In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-2950 & 98-3260

LARRY SPAIN,

Plaintiff-Appellant,

and

ERIC E. VICKERS,

Appellant,

v.

BOARD OF EDUCATION OF MERIDIAN COMMUNITY
UNIT SCHOOL DISTRICT NUMBER 101,

Defendant-Appellee.



Appeals from the United States District Court
for the Southern District of Illinois.
No. 95 C 4265--G. Patrick Murphy, Judge.


Argued December 8, 1999--Decided June 6, 2000



  Before HARLINGTON WOOD, JR., COFFEY, and FLAUM,
Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. This case is
an appeal from an order of the United States
District Court for the Southern District of
Illinois dismissing with prejudice the civil
rights case of plaintiff Larry Spain and an order
of sanctions against Mr. Spain’s counsel, Eric
Vickers. Mr. Spain filed this suit under Title
VII of the Civil Rights Act of 1964, 42 U.S.C.
sec. 2000e et seq., and 42 U.S.C. sec. 1981 in
November, 1995, claiming he was wrongfully
terminated as school principal because of his
race by his employer, defendant-appellee Board of
Education of Meridian Community Unit School
District Number 101 ("the Board").

I.    BACKGROUND

  Mr. Spain’s case was originally assigned to
Judge J. Phil Gilbert. During discovery, the
Board filed a Motion to Compel Answers to
Interrogatories and Responses to a Request for
Production based on plaintiff’s failure to file
his initial disclosures and to cooperate in
discovery. The court granted this motion, and on
December 5, 1996, as a sanction ordered plaintiff
to pay $285 in attorney’s fees and costs to
defense counsel by January 8, 1997. The sanction
was not paid until July 27, 1998. In April, 1998,
the case was reassigned to newly-appointed Judge
G. Patrick Murphy and was set for trial for June
23, 1998. On May 28, 1998, the district court
held a pre-trial conference. During the pre-trial
conference at which Mr. Vickers was present, the
court ordered the jury instruction conference set
for June 3, 1998 at 9:00 a.m. At this time the
parties were to provide the court with their
proposed jury instructions.

  Mr. Vickers was absent for the 9:00 a.m. start
of the jury instruction conference. Noting that
the case was set for trial on June 23, 1998, the
court proceeded with the conference despite Mr.
Vickers’s absence. Defense counsel informed the
judge that he had not received a list of exhibits
or any proposed jury instructions from
plaintiff’s counsel. The district judge noted
that Mr. Vickers had been unprepared at the May
28 pre-trial conference and stated that he was
considering asking defense counsel to draft a set
of jury instructions. The court then took a short
recess.

  Following the recess, the court asked defense
counsel whether the previously ordered sanction
for failure to cooperate in discovery had been
paid. Defense counsel informed the court that it
had not. The court again noted that at the May 28
pre-trial conference "plaintiff’s lawyer was
completely unprepared and offered no particular
excuse for being unprepared." The court
recognized its power to sanction counsel under
Rules 16 and 37 of the Federal Rules of Civil
Procedure for refusal to cooperate. The court
stated "[o]rdinarily, the Court would simply
assess some attorney’s fees and costs and try to
get the case back on schedule. But, that’s been
tried in this case before and that didn’t work."
The court, citing Mr. Vickers’s failure to pay
the previously ordered $285 sanction, his lack of
preparation for the pre-trial conference, and his
failure to appear at the jury instruction
conference, dismissed the case with prejudice.
That same day, the court issued a written order
entering default judgment against Mr. Spain for
failure to prosecute.

  Mr. Vickers, mistaken as to the time of the
hearing, arrived in court at approximately 9:30
a.m. on June 3. By this time, the hearing had
concluded. In chambers, Mr. Vickers told the
court he never received a written order setting
the time of the jury instruction conference./1
After being informed that his client’s case had
been dismissed with prejudice, Mr. Vickers filed
a motion asking the court to reconsider the
dismissal which the court construed as a motion
to alter or amend the judgment pursuant to
Federal Rule of Civil Procedure 59.

  On July 23, 1998, a hearing was held on the
motion to reconsider. The court ordered counsel
to have their clients present at the hearing. At
the beginning of the hearing, the following
exchange took place between the court and Mr.
Spain:

THE COURT: . . . Mr. Spain, have you been told
that your case was dismissed?

MR. SPAIN:   No, I have not.

THE COURT:   You have not?

MR. SPAIN:   No.

THE COURT: Have you been told why I ordered you
here today?

MR. SPAIN: I received a letter indicating that
it was for reconsideration.

THE COURT: And this is the first time you even
knew your case had been dismissed?

MR. SPAIN:   Yes.

