompetent perform one of tinction between unrepre- the most important functions for which parties. sented language in Rule their clients hire them. Nor should we 16(f) specifically addressing appearance presume that Rule 16’s drafters meant to does not authorize sanctions if “a party on litigant’s encroach right to conduct his appear;” fails to instead, sanctions are ap- case through counsel. Rule 16’s clear lan- propriate if “no appearance is made on guage shows that the rule’s pre- drafters a party_” (Emphasis added.) behalf of sumed otherwise. This choice of language significant. The majority asserts that Rule 16 “does course, the normal an attorney appears “on not give any direction to the district court behalf of” a client at a upon the issue of a court’s authority to conference. An unrepresented party has order who represented are by nobody to appear on his behalf except him- appear counsel to for proceedings.” self. Majority opinion at given 651. But Rule Congress provided has that litigants may 16’s clear language and consistent distinc- “conduct their own personally cases or tion represented between and unrepre- counsel_” 28 U.S.C. (emphasis § parties (a sented consistent distinction the added). Rule 16’s distinction between rep- majority ignores), thаt spe- assertion is resented and unrepresented parties is con- cious. majority The seems to saying litigant’s sistent with a statutory right to that district courts can order represented representation by an attorney. It is also parties appear to at settlement conferences consistent with the attorney’s traditional because Rule 16 does not explicitly say litigation. role in Litigants attorneys hire that district courts represent- order cannot to advantage take of the attorneys’ parties train- ed to appear.1 ignores But that the majority, citing 1. Co., The Link v. ing Wabash R. describing particular judicial or procedure a 370 U.S. 82 S.Ct. not, not, 81 L.Ed.2d 734 give negative should implication does and rise to a (1962), asserts that "the mere absence of prohibition." lan- Majority opinion guage in the federal specifically rules sweeping authoriz- 652. That statement reads far too to the out are sent draft that copies of add specifically to in 1983 decision drafters' the on Many comments profession. people the to parties” “unrepresented improvement for draft, suggestions and appear under to can order district the committee to back it, come then lan- drafters’ the It ignores also Rule committees, individ- from bar association addressing 16(f) specifically in Rule guage re- scholars, lawin and lawyers and ual party” of a “on behalf appear to failure is reevalu- The draft commentary. view drafters If the conference. aat of these light refined and ated to courts district to allow had intended Advisory Commit- When comments. toor appear, parties represented order work, amend- completed has (as tee failing to for parties sanction by the approved must be still ments ap- someone failing to send opposed of Practice on Rules Standing Committee easily said have could the drafters pear), Confer- Procedure, by the Judicial so. States, by the United ence why the reason no majority offers The retains the Congress Court, and Supreme in Rule they did language used drafters it, exercised has though it never power, district limit the not intend they did 16 if pro- the amendments. disapprove par- represented order authority to courts’ to ensure is calculated cess on Rule appears No reason appear. ties thinking best reflect changes note. advisory committee or in 16’s face profession. entire up chalk would majority Apparently, the Miller, Practice A. Federal Wright & C. to inad- language choice drafters’ (1973). It is Procedure § draftsmanship. But sloppy or vertence careful after to believe incredible mean- convey a are meant words rule’s expressly Rule would amended process, rule. This read ing to those who only attor- to order courts district authorize being for credit give the drafters should if unrepresented neys and actually they what communicate able to allow also intended drafters Furthermore, process intended. ap- represented order any inad- belies rules amending 16’s given so especially This pear. Pro- draftsmanship. As sloppy vertence between distinction consistent noted, Miller Wright and fessors distinc- parties, unrepresented amended, the Civil Rules [wjhen the right statutory with congruence tion’s The Advis- extremely careful. process attorney and by an representation includes Civil Rules on ory Committee litigation. role in attorney’s traditional a na- scholars judges, and lawyers, accompany- note committee advisory expertness their reputation tional 16 rein- 1983 amendment ing the is assisted it procedure, matters leaves Rule 16 conclusion forces the as its acts of rank who scholar to order any inherent room pre- no agreed on it has When Reporter. pretrial set- attend parties to amendments, thousands liminary draft and the particular rule context holding. Link held narrow into Link’s much case, any in that power involved particular retained inherent court district that a by enough, it- prose- was not negative implication self, failure sponte sua a case to dismiss 41(b), rule’s that which Court of Fed.R.Civ.P. the face to convince cute in merely for such power. to move While defendants that authorized meant limit drafters itself, not, that reasoned by in Link The Court com- may implication dismissals. given negative longstanding indeed, ancient —au- particular rule limits pletely — answer what cases for want thority to dismiss of trial power, it does court’s places on a clearer require much prosecution, "it would analysis. As starting point that provide 41(b) provides purpose than Rule expression of text, involves case in the demonstrated to abro- intended it was that to assume for us aof absence” “mere more than the much 630-32, S.Ct. at U.S. at power. 