In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1222
KRISTIN K. MOFFITT,
Plaintiff-Appellant,
v.
ILLINOIS STATE BOARD OF EDUCATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 96 C 3067--Richard Mills, Judge.
Argued January 13, 2000--Decided January 9, 2001
Before BAUER, POSNER, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Pursuant to Fed. R. Civ. P.
41(b), the district court dismissed this
employment discrimination case with prejudice
after the plaintiff, who was hospitalized for
drug and alcohol addiction, failed to appear for
trial and her attorney announced that she was not
prepared to go forward in her client’s absence.
Moffitt v. Illinois State Bd. of Educ., 184
F.R.D. 298 (C.D. Ill. 1999). The plaintiff
appeals, contending that the district court
abused its discretion in dismissing the case
rather than granting her the continuance she
requested./1 We affirm the dismissal of the
case, because the plaintiff’s counsel not only
declined to present any evidence when the case
was called for trial, but also failed to make a
record as to why the case could not proceed in
the plaintiff’s absence.
I.
Kristin Moffitt began work for the Illinois
State Board of Education (the "Board") in 1990 as
a confidential clerk in its personnel department.
In 1992, she assumed additional responsibilities
that allegedly warranted an upgrade in her job
classification to that of a confidential
secretary, the next highest level of
responsibility and pay. In July 1992, Moffitt
requested the "desk audit" that was a
prerequisite to a classification upgrade. In
November 1992, one month after Moffitt informed
the Board that she was pregnant, the Board denied
her request for a desk audit.
Moffitt was on maternity leave from late
February through mid-July of 1993. While she was
on leave, the Board reassigned the additional
duties that Moffitt had been handling to a new
confidential secretary position. Moffitt
interviewed for the new position, but the Board
hired someone else to fill it. Consequently, when
Moffitt returned from maternity leave, the added
responsibilities that might have warranted an
upgrade in her classification had been taken away
from her position. In or around March of 1994,
Moffitt transferred to a different department of
the Board. She resigned from the Board’s employ
in July of 1994.
In March of 1996, Moffitt filed suit against
the Board under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. sec. 2000e, alleging that the
Board discriminated against her on the basis of
her pregnancy when it chose not to promote her to
the new position for a confidential secretary
that had been created, in part, to handle some of
the responsibilities she had been given prior to
taking maternity leave. The Board answered the
complaint two months later, and discovery
commenced. On October 11, 1996, the district
court entered an order giving the parties a year
in which to complete their discovery. R. 7. After
an extension of the discovery deadline, as well
as the entry of an order granting Moffitt’s
motion to compel the production of certain
documents that the Board regarded as
confidential, discovery concluded at the end of
January 1998.
The court conducted a final pre-trial conference
on March 31, 1998, at which time the parties
submitted their proposed pre-trial order. The
court entered that order on the same day. The
witness list that Moffitt included in that order
identified more than 80 witnesses that she might
call to testify and a total of 129 exhibits. R.
33, Exs. B, D.
Nearly nine months later, on December 29, 1998,
the court set the case for trial. Jury selection
was scheduled to take place before the magistrate
judge beginning January 20, 1999, with the trial
to commence on January 26 before the district
judge.
On January 14, 1999, Moffitt filed the first of
several motions to continue the trial date. R.
43. In that motion, Moffitt’s counsel indicated
that she was unable to contact her client.
Attached to the motion was the affidavit of
Moffitt’s mother, Darlene Hutchins, with whom
Moffitt and her two small children resided. R. 43
Ex. A. Hutchins indicated that Moffitt had left
home in Hutchins’ car on January 1 and, as of
January 14, had not returned. Hutchins averred
that Moffitt had contacted her on January 7 and
indicated that she was being held against her
will; since that time, Hutchins had not heard
from Moffitt. On January 8, Hutchins’ car had
been located by the Springfield police, occupied
by two individuals whom Hutchins did not know.
Hutchins believed that her daughter had been the
victim of foul play, and had enlisted the aid of
authorities in an effort to locate her.