At the hearing, the court heard from Mr. Spain,
Mr. Vickers, and defense counsel. Following a
recess, the court, citing Mr. Spain’s sympathetic
situation due to his counsel’s actions and the
severity of dismissal as a sanction, granted the
motion to reconsider on three conditions. The
court outlined these conditions at the hearing
and also in a written order dated July 24, 1998.
First, Mr. Vickers was ordered to comply with all
previous orders in the case including paying the
$285 sanction. Secondly, Mr. Vickers must refer
his failure to keep his client apprised as to the
progress of his case and to inform his client of
the dismissal of his case to both the Illinois
Attorney Registration and Disciplinary Commission
and the corresponding disciplinary authority in
Missouri. Finally, Mr. Vickers was ordered to pay
defense counsel $2,000 in attorney’s fees to
"defer the additional expenses and annoyance
occasioned by [Mr. Vickers’s] conduct in this
case." If Mr. Vickers were to comply with these
conditions within five working days, the case
would be reinstated. At the hearing Mr. Vickers
expressed some reluctance to comply with the
conditions set out by the court. At that point,
the court clearly informed Mr. Spain that Mr.
Vickers had "not shown any inclination to comply
with the previous orders" of the court and that
if Mr. Vickers failed to comply with these
conditions "the case will be dismissed, or the
dismissal will remain effective." However,
anticipating Mr. Vickers’s compliance, the court
stated that the case would be tried on August 25,
1998 at 8:00 a.m. In the July 24 written order,
the court addressed Mr. Vickers’s expressed
reluctance to comply with the conditions as
follows:

Mr. Vickers expressed some reluctance to comply
with this Order. If he does not, this Court will
obtain compliance through its contempt power in
order that the authority and dignity of this
Court be maintained. Whether Mr. Spain receives
his day in court is completely contingent upon
Mr. Vickers’ prompt and strict compliance with
this Order. However, regardless of whether his
compliance is strict and prompt, it will be
forthcoming.

  The day after the hearing, Mr. Vickers wrote
Mr. Spain a letter, with carbon copies to the
judge and defense counsel, saying he would not
submit to the conditions imposed by the district
court. The court received its copy of the letter
on July 27, 1998, and the next day entered an
order denying the motion to reconsider the
dismissal. The court also issued an order for Mr.
Vickers to show cause why he should not be held
in contempt of court based on his failure to
comply with the conditions imposed by the
district court and on what the court viewed as
several misrepresentations in his letter to Mr.
Spain. Mr. Vickers filed a Motion for Change of
Judge, citing the court’s bias in placing the
blame on the plaintiff, issuing an order that was
a personal attack, and seeking to deny both
plaintiff and counsel the right to appeal and
right of trial. This motion was denied, and
following the show cause hearing, the district
court found Mr. Vickers in civil contempt of
court, upheld the earlier conditions, and imposed
a fine of $50 a day against Mr. Vickers to run
until he fully complied with the conditions.

  On July 30, 1998 a notice of appeal was filed
in the case, and on September 3, 1998 an amended
notice of appeal was filed, challenging (1) the
original default judgment against Mr. Spain, (2)
the order granting the motion to amend judgment
provided Mr. Vickers complies with the three
conditions, (3) the order denying reconsideration
due to Mr. Vickers’s non-compliance, and (4) the
denial of the motion to stay execution of
judgment.
II.    ANALYSIS

  A.    Appellate Jurisdiction

  Appellee has filed a motion to strike Mr.
Spain’s portion of the appeal, arguing Mr. Spain
is not a party to this appeal since only Mr.
Vickers and not Mr. Spain filed a proper notice
of appeal. We must first decide this
jurisdictional question before proceeding to the
merits of Mr. Spain’s appeal. The body of the
amended notice of appeal consisted of the
following sentence:

Notice is hereby given that Eric E. Vickers,
counsel for Larry Spain, plaintiff above-named,
hereby appeals to the United States Court of
Appeals for the Seventh Circuit for the orders
entered in this action on June 3rd, July 24th,
July 28th, 1998 and August 20, 1998.

The caption of the appeal stated "Larry M. Spain,
Plaintiff v. Board of Education of Meridian
Community Unit School District Number 101,
Defendant."

  Federal Rule of Appellate Procedure 3(c)(1)(A)
requires a party to name each party appealing in
the "caption or body of the notice" of appeal.
Rule 3(c)(4) provides that an appeal will not be
dismissed for "failure to name a party whose
intent to appeal is otherwise clear from the
notice." The 1993 advisory committee notes to
Rule 3 consider the designation sufficient if "it
is objectively clear that a party intended to
appeal." Appellee cites to Clay v. Fort Wayne
Community Schools, 

(7th Cir. 1996),
to support his Rule 3(c)(1)(A) argument.

