Green et al v. Scurto Cement Construction et al

Filing 46

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/20/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RONALD GREEN SR., et al.,
Plaintiffs,
v.
SCURTO CEMENT CONSTRUCTION,
LTD., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No.

10 C 4562

MEMORANDUM OPINION AND ORDER
There is nothing inherently troubling about a client’s
rejection of his, her or its lawyer’s recommendations--for
example, a lawyer’s recommendation to a plaintiff client to
accept a proposed settlement.

After all, it is the plaintiff and

not the lawyer who will be at risk if the case goes forward and
plaintiff loses.

Moreover, the risk also extends to the cost to

the client of further work by the lawyer--both fees and expenses.
Those dynamics change, though, when the client has been
provided with legal representation pro bono publico, as under
this District Court’s trial bar program that mandates a lawyer’s
acceptance of appointed representation for an in forma pauperis
client.

In that instance an ill-considered belief on the

client’s part that he or she knows better than the reasoned
professional judgment of the lawyer thrusts an unfair burden on
the appointed counsel who (1) has worked on the case and has
obtained the prospect of what the lawyer evaluates as a
reasonable and wholly acceptable defense offer based on a risk-

reward analysis but (2) if the offer is rejected, will be
required to go forward with the active pursuit of the client’s
claim on his or her own dime (not that of the client).
Just so here.

After this Court issued a self-explanatory

May 26, 2011 memorandum, settlement discussions ensued with the
active guidance of Magistrate Judge Susan Cox.

Judge Cox

ultimately worked out a mutually acceptable settlement as between
plaintiffs Ronald and Donald Green (collectively “Greens”) and
defendant Scurto Cement Construction, Ltd.

But when those same

discussions also eventuated in proposals from codefendant Union
Local 11, Area 161 (“Union”) that appointed counsel advised
Greens to accept, they rejected that recommendation.

Here are

the relevant excerpts from appointed counsel Joshua Karmel’s
motion for relief from appointment that he has noticed up for
presentment on June 23:
6. Additionally, during the May 18, 2011
conference, Plaintiffs were presented with options for
relief from the Union. Although Mr. Karmel has advised
Plaintiffs to accept these options, they believe the
litigation should take another course.
7. At this point, Mr. Karmel feels there is a
substantial disagreement between himself and
Plaintiffs, with Mr. Karmel recommending the solution
proposed at the May 18, 2011 settlement conference and
Plaintiffs demanding a “full-press’ litigation,
including extensive written discovery and multiple
depositions.
8. Further, Mr. Karmel is faced with a June 24,
2011 deadline to respond to the Union’s Motion To
Dismiss.

2

9. Mr. Karmel is a sole practitioner, with
another lawyer assisting him in an Of Counsel capacity,
with a current case load of approximately fifty (50)
Workers’ Compensation files and eighteen (18) civil
litigation files, at various stages of litigation. Put
simply, Mr. Karmel has an extreme professional burden
and lacks the time necessary to adequately represent
Plaintiffs and respond to the Union’s motion.
10. Mr. Karmel will continue to represent
Plaintiffs through the process of exchanging the
paperwork and settlement drafts with Scurto.
This Court expects to respond to the motion by attorney
Karmel by relieving him of the responsibility for further
representation of the Greens.

In the type of situation he has

described (and particularly when appointed counsel and the client
have reached an impasse in the pro bono publico representation
context), this Court will never hold an unwilling client hostage
to the lawyer or an unwilling lawyer hostage to the client.
Nor, under the circumstances of this case, will this Court
consider the appointment of new counsel from the trial bar to
represent the Greens.

It has reviewed Union’s motion and has

found it to be indisputably well-grounded in fact and law in one
respect and more than colorable in the other.

What follows is an

analysis of the Greens’ total position vis-a-vis Union in this
litigation.
As for Greens’ claims of race discrimination advanced under
Title VII, there is no question that they brought this lawsuit
after expiration of the 90-day time limit that kicked in after
EEOC’s right-to-sue letter.

This Court had spotted that problem
3

from the very outset--its July 26, 2010 memorandum order
(“Order I”), issued sua sponte just four days after Greens filed
suit, identified that threshold problem, and its August 12, 2010
memorandum order (“Order II”) explained why Greens’ response had
not really countered the problem of the lawsuit’s untimeliness.
Union’s motion to dismiss, filed back in February 2011 but
deferred while the settlement efforts before Magistrate Judge Cox
were in the works, identified the same flaw spoken of in Orders I
and II--its supporting Mem. 3-5 is unanswerable.

On that score,

the Memorandum points in part to our Court of Appeals’
unpublished order in Simmons v. Ill. Dep’t of Mental Health and
Developmental Disabilities, No. 95-1547, 1996 WL 19262 (7th Cir.
Jan. 18).

Although Simmons is nonciteable as precedent pursuant

to Seventh Cir. App. R. 32.1(d), the factual situation dealt with
there is so strikingly parallel to that posed here, and its
reasoning is so cogent, that it carries great persuasiveness by
parity of reasoning.

In sum, Greens’ Title VII claims against

Union are indeed dismissed.1
As for Greens’ asserted claims under 42 U.S.C. §1981
(“Section 1981”), Union’s Mem. 9 states correctly that any claims

1

Union’s Mem. 5-9 also sets out a number of other
substantive legal problems with Greens’ Title VII claims.
Although at least some of the arguments advanced by Union’
counsel clearly have legal merit as independent bases for
dismissal, there is no need to address them because the claims’
untimeliness alone is a fatal flaw.
4

based on alleged acts that occurred before July 22, 2006 are
barred under the four-year limitation period applicable to such
claims (see Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 269
(7th Cir. 2004), relying on Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369 (2004)).2
As to any portion of Green’s putative Section 1981 claims
that is not thus outlawed by limitations, a somewhat more complex
situation is presented.

There Union’s Mem. 10 seeks to bring any

such claim down by pointing to EEOC v. Pipefitters Ass’n, Local
597, 334 F.3d 656, 658 (7th Cir. 2003) and to a number of the
nontiming problems with Greens’ Title VII claims as a basis for
dismissal.

That contention may or may not ultimately be

successful--the answer will come much more easily when the
existing Complaint is cleaned up to eliminate the now-dispatched
matters.
Accordingly Union’s motion is also granted as to the Section
1981 claims, but Greens are granted leave to tender a proposed
Amended Complaint that must be whittled down to remove what has
been held in this opinion to constitute chaff, thereby limiting
the case to what figuratively constitutes arguably healthy
Section 1981 wheat.

This Court anticipates that the timetable

for any such amended pleading can be discussed at the June 23

2

As reflected earlier, Greens filed their Complaint on
July 22, 2010.
5

presentment date of attorney Karmel’s motion.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

June 20, 2011

6