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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2004 Decided November 30, 2004
No. 04-7006
KERRY FOX, ET AL.,
APPELLANTS
v.
AMERICAN AIRLINES, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv02069)
Joel D. Joseph argued the cause for the appellants.
Ronald G. DeWald argued the cause for the appellee.
Before: SENTELLE, HENDERSON and ROBERTS, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Kerry Fox, his
two sisters, Susan Fox and Janice Sterling, and a niece,
Deirdre Ford–Aikin (appellants), appeal the district court’s
grant of American Airlines’s motion to dismiss their amended
complaint seeking damages and injunctive relief resulting
from the airline’s treatment of them during Kerry Fox’s in-
flight medical emergency and afterwards. They likewise
appeal the district court’s denial of their motion to vacate its
judgment dismissing their suit. Because the district court
acted within its discretion in both instances, we affirm.
I.
In November 2001, the appellants boarded an American
Airlines, Inc. (American) flight at Baltimore/Washington In-
ternational Airport destined for Laredo, Texas.1 During the
flight Kerry Fox (Kerry), a diabetic, lapsed into severe insulin
shock and, when his sisters’ efforts to revive him proved
unsuccessful, the plane made an emergency landing in Nash-
ville, Tennessee. The appellants allege that, during Kerry’s
episode, the flight attendants offered him no medical assis-
tance. They further allege that the entire emergency could
have been avoided had American employees granted their
request either to allow a family member to be seated near
Kerry on the plane or to have the flight attendants monitor
his condition in-flight.
Kerry was revived by emergency personnel on the ground
in Nashville and, after being treated at a hospital, he was
deemed fit to travel on to Laredo. The appellants did not
complete the remainder of their journey, however, without
experiencing further difficulties. They allege that, because of
Kerry’s medical emergency, they were searched ‘‘thoroughly’’
before boarding flights from Nashville to Dallas–Ft. Worth
and from Dallas on to Laredo. Joint Appendix (J.A.) 23,
¶¶ 28–29. The trip home was ‘‘another nightmare.’’ J.A. 23,
1 This factual account is derived from the second amended
complaint. See Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001) (in
reviewing grant of motion to dismiss, court ‘‘treat[s] the complaint’s
factual allegations as true’’).
3
¶ 30. They allege that American again targeted them for
thorough searches as a result of the earlier emergency, that
an American employee refused to board them on their Dallas
to Baltimore flight because they again requested that a family
member sit near Kerry and that, as a consequence, they were
forced to take a later flight home.
On October 23, 2002, the appellants filed a four-count
complaint against American, alleging: (I) gross negligence,
(II) intentional infliction of emotional distress, (III) breach of
contract and (IV) violations of the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12101 et seq. and accompanying
federal regulations. On November 19, 2002, American filed a
motion to dismiss the complaint, arguing, among other things,
that the appellants’ allegations implicated the Air Carrier
Access Act (ACAA), 49 U.S.C. §§ 41705 et seq., not the ADA.
On November 21, 2002, the district court issued its ‘‘Standing
Order’’ apprising the parties of their obligation to comply
with local and federal rules of procedure, including Local
Rule 7.2 On December 2, 2002, the appellants took Ameri-
can’s cue and amended their complaint to allege violations of
the ACAA instead of the ADA. They also filed an opposition
to American’s motion to dismiss.
On December 6, 2003, American moved to dismiss the
amended complaint but this time the appellants did not
respond. Instead, on January 14, 2003, they filed a joint
meet and confer statement and proposed scheduling order,
which repeatedly referenced a pending ‘‘motion to dismiss.’’
J.A. 3. On August 5, 2003, the district court granted Ameri-
can’s motion to dismiss the amended complaint.
Relying on Local Rule 7(b) of the Rules of the United
States District Court for the District of Columbia, see D.D.C.
LOCAL RULE 7(b), the district court explained that ‘‘because
the plaintiffs failed to respond to the defendant’s second
motion, the court treats the motion as conceded and grants
the motion.’’ Mem. Op., Granting Motion to Dismiss Amend-
ed Complaint, at 4, reprinted in J.A. 12. Having dismissed
2 See Judge Urbina’s Standing Order for Civil Cases, Nov. 21,
2002, at 6.
