Carol A. Beeson & Dora M. Shepherd v. Levi Smith, 893 F.2d 930 (7th Cir. 1990). · Go Syfert
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Carol A. Beeson & Dora M. Shepherd v. Levi Smith, 893 F.2d 930 (7th Cir. 1990). Cases Citing This Book View Copy Cite
22 citation events (2 in the last 25 years) across 6 distinct courts.
Strongest positive: Jeremy Felthoff v. Alex Sliger (innd, 2025-10-02) · Strongest negative: Speck v. United States (uscfc, 1993-03-30)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited "but see" Speck v. United States
Fed. Cl. · 1993 · signal: but see · confidence high
But see Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990) (dismissal with prejudice for failure to prosecute was abuse of discretion, the more appropriate remedy being sanctions against the attorney).
cited Cited as authority (rule) Jeremy Felthoff v. Alex Sliger
N.D. Ind. · 2025 · confidence medium
Beeson v. Smith, 893 F.2d 930, 931 (7th Cir. 1990).
cited Cited as authority (rule) Cole Watkins v. Social Coaching - Credit Repair LLC
N.D. Ind. · 2025 · confidence medium
Beeson v. Smith, 893 F.2d 930, 931 (7th Cir. 1990).
discussed Cited as authority (rule) Bankr. L. Rep. P 77,252 Kovilic Construction Co., Inc. v. Damir Missbrenner
7th Cir. · 1997 · confidence medium
See,, e.g., Barnhill v. United States, 11 F.3d 1360, 1370 (7th Cir.1993) (attorney’s initial nonresponsiveness to inquiries of court did not justify sanction of dismissal); English, 969 F.2d at 473 (attorneys failed to pay fines imposed on court, but dismissal for this noncompliance may have been inappropriate because attorneys may have been financially unable to pay the fines); Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990) (attorney’s questionable tactics during a settlement conference and failure to appear at a status hearing did not warrant the sanction of dismissal).
discussed Cited as authority (rule) Philips Medical Systems International B v. V. Martin E. Bruetman
7th Cir. · 1994 · confidence medium
The standards are explicitly merged in Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990), and Anchorage Associates v. Virgin Island Bd. of Tax Review, 922 F.2d 168 , 177 (3d Cir.1990), although Buck v. Dept. of Agriculture, 960 F.2d 603, 607 (6th Cir.1992), suggests a qualification: since a default judgment tends to be entered earlier in a litigation than a dismissal for want of prosecution, particular care must be taken that the judge does not, in the former ease, jump the gun.
discussed Cited as authority (rule) Mark A. Ball v. City of Chicago and Alfred S. Schultz, Individually and as Agent of the City of Chicago
7th Cir. · 1993 · confidence medium
Webber v. Eye Corp., 721 F.2d 1067 , 1069 n. 2 (7th Cir.1983) (per curiam); Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990); Schwarz v. United States, 384 F.2d 833, 836 (2d Cir.1967); Poulis v. State Farm Fire & Casualty Ins.
cited Cited as authority (rule) John L. Talbert v. Michael v. Neal, Warden, Danville Correctional Center and Sue O'neill, Health Care Administrator
7th Cir. · 1992 · confidence medium
Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990); Olive Can Co, Inc. v. Martin; 906 F.2d 1147, 1152 (7th Cir.1990).
discussed Cited as authority (rule) Cain v. Lane
7th Cir. · 1990 · confidence medium
While district court's are not prevented from dismissing actions for failure to prosecute after they have been remanded from this court, we are more critical of a dismissal for want of prosecution where "a substantial case on the merits is demonstrated." Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990).
discussed Cited as authority (rule) Patterson v. Brady
S.D. Ind. · 1990 · confidence medium
For instance, in the failure to prosecute setting, the Seventh Circuit has recently held that a party should not be held to suffer where the default was the result of “inadequate and inattentive representation by counsel.” Beeson v. Smith, 893 F.2d 930, 931 (7th Cir.1990).
discussed Cited as authority (rule) Lowe v. City of East Chicago, Indiana
7th Cir. · 1990 · confidence medium
Beeson v. Smith, 893 F.2d 930, 932 (7th Cir.1990); Herring v. City of Whitehall, 804 F.2d 464, 467 (8th Cir.1986) (reversing a district court's dismissal because there was no sign of client fault). 19 There is no history of "contumacious conduct" in this case, since there is only one instance of noncompliance with a discovery order of the court which was quickly corrected by King and which may not have even delayed the case.
cited Cited as authority (rule) Lowe v. City of East Chicago
7th Cir. · 1990 · confidence medium
Beeson v. Smith, 893 F.2d 930, 932 (7th Cir.1990); Herring v. City of Whitehall, 804 F.2d 464, 467 (8th Cir.1986) (reversing a district court’s dismissal because there was no sign of client fault).
discussed Cited "see, e.g." Tom Koulouris v. Hymen P. Chalmers, Andy Nanos, and Electronics, Missles & Communications, Incorporated
7th Cir. · 1991 · signal: see also · confidence low
The court noted that "[t]he single failure on the part of plaintiff's counsel to attend a status conference, without more, does not satisfy the threshold showing of delay, contumacious conduct, or failed prior sanctions to deny the plaintiff an opportunity to have his case decided on the merits." 908 F.2d at 163 ; See also, Lowe v. City of East Chicago, 897 F.2d 272, 274-75 (7th Cir.1990) (Unless there is a clear record of delay or contumacious conduct or unless less drastic sanctions have proven unavailing, the policy favoring determination of cases on their merits outweighs the district cour…
Retrieving the full opinion text from the archive…
Carol A. BEESON and Dora M. Shepherd, Plaintiffs-Appellants,
v.
Levi SMITH, Defendant-Appellee
89-1545.
Court of Appeals for the Seventh Circuit.
Jan 26, 1990.
893 F.2d 930
Stephen J. McMullen (argued), Harvey L. Walner & Associates, Robert Habib (argued), Chicago, Ill., for plaintiffs-appellants., David Santori, Chicago, Ill., Bryon L. Matten, Oak Brook, Ill., for defendant-ap-pellee.
Coffey, Dumbauld, Ripple.
Cited by 15 opinions  |  Published
DUMBAULD, Senior District Judge.

