In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1421

CYNTHIA EASLEY, Individually and

as Administrator of the Estate of

CHRISTOPHER B. EASLEY,

Plaintiff-Appellant,

v.

DAVID KIRMSEE, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01 C 938—Thomas J. Curran, Judge.

____________

ARGUED NOVEMBER 7, 2003—DECIDED AUGUST 30, 2004

____________

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

COFFEY, Circuit Judge. Cynthia Easley appeals the

district court’s denial of her motion under Fed. R. Civ. P.

60(b) to vacate its grant of summary judgment against her in

an action under 42 U.S.C. § 1983 against four Wisconsin

local governmental units and a number of their respective

police officers. We affirm.
2 No. 03-1421

I. Background

A Geneva Township, Wisconsin, police officer, David

Kirmsee, shot and killed Christopher Easley on October 26,

2000. The unfortunate incident occurred when Officer

Kirmsee (and the other named defendant officers) responded

to a call placed by Cynthia Easley asking for police help

with her eighteen-year-old son, Christopher, whom Easley

reported had just left her house brandishing a knife and

bleeding profusely from self-inflicted knife wounds. Easley

advised police that Christopher was both emotionally disturbed and intoxicated. Kirmsee and the other law enforcement officers who responded came upon Christopher, knife

in hand, in the middle of a residential neighborhood. Kirmsee

drew his weapon and attempted to convince Christopher to

surrender, but the boy refused to drop the knife and instead

raised the knife threateningly and advanced on Kirmsee.

Initially Kirmsee attempted to retreat, but was forced to

hold his ground when he discovered that he was on uneven

and unfamiliar terrain, without a known route or path of

escape. When Christopher continued to advance, and continued to ignore warnings to stop and drop the knife, Kirmsee

fired his weapon at Christopher and hit him in the chest,

fatally injuring him.

After a lengthy inquest, a jury finding absolved Kirmsee

of wrongdoing in the shooting. The decedent’s mother,

Cynthia Easley, in spite of this finding, filed suit on behalf

of herself and Christopher’s estate on September 14, 2001,

alleging that Kirmsee violated her son Christopher’s Fourth

Amendment right to be free from unreasonable seizures by

use of excessive force in apprehending him, and also alleging that the remaining officer-defendants failed to intervene

to prevent Kirmsee’s alleged use of excessive force, and

furthermore that the four defendant local governmental

units failed to train their officers properly to apprehend the

young man without the use of excessive force.
No. 03-1421 3

After the parties voluntarily exchanged initial discovery,

the court held a scheduling conference on December 11,

2001, and announced its pretrial schedule. At the conference,

both parties agreed that, because of the extensive jury inquest, resulting in a transcript of some thousand pages consisting of testimony as well as forensic materials relevant to

the shooting incident, both parties had thus garnered much

of the necessary information that would normally be

received through discovery. With this in mind, the court ordered an abbreviated discovery schedule focusing on the disclosure of expert witnesses: Easley was ordered to disclose her

experts by July 1, 2002, and the defendants were to disclose

their experts by August 1, 2002. The court further designated August 15, 2002 as the deadline for filing dispositive

motions and ordered that the discovery of all expert witnesses be completed by September 1, 2002, and that all

remaining discovery be completed by December 1, 2002.

Easley’s discovery schedule did not proceed as expeditiously

as previously planned and agreed upon. After making her

required initial disclosures, Easley did nothing further in

relation to discovery until the court’s July 1, 2002 deadline

for disclosure of expert witnesses came and passed. The day

after, on July 2, 2002, Easley moved to extend the deadline

to August 15, 2002 for the disclosure of her experts. The

court granted Easley’s belated request, but only “as to those

experts not needed in connection with any anticipated dispositive motions to be filed on August 15, 2002.” The court

further ordered that its original scheduling order was to

remain in full force and effect in all other respects.

The defendants complied and filed motions for summary

judgment within the court-ordered due date, August 15, 2002.