On January 19, the district court denied the
motion, believing that it would be "premature to
continue the jury trial at this time." R. 45 at
2. "There is no evidence from law enforcement
officers nor credible evidence from anywhere else
to suggest that the Plaintiff is in fact a victim
of foul play." Id.
On January 19, the same date that the court
denied Moffitt’s initial continuance motion,
Moffitt filed a first supplemental motion to
continue the trial. R. 46. In that motion,
Moffitt’s attorney indicated that her client had
contacted her that day and informed her that she
was hospitalized in Bloomington, Illinois and
would remain so through the week of January 26.
"Due to the foregoing," Moffitt’s counsel stated,
"Plaintiff has been unable to assist in the
preparation of her case for trial and will be
unable to attend the trial . . . ." Id. at 1. The
district court denied this motion on the day it
was filed. See id.
On January 20, when jury selection was to
begin, Moffitt’s counsel appeared before
Magistrate Judge Evans and orally requested a
continuance on the basis that Moffitt had been
admitted into a drug and alcohol treatment
program. Hutchins was present and testified in
support of the motion. See R. 63. Hutchins
indicated that after a two-week absence, her
daughter had returned home several days earlier
in a "very ill" state. Id. at 11. Hutchins had
taken her daughter to a hospital in Bloomington
on the previous day seeking treatment for her
drug and alcohol addiction./2 The Bloomington
hospital had been unable to admit Moffitt and
instead, after assessing Moffitt, had sent her to
an affiliated drug treatment program at a
hospital in Peoria. Moffitt had voluntarily
admitted herself to the Peoria hospital and,
according to Hutchins, would be there for the
next 18 to 21 days. Hutchins and Moffitt’s
counsel also indicated that Moffitt had been
unaware, until the previous day, that her case
had been scheduled for trial in January, although
her attorney had previously sent her
correspondence notifying her of the trial date.
According to Hutchins, Moffitt did not read her
mail and "does not deal with anything." R. 63 at
18. Moffitt’s attorney added that she had spoken
with Moffitt on the previous day and that "she
was not lucid." Id. at 17. "She is not herself at
all. . . . She doesn’t make sense when she tells
you something. She is just not-- there is just
something very wrong." Id. at 17-18. The defense
opposed the continuance and asked that judgment
be entered in the Board’s favor. Judge Evans
noted that he had been designated solely to
handle jury selection, and he decided to proceed
with that task. Id. at 21-22, 27-28. The jury was
selected and empaneled later that same day.
On January 22, Moffitt filed a second
supplemental motion to continue the trial date.
R. 48. In that motion, Moffitt’s counsel
indicated that Moffitt would remain hospitalized
for the next 21 days, that she had been unable to
assist her attorney in preparation for the trial,
that she would be "irreparably damaged" if her
attorney were forced to proceed with the trial in
her absence (id. at 2 para. 7), and that her
hospitalization was necessary in order to return
her to a condition in which she could participate
in and assist with her trial. Attached to the
motion was a letter from a physician at the
hospital in Peoria confirming that Moffitt had
been admitted to the hospital’s addiction
recovery center and that she was anticipated to
remain there for 21 days. R. 48 Ex. A. He added,
however, that "if Ms. Moffitt is making
substantial progress in treatment, she may be
discharged earlier to a less[e]r level of care."
Id.
The district court denied the motion on January
25 with a written order. R. 53. Citing our
opinion in Schneider Nat’l Carriers, Inc. v.
Carr, 903 F.2d 1154, 1158-59 (7th Cir. 1990), the
court noted that (1) Moffitt had voluntarily made
herself unavailable for the trial by checking
herself into a drug treatment program; (2) based
on Ms. Hutchins’ testimony before Magistrate
Judge Evans, it appeared that Moffitt had been
suffering from drug and/or alcohol addiction for
at least several months prior to the trial, and
there was no indication that Moffitt was any more
sick on the day that she admitted herself for
treatment than she had been several weeks
earlier, when the court set the trial date; (3)
Moffitt had not shown that she was wholly unable
to attend the trial; (4) Moffitt’s counsel had
had ample time to prepare for the trial, and, had
she kept herself better informed as to her
client’s status and medical condition, she could
have notified the court of her client’s need for
treatment sooner than she did. Id. at 6-7.