370 gate" that 16. Link does procedure in Rule particular 1388-90. analyz- responsibility of relieve us not implication is negative hold that did not Link used—and did drafters ing language the in inter- inappropriate tool to use always an Rule 16. use—in not only held that Link federal rules. preting the tlement conferences. While majority ceptable, except by listening possible makes much general of the drafters’ intent terms? It appears that the saying court is to allow district courts “to wider make use that a district represent- order a powers their manage actively ed party to appear in court both to talk and dockets,” their the majority offers little in listen about words, settlement—in other way specifics. advisory The commit- actually discuss settlement. I cannot see tee note does not discuss settlement confer- any mеaningful distinction between this ences much detail. state, The note does kind of activity and “negotiation;” after however, “[Although it is not the all, negotiation in large measure simply 16(b)(7) of Rule to impose settle- involves discussion. If a distinction does negotiations ment unwilling litigants it exist, it is so blurry toas be almost invis- is believed providing a neutral forum ible, and certainly difficult, if impossi- for discussing subject might foster it.” ble, to enforce. The is espe- distinction majority brushes aside this admoni- cially elusive in because, this case as Judge tion drawing a distinction being between notes, Easterbrook dissenting opinion at required to attend a settlement conference magistrate’s order that Oat send being required negotiate. This dis- a representative with “authority to settle” puzzling. tinction is I suppose that if a could mean that representative Oat’s represented party required is to come to had to have the ability to settle by paying court to his position state if that —even money if, as the majority claims, —even position is simply, “I refuse to settle. See you at trial.”—that would not “authority to settle” did not mean that the requiring be representative had to be willing to use that party to “negotiate.” But ability. What is the point of insisting on if that is all the majority requiring, is then such if require not to negotia- the majority recognized has nothing more tion? than a district court’s The majority errs interpreting the litigants' waste ad- doing time what their attor- visory committee’s neys (and against could admonition have done were hired to negotiations forced do). too Rule narrowly. 16’s drafters Rule could hardly have against dead set approve (or meant to allow) coercive point- such a settlement practices. less exercise. The advisory committee note speaks only of facilitating is, provid- —that The majority obviously does not envision ing a forum to voluntarily that a settlement conferеnce should be the pursue Strandell, Cf. —settlement. pointless exercise sketched out above. The F.2d at 837. Even if possible it is to draw majority cites with approval the district “ a distinction between “discussing” and “ne- court’s statement that only require- ‘[t]he gotiating” that is reasonably possible ment imposed by magistrate was that enforce, the kind of coerced representative participation present [Oat’s] with full by represented parties in settle, should confer- terms for settle- ences that the majority ment proposed approve seems to acceptable were ” enough close Majority opinion to forced negotiation [Oat].' at 653. fall ma- jority also states within the advisory that a general district court committee’s ad- require represented against monition forced “to come to settlement. More- over, consider possibility of 16 “was not settle- intended to require ment.” But requiring that an unwilling that a litigant consider be sidetracked possibility from normal litigation.” course Id. party have authority to settle language if 16’s another and structure —its con- party proposes acceptable presuppos- terms sistent distinction between and es that stating besides his position, own unrepresented parties no doubt that —leave party must sit and listen parties’ in other the normal litigation, course of including (and, possibly, court’s) proposals. discussions, How settlement the rule’s drafters else could a representative with “authority envisioned that courts would work with to settle” act on might terms he find ac- attorneys, not the attorneys’ clients. Given

