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  FORREST GENE ENGLISH,
v. No. 92-4032 WILLIAM COWELL, et al.,
In this case, a union member seeks redress against expulsion from the union without due process. District Judge Richard Mills twice dismissed the action, first based on the statute of limitations, and later because the expulsion was not discipline covered by the Labor-Management Reporting and Disclosure Act ("LMRDA"), and, in any event, English's "obvious guilt" excused the union from providing him with due process. Both times, this Court reversed, making clear the second time that English had suffered "discipline" and that due process was required. On remand, Judge Mills ordered the parties to file motions for summary judgment. But without waiting for plaintiff to oppose defendants' motion, or to rebut their "new evidence" on which Judge Mills rested his decision, Judge Mills dismissed the action on two new procedural grounds -- plaintiff's alleged failure to sue in his proper name, and his failure to add an allegedly indispensable party. This brief explains why that decision was in error; it also asks the Court to invoke Circuit Rule 36 and direct that the case be assigned to a different trial judge on remand. 1. Did the court below improperly grant the defendants' motion for summmary judgment, based on evidence presented with that motion, without giving plaintiff an opportunity to present opposing evidence and argument? 2. Should Circuit Rule 36 be invoked to instruct the district court to assign a new district judge on remand? The district court had jurisdiction under 28 U.S.C. § 1331 and 1337, and 29 U.S.C. § 412. The district court granted defendants' motion for summary judgment on November 25, 1992, and the appeal was noticed on December 11, 1992. The Court has jurisdiction under 28 U.S.C. § 1291. Until December 27, 1983, plaintiff-appellant Forrest Gene English was a member of defendant Local 46 of the International Association of Bridge, Structural and Ornamental Iron Workers. Beginning in the late 1970's, English brought a series of pro se claims against the union and several union officers, alleging a variety of violations of the LMRDA. The allegations included refusals to disclose certain union books and records under section 201(c) of the Act, dues increases imposed in violation of section 101(a)(3) of the Act, infringements of the free speech rights guaranteed by section 101(a)(2) of the Act, and expenditures of funds in violation of the fiduciary obligations imposed by section 501 of the Act.(1) In 1979, English was convicted of a felony, and he entered prison to serve his sentence. Nevertheless, he continued to tender his membership dues to defendants, who continued to accept them. On December 14, 1983, English filed another suit against defendants, No. 83-3383 (C.D. Ill.). By letter of December 27, 1983, addressed to "Forrest English," (a copy is in the Short Appendix ("SA") at 7), defendant-appellee Local 46, by its President, defendant-appellee William J. Cowell, and its Business Agent and Financial Secretary-Treasurer, defendant-appellee Donald Siddens, purported to take notice of English's conviction and prison term for the first time. "In view of this," they told English that his union membership "has been terminated effective immediately," and instructed him not to continue to pay his union dues. Before sending English this letter, the union gave him no notice of an impending termination of his membership. (Except where otherwise indicated, we refer to all defendants-appellees jointly as "the union."). The union gave English no reason why his conviction and prison sentence were a sufficient justification for expulsion from the union; it gave him no time to prepare any defense to its charges; and it afforded him no hearing before the "termination" was effectuated. Plaintiff then brought this action to contest his expulsion as a violation of the due process requirements of the LMRDA, 29 U.S.C. § 101(a)(5). The amended complaint alleged not only due process violations, but a conspiracy among various officers of the Local and International unions to rid themselves of English. The union answered the complaint, but raised no defense based on either failure to join an indispensable party or failure to sue in a proper name. All of the claims were then consolidated as Case No. 84-3299, and dismissed based on the six-month limitations period that this Court had held was applicable to section 101 of the LMRDA. Vallone v. Teamsters Local 705, 755 F.2d 520 (7th Cir. 1985). Plaintiff appealed, and this Court ultimately vacated the dismissal of the expulsion claim and the dues claims after the Supreme Court rejected the six-month limitations period in Reed v. UTU, 488 U.S. 319 (1989). On remand, the court below dismissed the action in its entirety. 751 F. Supp. 1343 (C.D. Ill. 1990). It relied on two separate grounds, neither of which had been advanced by the union; rather, each was raised by Judge Mills sua sponte, thus giving plaintiff no opportunity to address them. First, the court read the expulsion letter as suggesting that English's status as a convicted felon barred him from belonging to the union, which the court felt "would be consistent" with the requirement for admission to membership that a worker be "of good moral character and competent to demand standard union wages." Id. at 1348. The court then concluded that English's expulsion was not discipline at all, but rather an "objective reclassification" of his status. Id. at 1348. Second, the court held that, even if English's expulsion were discipline, his due process rights had not been violated because "§ 101(a)(5) requires only that the charging party produce some evidence to support its charges." Id. English, the court ruled, had received his due process during his criminal trial, and the fact of his conviction was more than enough evidence to support his expulsion from the union. Id.(2) Plaintiff then appealed, and undersigned counsel entered the case. This Court reversed, rejecting each and every one of the predicates on which the district court had based its conclusion that due process was not required before English was sent the December 27, 1983, letter terminating his membership. 