"Continuing the trial at this late stage would
waste many hours and financial resources of the
parties, the jurors, and the judiciary," the
court concluded. Id. at 7-8.
On the same date that Judge Mills denied
Moffitt’s second supplemental motion to continue
the trial, the Board filed a motion to dismiss
the case for want of prosecution pursuant to Rule
41(b). R. 51, 52. Judge Mills denied the motion
that same day. See R. 51.
On the following day, January 26, Judge Mills
called the case for trial. See R. 64. Moffitt was
absent. Moffitt’s counsel was present, and she
orally asked the court to reconsider its refusal
to postpone the trial. She argued that Moffitt’s
condition constituted a recognized disability for
purposes of the Americans with Disabilities Act,
42 U.S.C. sec. 12101, et seq., and the Family and
Medical Leave Act, 29 U.S.C. sec. 2601, et seq.,
and that the court, although obviously not her
employer, ought to accommodate her condition by
continuing the trial date. R. 64 at 7. Hutchins
was also present, and she testified in support of
the motion. Hutchins indicated that Moffitt’s
condition had deteriorated over the previous year
to the point where "[h]er ability to take care of
herself is completely gone and she cannot take
care of her children." Id. at 10. (Hutchins had
placed Moffitt’s children in day care since
August of 1998.) Hutchins confirmed that Moffitt
had been gone for two weeks at the beginning of
January and that after she returned home, she had
helped Moffitt check herself into a drug and
alcohol rehabilitation program. Clarifying her
previous testimony, Hutchins indicated that
Moffitt had never before been hospitalized for
drug and alcohol addiction, although she had been
hospitalized the previous August for psychiatric
observation. According to Hutchins, Moffitt would
be in the hospital for three weeks, followed by
a period of outpatient treatment. Finally,
Hutchins indicated that Moffitt had not been
opening, let alone responding to, any of her
mail. In further support of the motion to
reconsider, Moffitt’s counsel presented to the
court a second, brief letter from Moffitt’s
physician, which indicated that Moffitt had been
diagnosed as suffering from cocaine dependence,
alcohol dependence, and a depressive disorder. R.
54, Ex. 1. "At this time," her physician wrote,
"our recommendation is for Ms. Moffitt to
continue in treatment to address her disease of
addiction." Id.
After considering this evidence, Judge Mills
orally denied the motion to reconsider. Among
other things, he noted that neither of the
letters from Moffitt’s physician disclosed
whether Moffitt might be able to leave the
treatment program during the day in order to
attend the trial. He went on to emphasize that
Moffitt’s counsel had had more than two years to
prepare for the trial and that nearly a week had
passed since the jury was selected. The judge
therefore ordered Moffitt’s counsel to proceed
with the trial. R. 64 at 22-25.
At this point, Moffitt’s counsel indicated that
she was not prepared to go forward. Id. at 25.
When asked why she could not proceed with
witnesses other than Moffitt herself, her counsel
answered, "Because this is an employment
discrimination case. My client is the key
witness. She’s the only one . . . that can
testify to matters alleged in the complaint." Id.
The court subsequently ascertained that the
parties had taken some ten depositions in the
case, including the plaintiff’s. The court
indicated that Moffitt’s attorney could have
proceeded by calling other witnesses, by
introducing the plaintiff’s deposition into
evidence, and by using the interrogatories and
other exhibits that were already present in the
case file. Id. at 29. The court therefore granted
the Board’s orally renewed motion to dismiss the
case pursuant to Rule 41. Id. at 30-31.