4
the amended complaint under Local Rule 7(b), the district
court then noted that the appellants’ opposition to American’s
motion to dismiss the original complaint did challenge Ameri-
can’s contention that count IV failed to state a claim under
the ADA. The district court concluded, however, that even if
it treated the appellants’ opposition as an opposition to Amer-
ican’s motion to dismiss the amended complaint, it would
nonetheless grant that motion with respect to count IV under
Rule 12(b)(6) of the Federal Rules of Civil Procedure
(FRCP). As the district court saw it, ‘‘because the defen-
dant’s argument that the ACAA does not create a private
right of action is substantively correct, even if the court were
to treat the plaintiffs’ opposition to the defendant’s first
motion as an opposition to the defendant’s second motion, the
court’s decision to grant the defendant’s motion to dismiss
Count IV would remain the same.’’ J.A. 16.
The appellants subsequently moved under FRCP Rule
59(e) to vacate the district court’s judgment, asserting two
grounds. They claimed that the court’s judgment should be
vacated, first, because their counsel failed to receive electron-
ic notice of American’s second motion to dismiss and, second,
because their amended complaint alleged a claim under the
ACAA, which American was estopped from contesting. The
district court concluded that neither argument required the
court to vacate its judgment to prevent ‘‘manifest injustice,’’
Mem. Op., Denying Motion to Alter or Amend Judgment, at
5, reprinted in J.A. 5, and consequently, denied the motion.
As to the appellants’ first contention, the district court
concluded that, despite their counsel’s claimed ignorance, he
should have known that a second motion lay pending. That
the court uses an electronic filing system that automatically
sends the parties e-mail notices when documents are filed, the
district court explained, did not relieve counsel of his indepen-
dent obligation to monitor the court’s docket. And had he
checked the docket, the court pointed out, he would have
discovered the motion. The court further noted that, on
January 15, 2003, counsel had filed a joint meet and confer
statement and proposed scheduling order, which referred to a
pending motion to dismiss. ‘‘[H]ad [plaintiffs’ counsel]
5
checked the docket when filing the joint statement,’’ the court
observed, ‘‘he would have noticed that the defendant had filed
a motion to dismiss the amended complaint approximately
five and a half weeks earlier.’’ J.A. 6. Moreover, said the
district court, counsel should have realized that the pending
motion he referenced in his statement related to the amended
complaint, especially given that he should have been expect-
ing an answer to it.
As to their second argument, the district court concluded
that it did not constitute a proper basis to amend the judg-
ment as it essentially recycled ‘‘claims that the court has
already rejected.’’ J.A. 7. The appellants then appealed
both orders to us.
II.
The appellants seek reversal of the district court’s dismiss-
al of their amended complaint for failing to comply with Local
Rule 7(b). Local Rule 7(b)—as did its predecessor, Local
Rule 108(b)—provides:
Within 11 days of the date of service or at such
other time as the Court may direct, an opposing
party shall serve and file a memorandum of points
and authorities in opposition to the motion. If such a
memorandum is not filed within the prescribed time,
the Court may treat the motion as conceded.
D.D.C. LOCAL RULE 7(b). The Rule is a docket-management
tool that facilitates efficient and effective resolution of mo-
tions by requiring the prompt joining of issues, see FDIC v.
Bender, 127 F.3d 58, 67 (D.C. Cir. 1997); cf. Jackson v.
Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d
145, 150 (D.C. Cir. 1996) (‘‘[Local] Rule 108(h) assists the
district court to maintain docket control and to decide mo-
tions for summary judgment efficiently and effectively.’’), and
we review the district court’s application of 7(b) for abuse of
discretion. See Bender, 127 F.3d at 67.