  Clay was a class action suit in which both
parents and their children sued a school
district. The case was dismissed, and on appeal,
this court ruled that the children did not have
grounds for appeal since only the parents were
named in the notice of appeal. 

We
reasoned that in not mentioning the children in
the notice, "the adult plaintiffs were appealing
all adverse judgments entered against them not
judgments entered against their children or
student plaintiffs." 

emphasized the
importance of clarity in the notice of appeal in
class action cases otherwise "class-action
defendants in actions brought by multiple
plaintiffs, would never know which classes were
appealing the court’s decision." 

be distinguished from the facts in the
present case. Clay was a class action case, and
absent specific notice of appeal, it was unclear
which plaintiffs were appealing. Here, there is
only one party in this case. Two of the orders
specifically listed in the notice of appeal are
the order to dismiss Mr. Spain’s case and the
order denying Mr. Spain’s motion to reconsider
his dismissal. These two orders dealt only with
Mr. Spain’s case and not with Mr. Vickers’s
sanctions. Therefore, under Federal Rule of
Appellate Procedure 3(c)(4), even though Mr.
Spain was not named in the body of the notice of
appeal, his "intent to appeal is otherwise clear
from the notice." The notice of appeal made it
objectively clear that Mr. Spain intended to
appeal. Also Mr. Spain’s name was included in the
caption of the appeal, as required by Rule
3(c)(1)(A). Mr. Spain is a proper party to this
appeal, and we may consider his claims on the
merits. Appellee’s motion to strike is denied.


  B.   Dismissal and Motion to Reconsider

  Federal Rule of Civil Procedure 16(f), which
incorporates Rule 37(b)(2)(C), allows a district
court to dismiss an action for failure of a party
to attend a pre-trial conference. The court has
this power in order to "achieve the orderly and
expeditious disposition of cases." Link v. Wabash
Railroad Co., 

, 630-31 (1962).
However, the court shall not dismiss a case
"without due warning to the plaintiff’s counsel."
Ball v. City of Chicago, 

, 755 (7th
Cir. 1993). Due warning does not require the
judge to "notify the plaintiff himself, as
distinct from his lawyer, before dismissing." 

Dismissal should be used "only in extreme
situations, when there is a clear record of delay
or contumacious conduct, or when other less
drastic sanctions have proven unavailable."
Kruger v. Apfel, No. 98-4193, 

, at
*3 (7th Cir. May 10, 2000) (internal quotations
and citations omitted). Spain argues that the
district court erred both in dismissing his case
and in denying his motion to reconsider. We apply
the abuse of discretion standard when reviewing
an order to dismiss. National Hockey League v.
Metropolitan Hockey Club Inc., 

, 642
(1976). We also apply abuse of discretion when
reviewing the denial of a Rule 59 motion to amend
the judgment. Britton v. Swift Transportation
Co., Inc., 

, 618 (7th Cir. 1997).

  In the present case, Mr. Vickers, by not
attending the jury instruction conference,
violated Rule 16(f). In his brief, Mr. Vickers
claims that his failure to attend was the
district court’s fault, since the written notice
for the conference arrived late. While the order
did indeed arrive late, Mr. Vickers was present
at the previous conference where the court
announced on the record the time of the jury
instruction conference as 9:00 a.m. The fact Mr.
Vickers did show up for the conference on that
day, shows that he knew of the hearing and was
not relying solely on written notice. Since the
district court later granted the motion to
reconsider upon three conditions, the court did
not "accord favorable treatment to appellee" as
Mr. Vickers contends.

  Mr. Vickers received "due warning" that the
case would be dismissed at the reconsideration
hearing. The district court, citing the difficult
position of Mr. Spain, who was not at fault,
allowed the case to be reinstated provided Mr.
Vickers comply with the three conditions within
five working days. While the case was still
technically dismissed, the court stated that it
would reinstate the case provided Mr. Vickers
promptly complied with the conditions. Therefore,
Mr. Vickers had due warning before the case was
finally dismissed. Not only did Mr. Vickers
receive this warning, but so did Mr. Spain, who
was present for the reconsideration hearing. At
the hearing, Mr. Vickers, in the presence of his
client, indicated his reluctance to comply with
the three conditions. The district court received
Mr. Vickers’s letter to Mr. Spain on July 27,
1998, three days after the hearing on the motion
to reconsider. In the letter Mr. Vickers told his
client that he would not comply with the three
conditions. The court, reasonably taking this
letter as Mr. Vickers’s failure to comply,
ordered Mr. Vickers to show cause why he should
not be held in contempt and refused to reinstate
the case.