Several weeks later, the court issued a
detailed order amplifying on the grounds for
dismissing the case. R. 62. Among other things,
Judge Mills emphasized that Moffitt’s counsel had
not made any effort to proceed with the trial in
the plaintiff’s absence:
She could have easily called one of her other
witnesses and let her client testify at a later
date. Moreover, she could have read her client’s
deposition into the record if necessary. Despite
these alternatives, counsel stated that she
absolutely could not proceed without her client
being present in the courtroom. As a matter of
fact, she brought with her no other witnesses,
nor exhibits. The record does not reflect that
counsel even attempted to subpoena her witnesses.
. . .
R. 62 at 12-13 (footnote omitted). Moffitt
herself, in the court’s view, "[b]y her
misfeasance and nonfeasance," had shown no
interest in moving forward with the trial. Id. at
13. She had not read the mail from her attorney
informing her of the trial date, she had not
given timely notice to her attorney or the court
of her illness and her desire to seek treatment,
and apparently she had "voluntarily made herself
unavailable by checking into a drug treatment
program." Id. at 14 (emphasis in original).
Moffitt had also failed to submit credible
evidence that she was physically unable to attend
her trial. Id.; see also id. at 15. Finally, the
court noted that once Moffitt’s pre-trial motions
for a continuance had been denied and the jury
was empaneled, Moffitt and her counsel should
have expected that the case would be dismissed if
they did not proceed with the trial. Id. at 17-
18. Under those circumstances, the court
concluded, "[n]ot dismissing the suit and
granting a continuance of this action would be
penalizing the wrong party, mainly, the
taxpayers, as well as the Defendant who came
ready for trial." Id. at 18.
II.
Moffitt contends on appeal that the district
court erred when it refused her request for a
continuance and dismissed her case for want of
prosecution pursuant to Rule 41(b). This is not
a case, Moffitt argues, in which there was a
record of delay or contumacious conduct on the
part of the plaintiff. Discovery had concluded,
all pre-trial matters had been resolved, and the
case had been ready for trial for nine months.
But when the trial date arrived, she was
hospitalized for drug and alcohol rehabilitation.
As a result, she could neither be present for the
trial nor assist her counsel in the prosecution
of her lawsuit. The right thing for the court to
have done, in Moffitt’s view, was to grant her a
short continuance; this would have enabled her to
complete her rehabilitation without undue
prejudice to the Board. When the court refused
that request, Moffitt asserts, the court placed
her counsel in the untenable position of putting
on a case without an essential witness (Moffitt
herself). To then dismiss the case when her
counsel announced that she could not proceed in
her client’s absence was an unreasonably harsh
measure that effectively penalized Moffitt for a
recognized disability.
Our review of the district court’s decision not
to grant Moffitt a continuance, and to dismiss
the case for want of prosecution is, of course,
deferential. Ball v. City of Chicago, 2 F.3d 752,
755 (7th Cir. 1993). We ask not what we ourselves
might have done, but whether the district judge
abused his discretion in deciding to act as he
did. See, e.g., Esposito v. Piatrowski, 223 F.3d
497, 499 (7th Cir. 2000) (Rule 41(b) dismissal);
United States v. Cruz-Velasco, 224 F.3d 654, 666-
67 (7th Cir. 2000) (denial of continuance). So
long as the district judge’s analysis was not
tainted by a legal error or the failure to
consider an essential factor, see Kruger v.
Apfel, 214 F.3d 784, 786 (7th Cir. 2000) (per
curiam), we will reverse only if no reasonable
person could concur in the district judge’s
decision or, put another way, only if the
decision strikes us as fundamentally wrong, In re
Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.
1995) (per curiam).
Several points deserve making at the outset.