Easley also filed a brief (three-page) motion for summary

judgment that same date, but her motion papers were barren of any argument—much less any proposed findings of
4 No. 03-1421

1 Easley’s summary judgment motion was accompanied by a motion to amend her complaint and add a claim under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Easley

sought this amendment despite the fact that the district court had set

forth in its scheduling order that all amendments to the pleadings

should be made by January 15, 2002 (eight months before Easley

filed this motion seeking to amend). Easley’s contemporaneouslyfiled summary judgment motion addressed only this proposed

amended claim, alleging that the defendants had violated the ADA

by not having procedures in place to accommodate Christopher’s

alleged disability, “serious” “emotional problems.” The district court

denied Easley’s motion to amend her complaint in a separate order

dated October 2, 2002.

fact—in support of her Fourth Amendment claim.1 On

August 15 Easley also disclosed her expert, Dr. George

Kirkham, but failed to include any report or statement of

facts or any opinion by Dr. Kirkham with her disclosure as

mandated in the court’s scheduling order. Not surprisingly,

on September 16, 2002, she moved for additional time to

complete the discovery of expert witnesses so that the

defendants could depose Dr. Kirkham. The court denied

Easley’s motion to reset the discovery schedule, but did allow her until October 1, 2002 to file Dr. Kirkham’s report,

and until October 7, 2002 to make the doctor available for

a deposition. The court further ordered that all discovery of

experts must be completed by November 15, 2002, and that

the court’s original scheduling order was in all other respects

to remain in full force and effect.

Easley, however, never did file a response to the defendants’

summary judgment motions (local rule mandated the response within thirty days), and on November 26, 2002 (more

than two months after the response due date), the court

granted summary judgment to the defendants. The court

noted Easley’s failure to file a response, adopted the defendants’ findings of fact, and ruled on the merits of defendants’

(unopposed) motions, holding that Easley failed to establish
No. 03-1421 5

2 Easley filed her motion to reconsider more than ten days after

the court entered final judgment against her, so the court correctly treated her post-judgment motion as one under Rule 60(b)

instead of Rule 59(e). See Helm v. Resolution Trust Corp., 43 F.3d

1163, 1166-67 (7th Cir. 1995).

3 Easley also asks us to review the court’s grant of summary

judgment. But this decision is not before us, as Easley failed to notice

her appeal within thirty days of the entry of final judgment, see

(continued...)

that Kirmsee’s use of force was unreasonable, and, furthermore, that she also failed to prove that the four local government entities’ officers were inadequately trained.

Easley filed a motion to reconsider on December 26, 2002,

arguing that the court’s grant of summary judgment to the

defendants was improper because the parties had not completed discovery. Easley posited that, when the court granted

extensions on discovery, it implicitly extended the date for

responding to dispositive motions. Easley also attached to

her motion transcripts of the jury inquest and transcripts

of the expert depositions that the parties had taken after

the deadline for filing dispositive motions had passed. Easley

argued that the documents she submitted demonstrated disputed issues of fact that precluded the entry of summary

judgment. Easley did in this instance partially support her

arguments with citations, but only as to the jury inquest,

and not as to the experts’ depositions.

The court denied Easley’s motion, ruling that she failed

to present an adequate excuse for neglecting to file a response to the defendants’ motions for summary judgment,

nor any other grounds under Fed. R. Civ. P. 60 “to persuade

the court” to reopen the case.2

 The court noted that all the

arguments and evidence Easley cited in her motion for reconsideration “were available during the briefing period for

the summary judgment motions.” Easley appeals the district court’s denial of her Rule 60(b) motion.3
6 No. 03-1421

3 (...continued)

Fed. R. App. P. 4(a)(1), and did not file any motions that would

have tolled the time to file her appeal, see Fed. R. App. P. 4(a)(4).

Thus we review only the court’s denial of her Rule 60(b) motion.

Castro, 214 F.3d at 934.