670 ber- judicial officer or a opposing advisory com- language, 16’s clear Rule going is walk position, litigation for con- his no room ate leave comments mittee’s feeling he will experience a district away rule to allow from that struing that threat under partiеs, at trial the court represented from order fair get a shake 16(f) and (see Fed.R.Civ.P. contempt capitulate. pressure to resists if he to discuss in court appear 37(b)(2)(D)),to unreasonably re- litigants who Obdurate settlement. strains majority why the headaches ask cause One to settle fuse language and clear Rule 16’s But liti- get litigants. around opposing and courts admonition advisory committee’s settle, nego- even duty or gants have no Im- practices. coercive against that tiate, clear federal 16 makes and Rule explicit opinion majority’s in plicit —and trying to force no business have courts panel opinion to the the dissent in —is litigant’s posi- If a negotiate. litigants to manage their case effectively that notion unsound, proce- factually legally is tion power to need the loads, courts district pleadings, judgment on the as such dures set- at appear represented order judg- dismissal, summary 12(b) and Rule opinion majority See conferences. tlement at an the case dispose of exist to ment Brewing Co. 650-51; G. Heileman at have sub- courts also stage. District early F.2d Corp., Joseph Oat they should take which stantial —of see also opinion); Cir.1988)(dissenting (7th punish friv- and advantage deter full 657. at —to dissenting opinion Judge Posner’s delay. See and undue litigation is), olous it it (and think I do not so if is Even among (mentioning, other F.2d at 1421-22 interpreting expansively justify does scheduling pow- courts’ things, to ex- the district courts’ district Moreover, the courts’ sanction- 16 sets. 16 and under Rule Rule er the bounds ceed demon- Judge Posner and Coffey Judge and powers under ing from allow- do result strate, if benefits courts 1927). district still And U.S.C. § par- to order ing forcing un- methods—without other conferences, those ties to attend in court under willing litigants appear substantial without not come do benefits settle- contempt facilitate threat —to expan- is that costs of those One costs. mеthod ments, including the time-honored power encour- construing inherent sively id; See early trials. cases to pushing This case high-handedness. judicial ages Strandell, also see la- accurately has Judge Posner (in which set- not produce do methods these Where as “arbi- magistrate’s actions beled will. tlements, unlikely that coercion it is willful, pet- unreasonable, and indeed trary, pro- does succeed coercion where And 658) ulant,” dissenting opinion at settlement, unlikely suc- ducing it involving Secretary of La- the case justice or the the cause will advance cess bor, Coffey, dissenting by Judge cited forum. image as a neutral court’s 661-62, aptly demonstrate that opinion at expense cost danger. Another justify attempt to to be what seems In try litigants that imposition coercing repre- by implying result cost is thirdA attorneys. hiring avoid con- at settlement appear parties to sented role in attorney’s denigration widespread has received ferences cost, as greatest Perhaps the litigation. “requir- asserts that majority approval, dissenting detail, explains Coffey Judge person parties to ing appear- damage to the 662, is the opinion settle- of ... parcel part has been ... court’s the federal fairness ance Majority years.” conferences ment forum, factors neutral image as a only case the n. 4. The at 651 opinion functioning. proper court’s to the essential is In re statement for this majority cites be- difference will about Say what Cir.1974). LaMarre, F.2d 753 coercing at- coercing settlement tween and defen- plaintiffs LaMarre, counsel to believe tendance, is difficult it on the district court to the indicated dants forced has been who litigant they had reached trial that morning of listen will, possibly his against settlement. The defendant’s insurer’s The rule consistently distinguishes between manager, however, clаims would not accept attorneys unrepresented parties on one the settlement. The district court ordered hand, represented parties on the other. the claims manager appear to in court to That distinction is consistent litigants’ with discuss and, the matter when the claims statutory right to representation by coun- manager appear, failed held him in crimi- sel and with the attorney’s traditional role contempt. nal at Id. 754-55. The court of litigation, including settlement. No rea- appeals upheld the general court's authori- son exists why Rule 16’s drafters wrote the ty to order the claims manager appear. rule as they did if they did not mean Id. at what they said. Finally, the advisory committee LaMarre distinguishable. Because of note to the 1983 amendment of Rule 16 the conflict defendant, between the his states that Rule 16 was not (hired meant counsel “to the insurance company), impose negotiations company, insurance arguable it is unwill- ing litigants,” company and, insurance was not a rep- more generally, that resented party (assuming that it was a Rule 16 is dead set against any coercion in all); party at though even the insurer hires settlement. Taken together, all this can pays the attorney, the attorney’s alle- lead to only one conclusion: Rule 16 leaves giance is to the defendant, not the insurer. no room for any power in the If so, that’s even the amended Rule 16 district courts to order parties would prohibit ordering the insurer’s appear at settlement conferences. representative in court because “Federal judges spend amended Rule 16 lots expressly of time telling authorizes dis- trict courts to order unrepresented other officials to stay within constitutional appear. and statutory bounds, however those may bounds particular