969 F.2d 465, 469-472. Thus, the Court held that the termination was an act of discipline implicating section 101(a)(5) for two independent reasons: first, whether or not the union used the term "expulsion," that was its practical effect; and second, the action constituted "discipline" because it was undertaken under color of the union's right to control the member's conduct. Id. at 470. The Court further rejected the proposition that the union's action was an "objective reclassification" of English's status, to which due process protections did not apply, because the union action here did not simply alter his hiring priority, but rather ended his rights and privileges in the union altogether. Id. at 470-471. The Court also held that the need for the union to provide due process protections was not obviated by the fact that English had been convicted of a felony. Assuming that the conviction provided some evidence to support the expulsion, the Court declared that a court may consider whether a union's disciplinary process has met the "some evidence" standard only after the union has complied with "the mandatory procedural protections of section 101(a)(5)." Id. at 471. The Court noted that, in its disciplinary procedure, the union would presumably be able to consider English's conviction, id., but concluded, "We hold only that the local union in arriving at its decision must comply with the requirements of section 101(a)(5)." Id. at 472. In footnotes, the Court declined to rule on two alternate grounds for affirmance that had been raised by the union -- that English was not the plaintiff's "real" name, and that the International was an indispensable party because English had originally argued that there was a conspiracy between the International and the Local. The Court indicated that these matters could be raised on remand. Id. at 468 n.6. This decision was issued on July 29, 1992. On September 14, 1992, the court below issued an order directing the parties to file motions for summary judgment, including evidence on the question of damages, but did not set a deadline for filing these papers. On October 18, 1992, plaintiff agreed to terms under which undersigned counsel would represent plaintiff on his remaining claim. Meanwhile, on October 19, the trial court ordered the parties to file dispositive motions by October 28, 1992, seven business days after the Order was issued, and one day after the expiration of the time for the union to seek certiorari. Plaintiff requested a brief extension of time, explaining that he had just retained the undersigned counsel to continue the litigation in the court below. DE 247, ¶ 5. In his motion, he told the district court that, in his view, the question of liability had been virtually resolved by this Court's opinion, but that the union disagreed and had advised his counsel that it intended to file affidavits in support of its position. Id. ¶ 9. Plaintiff expressly reserved the right, depending on the nature of the union's arguments, to take discovery to pierce its affidavits. Id. The union did not object below that such discovery would be impermissible. After the extension of time was granted, plaintiff moved to have undersigned counsel admitted pro hac vice. On November 16, both sides served their opposing motions for summary judgment, each supported by affidavits. Plaintiff argued that this Court's ruling was dispositive on the question of whether due process was required before he could be expelled, and he submitted evidence that, in fact, due process was not afforded. The union argued, among other things, that it had been "ordered" to expel plaintiff without trial by the International, and that this made the International an indispensable party, as well as excusing the union's action on the merits. It also argued that English's real name was Guy Levine, and that it had been prejudiced by the maintenance of the suit in the name of English. To support these arguments, the union provided two affidavits, along with an inch-thick binder of exhibits. The union did not, however, argue that plaintiff's filings should not even be considered because his counsel had not yet been admitted pro hac vice. Under the Local Rules of the Central District of Illinois, Rule 2.9(B), plaintiff's opposition to the union's motion was due fourteen days after service, which, under Rule 6(d) of the Federal Rules of Civil Procedure, made plaintiff's opposition due on December 3, 1992. In preparing his response, undersigned counsel began to pull together evidence to rebut the evidence that the union had provided. In addition, in anticipation of filing an affidavit under Rule 56(f) of the Federal Rules of Civil Procedure, he sent a subpoena to the International, seeking to undercut both the contention that the expulsion had been "ordered" without trial, and that the International's constitution required it.(3) However, on November 25, 1992 -- nine days before plaintiff's opposition was due -- Judge Mills dismissed the action. SA 1-4. He gave two reasons for this order. First, he relied on evidence presented with the union's motion, which he thought established that plaintiff had legally changed his name to Guy Levine; in those circumstances, the burden was on the plaintiff to present proof of "overwhelming circumstances" authorizing the maintenance of the action anonymously. SA 2. Second, although acknowledging that the union had not previously explained why the International was an indispensable party, Judge Mills stated, "Defendants have now presented evidence to this Court that it was the international union who specifically directed the local union to expel the Plaintiff from the union." SA 3. Accordingly, Judge Mills opined, the Local was performing a "ministerial function" in expelling English, and it was the International against which English had a cause of action. SA 4. Therefore, the Judge concluded, it would be prejudicial to the remaining parties for the suit to proceed in the International's absence, and he dismissed the action. Id. On November 20, 1992, plaintiff's motion to permit his counsel to proceed pro hac vice had been denied; but Judge Mills did not indicate that this fact had any bearing on the reasons for the dismissal. A. The District Judge Was Required to Allow an Opportunity to Respond. This case was dismissed in response to a motion entitled "Motion to Dismiss and/or Motion for Summary Judgment." Because the motion and the dismissal were based on evidentiary submissions, the judgment dismissing the action must be treated as a summary judgment, and must be evaluated under the standards set forth in Rule 56 of the Federal Rules of Civil Procedure. Stickler Indus. Supply Corp. v. Blaw-Knox Co., 367 F.2d 744, 745 n.1 (7th Cir. 1966); Hill v. Trustees of Indiana Univ., 537 F.2d 248, 251 (7th Cir. 1976). Rule 56, in turn, forbids summary judgment unless the opposing party has at least ten days' notice and the opportunity to submit opposing arguments and evidence. Rule 56(c).