In defending their failure to comply with Local Rule 7(b),
the appellants offer nothing but an updated version of the
6
classic ‘‘my dog ate my homework’’ line. They claim that, as
the result of a malfunction in the district court’s CM/ECF
electronic case filing system, their counsel never received an
e-mail notifying him of American’s motion to dismiss their
amended complaint. Imperfect technology may make a bet-
ter scapegoat than the family dog in today’s world, but not so
here. Their counsel’s effort at explanation, even taken at
face value, is plainly unacceptable. Regardless whether he
received the e-mail notice, he remained obligated to monitor
the court’s docket. See United States ex rel. McAllan v. City
of New York, 248 F.3d 48, 53 (2d Cir. 2001) (‘‘[P]arties have
an obligation to monitor the docket sheet to inform them-
selves of the entry of ordersTTTT’’), cert. denied, 535 U.S. 929
(2002); cf. Norgaard v. DePuy Orthopaedics, Inc., 121 F.3d
1074, 1075 (7th Cir. 1997) (ignorance of other court’s docket
‘‘is nothing but negligence, which does not justify untimely
action’’). Indeed, one would think that, at the very least, his
failure to receive a timely answer to the amended complaint
would have aroused his suspicion, thus prompting him to
check the court’s docket for any recent filings. See FED. R.
CIV. P. 15(a) (‘‘A party shall plead in response to an amended
pleading within the time remaining for response to the origi-
nal pleading or within 10 days after service of the amended
pleading, whichever period may be the longer, unless the
court otherwise orders.’’). Accordingly, it is difficult to un-
derstand how counsel did not recognize that the ‘‘pending’’
motion to dismiss he repeatedly referenced in the joint meet
and confer statement and proposed scheduling order—filed
more than one month after American filed its second motion
to dismiss—related to the amended complaint. In dismissing
the appellants’ suit, the district court held that ‘‘because the
plaintiffs failed to respond to the defendant’s second motion,
the court treats the motion as conceded and grants the
motion.’’ Mem. Op., Granting Motion to Dismiss Amended
Complaint, at 4, reprinted in J.A. 12. This court has yet to
deem such a straightforward application of Local Rule 7(b) an
abuse of discretion and, based on the above, we see no reason
for doing so here. See Bender, 127 F.3d at 67–68.
7
Last term we held that, before dismissing a bankruptcy
appeal under Rule 8001 of the Federal Rules of Bankruptcy
Procedure3 and Local Bankruptcy Rule 8009–1,4 the district
court must typically ‘‘consider[ ] the circumstances before [it]
and explain[ ] why it is in the interest of justice to dismiss
rather than to proceed to the merits.’’ English–Speaking
Union v. Johnson, 353 F.3d 1013, 1022 (D.C. Cir. 2004)
(hereinafter ESU). So that the district court’s inquiry is an
informed one, we also insisted that the appellant be notified
and given an opportunity to be heard. Id. at 1022. We
reasoned that ‘‘[t]his approach’’—which mirrors our own for
evaluating whether to accept late-filed briefs—‘‘not only prop-
erly calibrates the importance of deciding cases on the merits
and preserving district courts’ authority to control their dock-
ets, but also ensures that this court is able to exercise its
highly deferential review.’’ Id.
Our holding in ESU, however, did not purport to extend
beyond ‘‘dismissals of bankruptcy appeals for nonjurisdiction-
al procedural violations,’’ see id. at 1021, and with good
reason. A district court reviewing a bankruptcy appeal has a
‘‘completed’’ record before it and thus the procedure we
outlined in ESU tends to strike a proper balance between the
‘‘ ‘strong presumption in favor of adjudications on the mer-
3 Bankruptcy Rule 8001 provides in pertinent part: ‘‘An appel-
lant’s failure to take any step other than timely filing a notice of
appeal does not affect the validity of the appeal, but is ground only
for such action as the district court or bankruptcy appellate panel
deems appropriate, which may include dismissal of the appeal.’’
FED. R. BANKR. P. 8001(a).
4 Local Rule 8009–1 provides:
If, after an appeal has been noted and the appellant has
complied with Bankruptcy Rule 8006, the appellant fails to
serve and file a brief within the time required by Bank-
ruptcy Rule 8009, the District Court may, upon motion of
the appellee filed in the office of the Clerk of the District
Court, or upon its own order, dismiss the appeal for failure
to comply with Bankruptcy Rule 8009.