First, we agree with Moffitt that there is no
real record of delay or contumacious behavior on
her part in this case. See, e.g., Kruger, 214
F.3d at 787, quoting Dunphy v. McKee, 134 F.3d
1297, 1299 (7th Cir. 1998). Nor is it a case in
which sanctions less severe than dismissal had
already proven ineffective as a means of
preventing further noncompliance with the court’s
orders. See, e.g., 3 Penny Theater Corp. v. Plitt
Theatres, Inc., 812 F.3d 337, 339 (7th Cir. 1987);
but see also Ball, 2 F.3d at 756 ("[t]he judge is
not required to impose graduated sanctions . . .
before dismissing a case for failure to
prosecute"). Nor had the court expressly warned
Moffitt that it would dismiss the case for want
of prosecution if she was not prepared to go
forward on the scheduled trial date. See id. at
755 ("there should be an explicit warning in
every case"). On the other hand, what the court
confronted in this case was the plaintiff’s
unwillingness to proceed on the date scheduled
for trial, as opposed to the more typical failure
to comply with her discovery obligations on time,
or to meet some other pre-trial deadline. As
Judge Mills recognized, "’it is not unreasonable
to treat a failure to attend trial more severely
than a failure to comply with discovery orders in
a timely fashion.’" R. 62 at 17, quoting Johnson
v. Kamminga, 34 F.3d 466, 469 (7th Cir. 1994),
cert. denied, 514 U.S. 1023, 115 S. Ct. 1373
(1995); see also Owen v. Wangerin, 985 F.2d 312,
317 (7th Cir. 1993) (cases are typically dismissed
for failure to prosecute "when the plaintiff is
not ready for trial or fails to appear"); Knoll
v. AT&T, 176 F.3d 359, 364-65 (6th Cir. 1999)
(collecting cases); 9 Charles A. Wright & Arthur
R. Miller, Federal Practice and Procedure sec. 2370, at
367-71 & nn. 33-34 (1995). One naturally expects
the plaintiff to be present and ready to put on
her case when the day of trial arrives. A
litigant’s day in court is the culmination of a
lawsuit, and trial dates--particularly civil
trial dates--are an increasingly precious
commodity in our nation’s courts. And here, of
course, there could be little doubt that the
district court was expecting the plaintiff and
her counsel to proceed on the scheduled trial
date, notwithstanding the plaintiff’s personal
situation. In the fortnight immediately preceding
the trial date, the court had twice issued
written orders denying Moffitt’s multiple
requests for a postponement (R. 45, R. 53), and
a jury had already been empaneled. See Bluestein
& Co., 68 F.3d at 1026 (prior warnings not
required in extreme cases when counsel should
have expected his actions to result in
dismissal); Ball, 2 F.3d at 756 ("[r]eversal is
not warranted if . . . it is plain that the
plaintiff’s lawyer knew that he faced dismissal
of his case"). Of course, this is not a case in
which the plaintiff or her counsel simply failed
to show up. Although the record is lacking in
some of the details, there is no dispute that
Moffitt was in fact hospitalized in a treatment
program when the case was called for trial. The
specific question we must answer, then, is
whether the court was required to delay the trial
under these circumstances, or whether it was
within the district court’s discretion to insist
that plaintiff’s counsel proceed with the trial
even in the plaintiff’s absence.
Our opinion in Schneider Nat’l Carriers, Inc.
v. Carr, 903 F.2d 1154, on which Judge Mills
relied in part (see R. 53), is a useful starting
point. Carr, the defendant and counter-plaintiff
in that case, had sustained injuries in a highway
collision. Approximately five weeks before the
scheduled trial date, Carr sought a continuance,
stating that he intended to enter a medical
treatment program to deal with psychological and
behavioral problems stemming from the injuries he
had suffered in the collision nearly two years
earlier. After the district court refused him a
postponement, Carr renewed his request,
supporting it the second time around with a copy
of his proposed treatment plan and letters from
his doctors indicating that he should enter
treatment as soon as possible. Again the court
denied the motion, and the trial went forward as
scheduled. Carr did not appear, and his attorney
did not introduce his deposition into evidence.
After hearing conflicting testimony about who was
responsible for the accident, the jury found
against Carr. Carr appealed, arguing that the
district court had abused its discretion in
refusing to continue the trial date once informed
that Carr would be unavailable.