Appellants Carol A. Beeson and Dora M. Shepherd, residents of Mississippi and Tennessee, respectively [1] , appeal the District[*931] Court’s denial of their motion to vacate a default. They were passengers involved in a collision in Illinois with a vehicle driven by appellee Smith. While recognizing that in principle such a motion is discretionary, we reverse and find “abuse of discretion” in accordance with the practice of reviewing courts to avoid the drastic consequence to clients of denial of their day in court, when a more appropriate remedy would have been sanctions against their attorney for his desultory and offhand handling of their case.

The basic principle that a District Court has inherent discretionary power “of ancient origin ... at common law” to dismiss a case for failure to prosecute diligently was set forth by Justice Harlan in Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962). [2]

Nevertheless we have reversed refusals to vacate default judgments where the neglect does not amount to wilfulness and a substantial case on the merits is demonstrated. Passarella v. Hilton International Co., 810 F.2d 674, 675-76 (7th Cir. 1987); Schilling v. Walworth County, 805 F.2d 272, 274-75 (7th Cir.1986).

We turn to a consideration of the course of events and the action taken by Judge Duff which we conclude was unnecessarily drastic and foreclosed appellants’ opportunity to litigate the merits of their claim for damages for personal injuries.

We note that plaintiffs did travel to Chicago where their depositions were taken and filed on March 14, 1989. They were also examined by defendant’s physician. Defendant’s deposition and that of the driv-. er of the pickup truck in which plaintiffs were traveling were also taken. [3] In plaintiffs’ motion of February 13, 1989, to vacate default, plaintiffs were ready for trial.

We are satisfied that the appellants have an arguably meritorious claim appropriate for resolution by the trier of fact. Judge Duff noted for the record [4] that plaintiffs’ attorney at a settlement conference said the plaintiffs had had broken legs but the file contradicted this assertion; and that the lawyer had never talked with his clients but put forward a demand of $300,000 when the specials were only $4,000. These circumstances certainly demonstrate questionable representation by counsel, but do not negate the possibility of damages in some amount [5] upon proof as to liability. [6]

Other significant indicia of inadequate and inattentive representation by counsel are the facts that on December 2, 1988, plaintiffs’ attorney failed to appear for status call, and the case was dismissed. This default was vacated on January 10, 1989.

Appellants’ attorney again failed to appear on February 13,1989. The cause was again dismissed for want of prosecution, with prejudice. Ten days later appellants’ attorney again moved to vacate the dismissal. He sought to put the blame for his non-appearance on February 13, 1989, upon his secretary, who mistakenly supposed that Lincoln’s Birthday was being celebrated on that date in Federal as well as State court. Hence the case was not listed on the firm’s call sheet for that date (although numerous other cases for other attorneys in the firm were).

But the attorney’s own affidavit shows that “the 2/13/89 Status date" was docketed “in my docket book” [Italics supplied] so that her failure to list it “on the Law Firm’s Attorney Call sheet” was no excuse for his own inattention.

[*932] On February 23, 1989, Judge Duff denied appellants’ motion to vacate the second dismissal, [7] and the instant appeal ensued.

In view of the foregoing, it does not seem as if the appellants themselves engaged in any sophisticated contumacious scheme to delay the course of justice. Their counsel rather was responsible for handling the progress of their case, and should be held responsible, by sanctions, if deemed appropriate, for the repeated mishandling which the record reveals. The judgment of the District Court is therefore reversed, and the cause remanded for further proceedings. Rule 36 shall be applicable.

Reversed and Remanded.

1

. The complaint alleges both plaintiffs were residents of Mississippi, but Shepherd’s deposition gives her residence as Tennessee.

2

. Where warranted by the facts, it is clear that clients are bound on agency principles by their attorney’s actions or inaction. Ibid.., at 633-34, 82 S.Ct. at 1390-91.

3

. These depositions were not docketed on appeal. Appellants’ depositions contain no evidence regarding negligence of either driver.

4

. Transcript of February 13, 1989, p. 4.

5

. Damages for loss of earnings would not be substantial, as both appellants (as shown by their depositions) were unemployed at the time of the collision They were then enroute to a carnival where they expected to obtain temporary employment. They both did sustain injuries requiring hospitalization and possibly resulting in impairment of future earning power.

6

. See note 3, supra.

7

. Transcript of February 23, 1989, pp. 4-5.