4 The defendants contend that Easley waived this argument by

not presenting it to the district court in her motion to reconsider.

See Swaim v. Molton Co., 73 F.3d 711 (7th Cir. 1996). Although

Easley’s argument on appeal varies slightly from the one she presented to the district court, we think this is a distinction without

a difference. At heart, Easley’s argument both in the district court

and on appeal is that summary judgment was improper because

the court was aware that discovery was incomplete and that the

court misled her into assuming that the deadline for filing responsive motions was at least coterminous with the close of discovery.

We see no reason to find waiver here.

II. Analysis

On appeal, Easley raises a most novel argument. She

argues that she was justified in failing to respond to the

defendants’ summary judgment motions because the court

somehow led her attorney to believe that it had implicitly

extended her response deadline in granting her motions for

extensions of discovery. She contends that the court sent

her mixed signals that justified her attorney’s neglect in

complying with the deadline mandated in the local rule

dealing with the filing of responses to summary judgment

motions.4

 She argues that, under these circumstances, summary judgment was improper and the court abused its

discretion when it refused to grant her Rule 60(b) motion

and vacate its summary judgment against her.

We evaluate a court’s decision to deny relief under Rule

60(b) only for an abuse of discretion. Castro v. Bd. of Educ.,

214 F.3d 932, 934 (7th Cir. 2000). We agree that the trial

judge correctly treated Easley’s motion as one under

Rule 60(b)(1), which allows the trial judge to vacate a final
No. 03-1421 7

judgment based on “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1); Castro, 214 F.3d

at 934. A trial judge’s decision to grant or deny relief under

Rule 60(b)(1) is discretionary, and our review, therefore, is

extremely deferential. Castro, 214 F.3d at 934.

On the basis of the record presented, we are convinced

that the trial court did not abuse its discretion in denying

Easley’s motion. The court’s orders regarding pretrial deadlines were unambiguous, clear, direct and straightforward.

The court delineated and set forth the date for filing dispositive motions at the scheduling conference, and never

deviated from its August 15, 2002 deadline. When Easley

sought additional time to disclose her experts on July 2, 2002,

the court granted her request, but only “as to those experts

not needed in connection with any anticipated dispositive

motions to be filed August 15, 2002.” When Easley again

sought additional time, this time to complete disclosure of

her expert witness on September 16, 2002—more than a

month after dispositive motions were due and about the

time her response to the defendants’ summary judgment

motions was due—the court once again gave her additional

time to schedule a deposition and file her expert reports,

but stated that its original scheduling order was otherwise

to remain intact. The court’s orders were neither ambiguous

nor confusing, and there was nothing contradictory in the

court’s orders that would or should cause a diligent,

conscientious, intelligent, qualified and well-trained attorney

to misinterpret, much less be misled by the court’s directives.

Furthermore, we also note that counsel at no time asked

the court for any clarification of any order. Simply put, from

our reading of the record, the court did not contribute in

any manner to Easley’s attorney’s neglect in following the

court’s deadline to respond to the defendants’ motions for

summary judgment.
8 No. 03-1421

Even if we were to view Easley’s attorney’s failure to

respond to the defendants’ summary judgment motions as

even partially justified by contradictory signals from the

court, and therefore “within the gray area between carelessness and excusable neglect,” it was Easley’s attorney’s

responsibility to seek clarification from the court before

attempting to make self-serving unilateral assumptions about

the court’s adjustment of the pretrial calendar. Hough v.

Local 134, Int’l Bhd. of Elec. Workers, 867 F.2d 1018, 1022

(7th Cir. 1989); see also Bohlin Co. v. Banning Co., 6 F.3d

350, 357 (5th Cir. 1993) (“A party has a duty of diligence to

inquire about the status of a case.”). Although attorney

carelessness can constitute “excusable neglect” under Rule

60(b)(1), see Castro, 214 F.3d at 934; Robb v. Norfolk & W.