  In ordering both the original dismissal and in
conditionally granting the motion to reconsider,
the court cited several instances of delay
committed by Mr. Vickers throughout the case.
These included failure of Vickers & Associates to
provide initial disclosures, failure to answer
interrogatories, failure to pay the previously
ordered $285 sanction for failing to make initial
disclosures, and lack of preparation at the May
28 pre-trial conference. Finally, there was the
failure of Mr. Vickers to attend the June 3 jury
instruction conference. These facts support a
finding of a "clear record of delay." Kruger,

, at *3. Also the fact that Mr.
Vickers did not pay the previous sanction for a
year and a half gave the court grounds to believe
further monetary sanctions would be ineffective,
particularly when Mr. Vickers informed his client
and the court that he would not comply with the
conditions. While going from a sanction of $285
to dismissal may seem an abrupt increase in
severity, Mr. Spain does not claim he was lulled
into a false sense of security. Furthermore, at
the reconsideration hearing, the court
"reiterated crystalline warnings of the imminent
dismissal of this case." 

.
This was enough for Mr. Spain to be aware
dismissal was a real possibility.

  The district court provided the required warning
to both the plaintiff and his counsel. It was
after this warning that Mr. Vickers informed the
court he would not comply with the conditions for
reinstatement. This warning, combined with the
earlier delays and the ineffectiveness of
previous sanctions, are sufficient to support a
finding that the district court did not abuse its
discretion in dismissing the case or in denying
the motion to amend judgment.


  C.   Sanctions Against Mr. Vickers

  Mr. Vickers also appeals, arguing that the
sanctions imposed against him were "illegal."
When reviewing Rule 16(f) sanctions, whether it
is dismissal or sanctions against an attorney, we
apply the abuse of discretion standard. National
Hockey 

; Smith v. Chicago
School Reform Bd. of Trustees, 

,
1144 (7th Cir. 1999). In the order on the motion
to reconsider, the district court ordered Mr.
Vickers to pay the previously ordered $285
sanction for failure to make initial disclosures.
The court further ordered Mr. Vickers to refer
himself to the Missouri and Illinois attorney
disciplinary agencies for failing to inform Mr.
Spain of the dismissal of the case. Finally, the
court required Mr. Vickers to pay $2,000 in
attorney’s fees to defense counsel to "defer the
additional expenses and annoyance occasioned by
[Mr. Vickers’s] conduct in this case." Prior to
the show cause hearing, but after writing the
letter, Mr. Vickers paid the $285 and referred
himself to the disciplinary authorities, which
left the $2,000 in attorney’s fees. Following the
show cause hearing the court found Mr. Vickers in
civil contempt to "compel compliance" with the
remaining sanction of $2,000.

  Mr. Vickers initially argues that the sanctions
were illegal because they resulted from his
letter to his client which he contends was
Constitutionally-protected speech and, therefore,
"non-contemptuous." However, Mr. Vickers fails to
recognize that the sanctions were imposed not
because of his letter to his client, but based on
several failures and delays in the prosecution of
the case by Mr. Vickers. In its July 24 order
imposing the sanctions, the court expressly
stated that the sanctions were based on "a
pattern of neglect and slovenly practice" by Mr.
Vickers. The July 24 order made clear that,
should Mr. Vickers fail to comply with the
sanctions, the court would "obtain compliance
through its contempt power in order that the
authority and dignity of [the court] be
maintained." At the show cause hearing, the court
noted "[t]he purpose of civil contempt is
essentially to compel compliance" and found Mr.
Vickers in contempt of court, not based on the
contents of his letter, but for his failure to
pay the $2,000 in attorney’s fees that had been
ordered. Given the history of delay in the
record, the district court did not err in holding
Mr. Vickers in contempt for failing to comply
with valid, court-ordered sanctions. Furthermore,
Mr. Vickers argues that the court unjustifiably
ordered the show cause hearing before the five
days allotted for compliance with the order had
expired. However, after receiving a carbon copy
of the letter from Mr. Vickers to Mr. Spain
stating that he would not comply with the
conditions ordered by the district court, the
district judge was reasonable by concluding that
Mr. Vickers would not comply within the allotted
five days. In fact, at the time of the show cause
hearing on August 6, 1998, Mr. Vickers had not
yet fully complied with the conditions.

III.   CONCLUSION

  Appellee’s motion to strike is DENIED. The
decision of the district court is AFFIRMED.


/1 The record reveals that in fact, the court’s
written order setting the hearing for 9:00 a.m.
on June 3 did not arrive at Mr. Vickers’s office
until the 10:00 a.m. mail delivery on June 3.