More chafe in importantly, LaMarre, circum desрite its broad language, see stances.” Newman-Green, id. at does not Inc. Alfon stand for any widespread judicial approval R., zo-Larrain 854 F.2d Cir. ordering represented parties 1988). However much federal courts may at settlement conferences. LaMarre power desire the to address unwilling par appellate (besides only case case) ties directly endeavoring to induce settle has even dealt with the impor- issue. More ments, Rule 16 commands that the courts tantly, the Sixth Circuit decided LaMarre through parties’ work attorneys if that long before the 1983 amendments to Rule is what desire. Rather than 16. Since the Sixth Circuit could not con- straining to circumvent Rule 16’s clear sider Rule 16 amended, as simply LaMarre command, we should demand that those of does not address whether as it in the us judiciary practice what we stands, now limits the pow- district court's preach so others, much to er order work within parties to appear at the entirely settlement conferences. reasonable limits that Rule 16 sets. magistrate Because the did not have The answer to question that La- to order corporate Oat send a Marre could not address is clear. Rule representative amended, to the settlement confer authorizes district courts to ence, order attorneys I unrepresented would reverse the district court’s parties to appear at conferences. judgment.2 majority 2. The also holds that Oat has waived trate had the order toOat send a objection magistrate’s to the order corporate representative, because other than attor- object Oat did not before ney, conference, the settlement confer- to the magistrate majority opinion ence. See exercising 654-55. For abused his power. discretion in panel opinion, reasons stated in the Even if corporate district court order a 1418,1 would hold that has representative Oat not waived its appear, the court not in- right object magistrate’s to the I representative order. also sist that the "authority agree Judge magis- Posner that even if the settle.” advisory See Fed.R.Civ.P. committee M.D., MAYOZA, an individual C. James Mayoza, C. the James Trustee Trust, Plan M.D., Pension Defined Inc. trust, C. the James an Oklahoma Inc., Roll M.D., Fund Pension Mayoza, trust, Plain Trust, an Oklahoma over