Ry. Co., 122 F.3d 354, 359-60 (7th Cir. 1997), attorney inattentiveness to litigation is not excusable, no matter what

the resulting consequences the attorney’s somnolent behavior

may have on a litigant. See Robb, 122 F.3d at 360; Helm v.

Resolution Trust Corp., 84 F.3d 874, 878 (7th Cir. 1996); In

re Plunkett, 82 F.3d 738, 742 (7th Cir. 1996) (“Missing a filing

deadline because of slumber is fatal.”). Easley’s attorney’s

conduct can only be classified as inexcusable inattentiveness

or neglect, rather than excusable carelessness. Indeed, a trial

court has an obligation to control and manage its own

docket, and this type of outright and consistent disregard of

a court’s scheduling orders—such as that exhibited here by

Easley’s attorney—certainly gives the trial court sufficient

reason under Fed. R. Civ. P. 41(b) to involuntarily dismiss

an action for want of prosecution. See, e.g., Aura Lamp &

Lighting , Inc. v. Int’l Trading Corp., 325 F.3d 903, 909-10

(7th Cir. 2003) (holding that the power to control a court’s

docket is vested in the trial judge, and that there comes a

point when a litigant’s disregard of scheduling orders becomes so serious that a sanction, including the rendering of

the ultimate sanction of dismissal, is in order); Williams v.

Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (per

curiam) (“District courts inherently possess the authority to
No. 03-1421 9

dismiss a case sua sponte for want of prosecution. Such a

dismissal is one of the tools available to district courts ‘to

achieve the orderly and expeditious disposition of cases.’ ”

(internal citations omitted)). Easley’s attorney’s record of

conduct here in failing to prosecute her case in a lawyer-like

fashion approaches a “clear record of delay or contumacious

conduct” that would justify such a dismissal. See Williams,

155 F.3d at 857 (citing Dunphy v. McKee, 134 F.3d 1297, 1299

(7th Cir. 1998)). In a nutshell, Easley is asking us to bail

her out and excuse her counsel’s neglect of the case and

contemptuous conduct in an attempt to shift the blame for

her attorney’s inattentiveness to the district court, and this

we refuse to do. Tango Music, LLC v. Deadquick Music, Inc.,

348 F.3d 244, 247 (7th Cir. 2003); Jovanic v. In-Sink-Erator

Div. of Emerson Elec. Co., 201 F.3d 894, 897 (7th Cir. 2000);

Bohlin Co., 6 F.3d at 356-57.

Easley repeats her prior argument, that the court improvidently granted summary judgment before allowing her

to complete her discovery and thus denied her a sufficient

opportunity to respond to the defendants’ motions for

summary judgment. In light of the numerous extensions the

district court so generously granted Easley in order to

provide her with an opportunity to complete her overdue

discovery, notwithstanding her counsel’s dilatory approach

to the litigation, this argument is disingenuous at best, and

borders on being frivolous. Furthermore, she and her

counsel fail to offer any logical and acceptable reason in explanation of why the only discovery not completed when the

court granted summary judgment—the conclusions of her’s

and the defendants’ expert witnesses—was even relevant or

necessary to her response to the defendants’ motions. Thus,

we are at a loss to understand why she needed further

discovery before filing her response.

We do not agree with Easley that her case is analogous to

those she relies on in her brief, Farmer v. Brennan, 81 F.3d

1444 (7th Cir. 1996) and First Chicago International v.
10 No. 03-1421

United Exchange Co., 836 F.2d 1375 (D.C. Cir. 1988). In

each of the factual situations she refers to, the trial courts’

grant of summary judgment was improper because, at the

time of the granting of the summary judgment motion, the

litigants were awaiting responses to outstanding discovery

requests from reluctant defendants who were withholding

facts necessary for the litigants to oppose summary judgment. Farmer, 81 F.3d at 1450-51; First Chi. Int’l, 836 F.2d at