We found no abuse of discretion in the court’s
decision to proceed in Carr’s absence. 903 F.2d
at 1158-59. We noted that "Carr was no sicker on
the day he finally entered [the treatment
program] than he was at the time the trial date
was originally set." Id. at 1158. In fact, the
record indicated that his physicians had urged
Carr to obtain treatment "early on" but that he
had refused; and "[t]here was no sudden change of
medical circumstances that required him to rush
into treatment." Id. Moreover, Carr had presented
no evidence that his treatment in fact precluded
him from participating in the trial--by attending
court during the day, for example, and returning
to the treatment facility in the evening. Id. We
also rejected Carr’s argument that by conducting
the trial without him, the district court had
prevented him from giving his own testimony. In
pertinent part, we noted that Carr "[did] not
explain why his counsel failed to introduce the
transcript of his deposition testimony into
evidence, or why deposition testimony would not
have been adequate . . . ." Id. (We went on to
point out that because Carr had no memory of the
accident, his testimony would not have affected
the outcome of the trial in any event. Id.)
Although Schneider Nat’l Carriers guides our
decision today, the circumstances we confront in
this case are different in one significant
respect deserving of mention. As the district
court pointed out, Hutchins’ testimony confirms
that Moffitt had been suffering from an addiction
to drugs and/or alcohol for a good while before
she finally checked into a rehabilitation
program. R. 53 at 6-7; see R. 64 at 10-13. Even
so, we do not think that Moffitt can be faulted
for finally seeking treatment on the eve of
trial. By her mother’s account (which is not
disputed), Moffitt had an extremely serious
problem: she was "completely out of control" (R.
64 at 10), she had lost the ability to take care
of herself or her children (id. at 10-11), and
she "[did] not deal with anything" (R. 63 at 18).
Although the details of her disappearance in
early January remain cloudy, clearly some sort of
a crisis had spurred her decision to seek
treatment: her whereabouts had been unknown to
her mother for two weeks, her mother’s car had
turned up in the possession of strangers, and
Moffitt had eventually returned home in a "very
ill" state (R. 63 at 11, 12-13). According to her
lawyer, she was not even lucid. R. 63 at 17. Her
doctor’s second letter confirms that she was
suffering from drug and alcohol addition as well
as a depressive disorder. R. 54, Ex. 1.
This is a far cry from Schneider, in which the
record revealed no immediate need to begin a
course of treatment that had already been
postponed for some time. Whatever details we lack
about Moffitt’s condition, she clearly had a
serious addiction problem that required
treatment. No doubt it would have been more
convenient for all concerned had Moffitt embarked
on a course of treatment sooner than she did.
But, in the absence of any evidence that Moffitt
in some way manipulated events in order to put
the trial off, we emphatically reject the
suggestion that Moffitt "chose" to make herself
unavailable for trial by seeking out treatment
for her addiction when she did and that, having
suffered from addiction for a number of months,
immediate treatment was unnecessary. The notion
that Moffitt could or should have continued on a
destructive course of drug and alcohol abuse
until the trial was over is unseemly. That said,
two aspects of our rationale in Schneider are
pertinent here.
First, although the record leaves no real doubt
that Moffitt’s condition required treatment, it
leaves unanswered a number of important questions
vis e vis Moffitt’s ability to testify in support
of her own case or to otherwise attend and
participate in the trial. Although it seems clear
from Hutchins’ testimony that the treatment
program in which Moffitt had enrolled herself was
an in-patient program, we know little more about
the nature of the program and its impact upon her
ability to participate in the trial. We do not
know, for example, whether the program would have
permitted Moffitt to absent herself, if only for
a few hours, in order to testify in court. We do
not know whether it would have been feasible for
Moffitt to have submitted to a video-taped,
evidentiary deposition at the treatment facility
rather than leave the facility to testify. We do
not know whether her lawyer would have been
permitted to consult with her by telephone or in
person. Moffitt was one week into her three-week
course of treatment when the trial was scheduled
to begin. We do not know what her condition was
at that time, and so we do not even know whether
she was physically or mentally able to testify or
to consult with her lawyer, assuming it was
otherwise possible logistically for her to do so.
