Civil Procedure Keyed to Spencer
Olson v. Alick’s Drugs, Inc.
Donn Olson (Plaintiff) sued Alick’s Drugs, Inc. (Defendant) for discrimination in federal court in May 1998, alleging that Defendant fired him as a pharmacist due to a disability and his age. As the trial approached negotiations broke down. Plaintiff’s attorneys agreed to a settlement conference on November 12, 1999, without consulting him and Plaintiff did not attend due to work commitments. Plaintiff’s lawyers delayed in informing Defendant and the judge. Plaintiff’s attorneys moved to withdraw, which the judge granted. Defendant did not object to a requested continuance, but the court did not rule on the postponement, instead advising Plaintiff to attend the November 30 pretrial conference. Plaintiff was five minutes late to the conference due to a work emergency. Plaintiff tried to call Defendant’s attorney. Before Plaintiff’s arrival, the judge granted Defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure (FRCP) 16(f). The following day Plaintiff wrote a letter explaining his tardiness and absence from the earlier conference and moved to set aside the dismissal. Defendant treated Plaintiff’s motion as a FRCP 60(b) motion for relief from a judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” On that basis, the court denied the motion, finding that Plaintiff had not demonstrated “excusable neglect nor hope for better performance in the future,” partially based on the erroneous ground that the Defendant had opposed postponing the trial. Plaintiff appealed to the United States Court of Appeals for the Seventh Circuit.
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