tiffs-Appellants, INC., COMMODITIES,

HEINOLD corporation,

Delaware

Defendant-Appellee.

No. 88-1432. Appeals, Court of States

United Circuit.

Seventh 10, 1988.

Argued Nov. 29, 1989. March

Decided Judge Easterbrook’s litigation”); 16(c) see also ‘authority’ in ("The reference note opinion at dissenting ability upon to settle not intended insist Notes (c) These corpo subdivision within position hold quired to being required between a distinction defini draw speak allowing him to entity rate and be- conference settlement to attend a to a corporation tively to commit in settlement participate required to ing do litigation. We position in the particular Thus, the scheme under negotiations. require as a “authority settle” not view conferences, corpo- pretrial settlement must representatives corporate ment that free, on behalf remains representative rate someone to settle on willing court come to entity, propose terms corporate come to terms, only they else’s compel 8.Likewise, cannot a court not are Civil Procedure Rules The Federal 6. Constr. Co. stipulate facts. J.F. Edwards grounded the district in only set of rules Corp., F.2d authority. Safeway not Rail 542 Guard Circumstances Anderson courts' inherent explicitly curiam). Cir.1976) Rules can a (7th (per the Federal in Nor authorized 1318 rulings derived participate such as limine a non- litigants Evidence compel authority to Strandell, district court’s from the summary jury 838 binding trial. v. United See manage States, trials. Luce the course of vein, force a a court cannot the same 887. n. 463 n. S.Ct. U.S. Corp. v. discovery. Identiseal engage omitted). (citations (1984) 83 L.Ed.2d Inc., Sys., 560 F.2d Positive Identification Cir.1977). magis- authorized had pursuant to pretrial matters all trate to resolve 636(b)(1)(A). § 28 U.S.C. independently he litigation This involved a for $4 claim —but required pretrial to state terms in a those million—a claim which upon turned the res- judge magistrate. before a complex olution of factual legal is- litigants sues.9 The expected the trial to position, As an alternative Oat Cor last from one to three par- months and all poration argues that the court abused its ties stood to incur legal substantial fees discretion corporate representa to order expenses. and trial This trial also would litigants tives of the to attend the have preempted large segment Corporation settlement conference. Oat insignificant time—not an Thus, factor. determined that because business was a because the high, stakes were we do not “going concern”: believe requiring burden of a cor- It would be magis- unreasonable for the porate representative to attend a require trate to president of that settlement conference was propor- out of corporation to leave his business Cam- [in tion to the gained, benefits to be not den, Jersey] Madison, New to travel to but also the court. Wisconsin, to participate in a settlement Additionally, corporation did send an conference. The expense and burden on attorney, Mr. Fitzpatrick, from Philadel- part of Joseph comply Oat to phia, Pennsylvania Madison, Wisconsin clearly order was unreasonable. to “speak for” the principals corpo- Consequently, Oat Corporation believes ration. It is difficult to see how ex- that the district court authority. abused its penses involved in sending Fitzpatrick Mr. recognize, court, did the district from Philadelphia to Madison would hаve that circumstances could arise in which re- greatly exceeded expenses involved in quiring corporate (or representative sending corporate representative from litigant) at a Camden to Madison. Consequently, we do conference would be onerous, clearly so so expenses think the and distance to be unproductive, or expensive so in relation to traveled are unreasonable in this case. size, value, and complexity of case might Furthermore, it objection be an no magis- abuse of to the discretion.

Notes

suggests the amendments Notes [that] were in- facts, etcetera.” tended to make ‍​‌‌‌‌‌​​‌‌​‌​‌​‌​​​​‌‌​​‌​‌‌​‌​​​​‌​‌​​‌‌‌‌‌‌​​‌‍the rule coercive.” Stran- 85-1640, No. unpublished (7th order at 2-3 dell, 838 F.2d at 888. In our sys- April 23, 1985). Cir. The district court add- party tem all litigants are entitled to their ed that: day in court present their claims or “I you will tell now through that I am defenses impartial before an judge jury. Department with the waltzing Labor’s Our trial judges must never prey fall around, taking positions, ridiculous becoming part process of a that even sub- saying this is the Government. The liminally suggests pressure forego Secretary Labor, Government so right essential of trial. far as I’m concerned. And I want to see An example possible abuse that him at 10:00 o’clock on the April 23rd can result from creation of an inherent in this courtroom tell me why require rep- Secretary attendance of Labor taking idiotic these party litigants resented at a positions.” confer- 85-1640, unpublished dent, 3. No. merely order at 2 Cir. description for its of the in- 23, 1985). April This prece- order is not as cited volved factual situation. understanding of the nuanc- basic have the authority” to “inherent Creation lawyers that we legal proceedings es of litigant at of a presence require the education, through years of prob- gained a host presents they experience, training and power professional has the Certainly, the lems. dismayed with attorneys at be confused well could the attendance to command

Case Details

Case Name: G. Heileman Brewing Co., Inc. v. Joseph Oat Corporation

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 27, 1989

Citation: 871 F.2d 648

Docket Number: 86-3118

Court Abbreviation: 7th Cir.