D.D.C. LOCAL BANKR. RULE 8009–1.
8
its,’ ’’ id. at 1021 (quoting Shepherd v. Am. Broad Cos., 62
F.3d 1469, 1475 (D.C. Cir. 1995)), and the need for the district
court to have at its disposal ‘‘powerful tools to manage [its]
docket[ ], prevent undue delay, and sanction those who abuse
the system,’’ ESU, 353 F.3d at 1021 (citing Link v. Wabash
R.R. Co., 370 U.S. 626, 629–30 (1962); Shea v. Donohoe
Constr. Co., 795 F.2d 1071, 1074 (D.C. Cir. 1986)). We
reconcile these competing interests differently in the trial
setting where the district court may well have before it
multiple opposed motions—‘‘any and all’’ of which are subject
to Local Rule 7(b). Bender, 127 F.3d at 67. Requiring it to
provide notice, an opportunity to explain and weigh alterna-
tives before enforcing Rule 7(b) would hinder effective docket
management. See ESU, 353 F.3d at 1021 (‘‘Strictly enforcing
procedural rules ensures both that cases are adjudicated
efficiently and that litigants argue their causes on a level
playing field.’’); see also Bender, 127 F.3d at 67. According-
ly, as we have often observed, ‘‘[w]here the district court
relies on the absence of a response as a basis for treating the
motion as conceded, we honor its enforcement of the rule.’’
Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 577
(D.C. Cir. 1997); see also Bender, 127 F.3d at 68; Geller v.
Randi, 40 F.3d 1300, 1304–05 (D.C. Cir. 1994). We do so
again here.
The appellants also attempt to revive count IV of their
complaint, first, by invoking non-mutual offensive collateral
estoppel (a.k.a. issue preclusion) to assert that American is
barred from denying the existence of an implied right of
action under the ACAA and, second, by arguing that, in any
event, such an implied right does exist. The district court’s
view that count IV’s allegations failed to state a claim,
however, constitutes dictum. It discussed the issue only to
observe that, had the appellants not conceded American’s
second motion to dismiss by failing to respond timely, it
would have nonetheless dismissed count IV under FRCP
Rule 12(b)(6).
Finally, the appellants question the district court’s denial of
their FRCP Rule 59(e) motion but do not argue the point.
9
They allege in their Statement of Issues that the district
court erred in denying their motion but elaborate no further.
Such a conclusory assertion typically does not warrant re-
view. See, e.g., Wash. Legal Clinic for the Homeless v.
Barry, 107 F.3d 32, 39 (D.C. Cir. 1997) (issue not properly
raised where addressed in ‘‘cursory fashion’’ supported only
with ‘‘bare-bones arguments’’ (internal quotation marks omit-
ted)). In any event, we think the district court did not abuse
its discretion in denying the motion. See Ciralsky v. CIA,
355 F.3d 661, 668, 671 (D.C. Cir. 2004).
‘‘A Rule 59(e) motion is discretionary and need not be
granted unless the district court finds that there is an inter-
vening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.’’ Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996) (per curiam) (internal quotation marks
omitted); accord Ciralsky, 355 F.3d at 671. We can hardly
say that the district court abused its discretion in declining to
vacate its judgment of dismissal to prevent ‘‘manifest injus-
tice’’ flowing from the appellants’ failure to receive notice
given that, as discussed above, the dismissal of their suit
might have been avoided through the exercise of due dili-
gence. See Ciralsky, 355 F.3d at 673 (‘‘We also cannot find
that the district court abused its discretion in concluding that
manifest injustice does not exist where, as here, a party could
have easily avoided the outcomeTTTT’’ (internal quotation
marks and brackets omitted)). Nor do we find any abuse of
discretion in the district court’s refusal to vacate its judgment
based on their allegedly valid ACAA claim as this argument
was available to them earlier. See id. Cf. Kattan by Thomas
v. Dist. of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993)
(‘‘Ordinarily Rule 59 motions TTT are not granted by the
District Court where they are used by a losing party to
request the trial judge to reopen proceedings in order to
consider a new defensive theory which could have been raised
during the original proceedings.’’).
10
* * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.