1381; see also Harrods Ltd. v. Sixty Internet Domain Names,

302 F.3d 214, 243-47 (4th Cir. 2002). The examples that she

relies upon are far afield and certainly not analogous to the

situation before us. The defendants before us were forthcoming and responsive to all of Easley’s discovery requests;

indeed, it was Easley and her counsel, for reasons unexplained, who did not follow the discovery schedule and failed

to disclose her experts in a timely fashion. Additionally, never

once did Easley, not even in her Rule 60(b) motion, explain to

the court why she needed expert testimony to reply to the

defendants’ motions. If the conclusions of her expert were

necessary to respond to the motions, she had every opportunity to file an affidavit with the court under Fed. R. Civ. P.

56(f) detailing and explaining why she needed the additional

discovery. Grayson v. O’Neill, 308 F.3d 808, 815 (7th Cir.

2002); Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058

n.5 (7th Cir. 2000); accord Cacevic v. City of Hazel Park, 226

F.3d 483, 488-89 (6th Cir. 2000); Roark v. City of Hazen, 189

F.3d 758, 762 (8th Cir. 1999); Lorenzo v. Griffith, 12 F.3d 23,

27 n.5 (3d Cir. 1993); Kendall v. Hoover Co., 751 F.2d 171,

175 (6th Cir. 1984). Her two requests for extensions of time to

disclose her expert, without more, were insufficient to “serve[ ]

as the functional equivalent of an affidavit” under Rule 56(f),

First Chi. Int’l, 836 F.2d at 1380, and alert the district court

that summary judgment may have been premature. See,

e.g., Cacevic, 226 F.3d at 488-89.

We hold that the trial judge properly exercised his discretion when he denied Easley’s Rule 60(b) motion and de-
No. 03-1421 11

5 Easley’s alternate request for relief, under Rule 60(b)(6)’s catchall

provision, for “any other reason justifying relief from the operation

of the judgment,” is unavailable when attorney negligence is at

issue. See Helm v. Resolution Trust Corp., 84 F.3d 874, 879 (7th

Cir. 1996). Thus we do not address this argument.

6 We note with disapproval the lackadaisical and questionable

conduct of Easley’s attorney in this case. The Model Rules of

Professional Responsibility require an attorney to “act with reasonable diligence and promptness in representing a client.” Model

Rules of Prof’l Conduct R. 1.3 (2002). Easley’s attorney’s conduct

fell vastly short of meeting his required level of professional responsibility in this case. But Easley cannot employ her attorney’s

unprofessional conduct as a mechanism for reopening her cause

of action against the defendants. “If a party’s lawyer is guilty of

professional malpractice . . . the party has a remedy against him,

but it should not be permitted to shift the burden of its agent’s

neglect to the district court and the defendants.” Tango Music,

348 F.3d at 247.

clined to vacate his grant of summary judgment in favor of

the defendants.5

 The trial judge was entitled to expect Easley

and her counsel to comply with his clear and straightforward pretrial scheduling orders and filing deadlines, and

when compliance was not forthcoming, the trial judge was

empowered to end the litigation by ruling on the merits of

the defendants’ unopposed motions for summary judgment.

We refuse to tie the trial judge’s hands and take away one

of the tools necessary to enforce his scheduling orders and

organize his trial calendars. It is regrettable that Easley,

either through her own or her attorney’s negligence, or perhaps a combination of both, may very well have missed an

opportunity to pursue what may possibly have been a meritorious cause of action (we express no opinion as to the merits

of her claim). However, “[c]lients must be held accountable

for the acts and omissions of their attorneys.”6 Pioneer Inv.

Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 396

(1993); see also Tango Music, 348 F.3d at 247 (“If the

lawyer’s neglect protected the client from ill consequences,
12 No. 03-1421

neglect would become all too common. It would be a free

good.” (quoting United States v. 8136 S. Dobson St., 125

F.3d 1076, 1084 (7th Cir. 1997))). Therefore, the decision of

the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-30-04