We appreciate that Moffitt’s lawyer was faced
with an extraordinarily difficult situation. But
we are given no reason to believe that the
additional details necessary to assess the extent
of Moffitt’s unavailability could not have been
provided to the court. From the first, it was
clear that Judge Mills expected more detail as to
the necessity of postponing the trial date, and
his expectations were eminently reasonable. By
the time the trial was ready to commence, Moffitt
had been in treatment for a week. It should have
been possible by that time to supply the details
that are missing from this record. See United
States v. $94,000 in U.S. Currency, 2 F.3d 778,
787-88 (7th Cir. 1993).
Second, no record has been made as to why it
was not feasible for Moffitt’s attorney to
present her case even if Moffitt were unable to
testify. The final pretrial order in the case had
been on file for nine months. Twice on the day of
jury selection, Moffitt indicated that "we were
prepared to go to trial in November." R. 63 at 6,
20. We can readily appreciate that the unexpected
absence of the plaintiff posed an enormous
challenge to her counsel. But there were more
than 80 individuals identified as potential
witnesses for Moffitt in the pre-trial order, and
some 129 exhibits. The Board had taken Moffitt’s
deposition, which no doubt would have supplied
some, if not all of the information that Moffitt
would otherwise have offered in live testimony.
The district court was plainly ready to admit
that deposition into evidence. R. 64 at 29. No
doubt, Moffitt’s counsel would have had to
scramble to assemble a case that did not depend
on her client’s live testimony. But there was
time, even after Moffitt was admitted to the
treatment program--several days, even, after the
jury was picked--in which that effort could have
been made.
It may well have been true, as Moffitt
suggests, that there were points that could only
be established through additional testimony from
Moffitt herself. There may have been conflicts
between Moffitt’s account of events and those of
other witnesses, which would have required live
testimony from all witnesses, including Moffitt,
in order to permit the jury to make a credibility
assessment. But as Schneider makes clear, we will
not simply assume that it was impossible to go
forward in the plaintiff’s absence. By the time
the trial date arrived, the district court had
already denied several motions for a continuance,
noting in each of its two orders the absence of
evidence that Moffitt was truly unavailable. R.
45 at 2; R. 53 at 7. Against that backdrop, the
district court was fully within its rights to
expect that if indeed Moffitt could not appear
and/or assist her counsel in any manner, and if
her counsel truly could not proceed without
Moffitt, Moffitt’s attorney would make a concrete
showing that it was not feasible for her to
proceed when the case was called for trial. As
difficult as the situation was, there was time
enough for Moffitt’s counsel to demonstrate that
Moffitt’s presence was needed. But that case was
not made.
III.
Confronted with a record that does not
adequately establish the plaintiff’s
unavailability, and that likewise does not
document her attorney’s inability to proceed
without her, we conclude that the district court
did not abuse its discretion in dismissing this
case for want of prosecution pursuant to Fed. R.
Civ. P. 41(b). We appreciate that it would have
been quite difficult for the plaintiff and her
counsel to proceed given the plaintiff’s apparent
need to treat her dependence on narcotics and
alcohol. However, a court faced with an eleventh-
hour request to postpone a trial is entitled to
a more detailed showing than Moffitt and her
counsel supplied to the district court in this
case.
AFFIRMED
/1 Moffitt separately argues that the district court
abused its discretion when it refused to allow
her to amend her complaint to add a retaliation
claim. In view of our decision to affirm the
involuntary dismissal of her lawsuit, we need not
reach that question.
/2 Hutchins explained that Moffitt had already
sought treatment at two different programs in
Springfield in 1998, but without success.
Hutchins was also concerned that there were
individuals in Springfield who had threatened
Moffitt, had held her against her will, and who
previously had taken Moffitt’s car. For these
reasons, apparently, Moffitt and her mother had
sought out assistance in Bloomington rather than
Springfield. R. 63 at 11-13, 15.