(4) Granting summary judgment on issues on which the losing party has had no opportunity to respond is an error of law that requires reversal. E.g., Fountain v. Filson, 336 U.S. 681 (1949); Indiana Port Comm. v. Bethlehem Steel Corp., 702 F.2d 107, 111 (7th Cir. 1983) (court that "does not comply with the advance notice and response provisions of Rule 56(c) has no power to enter summary judgment"); Macklin v. Butler, 553 F.2d 525, 529-530 (7th Cir. 1977) ("the salutary purpose of summary judgment procedure . . . in no way authorizes disposition by surprise"); Tele-Communications of Key West v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). As this Court said Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir. 1982), a district court cannot properly act on a motion for summary judgment without giving the opposing party a reasonable opportunity to submit affidavits that contradict the affidavits submitted in support of the motion and demonstrate that there is a genuine issue of material fact that precludes granting the defendants summary judgment. Nor did the fact that the parties had cross-moved for summary judgment deprive plaintiff of his opportunity to respond to the union's motion and to their evidence. It is, again, black-letter law that the filing of a cross-motion by one party cannot make it easier for the opposing party to obtain summary judgment; nor does such a filing waive the right to contend that the opposing party's motion raises genuine issues of material fact. Zook v. Brown, 748 F.2d 1161, 1166 (7th Cir. 1984); Case & Co. v. Chicago Board of Trade, 523 F.2d 355, 360 (7th Cir. 1975). This is especially true when, as here, the union's motion was based on new issues different from those raised by plaintiff's motion. Prepo Corp. v. Pressure Can Corp., 234 F.2d 700, 702 (7th Cir. 1956). Indeed, in addressing the scheduling of the cross-motions that the district court had requested, English's counsel specifically told the Court that the union had indicated its plan to file affidavits in support of its position, and that plaintiff reserved the right to use discovery "to pierce its affidavits." DE 247, at 3 ¶ 9. B. Plaintiff Has Serious Arguments and Evidence in Opposition to the New Grounds for Dismissal That He Should Have Been Permitted to Present Before the District Judge Ruled. Lest the Court imagine that we are simply raising a hypertechnical procedural objection without a substantive basis, we wish to apprise the Court of some of the evidentiary and other matters that English would have raised had Judge Mills been open to considering his arguments. We first address the issue of the indispensability of the International as a defendant, and then the question of the name in which the case was filed. 1. The Indispensable Party Issue. Judge Mills agreed with the union that the International was an indispensable party because, he found, it had shown that "it was the international union who specifically directed the local union to expel the Plaintiff." English does not agree that this is true, and even the evidence submitted by the Local does not prove the absence of a genuine issue in that regard. The union relied exclusively on an affidavit of defendant Siddens, which asserted that the Local had received from the International a letter "instructing" the Local to send a particular piece of correspondence to English. Both the letter from the International, and the form of a letter to be sent to English said to have been enclosed therewith, were attached to the affidavit, along with the actual letter sent by the Local to English. SA 5-7. This evidence, however, raises more questions than it answers. First, the letter from the International to the Local does not "instruct" the Local to send anything to English; rather, it encloses a "recommended letter for you to send to Forrest English." SA 5. Obviously, if the International simply suggested a course of action to the Local, and the Local voluntarily took this advice, the Local cannot argue for indispensability based on an "only following orders" defense. Moreover, the purported enclosure, SA 6, appears to have been prepared, not on the typewriter used by the International to prepare its letter to the Local, but rather on the same typewriter as the letter actually sent by the Local to English. SA 7. This comparison raises the question whether it was the Local, rather than the International, that created the letter that is set forth at SA 6. This issue, which should have been obvious on the face of the record before Judge Mills, was one of the issues that English planned to explore through discovery. See SA 10, ¶¶ 1-5. Another aspect of the "compulsion from the International" analysis on which the Local relied, and which Judge Mills may or may not have accepted, was its argument that the International's constitution compelled English's expulsion without trial. In order to explore this allegation, English sought discovery from the International concerning the history, purpose, and previous applications and interpretations of each constitutional provision that the union invoked in the district court or, indeed, in the briefs before this Court on the previous appeal. SA 8-9, ¶ 3, SA 10 ¶ 6, SA 12 ¶ 13. English also sought discovery which, he believes, would have shown that the International did not take the position that mere conviction, incarceration, or lack of moral character of a member of a local union compels a local to expel the member (especially to expel him without trial). SA 8-9, ¶¶ 4-7, SA 11-12, ¶¶ 7-12 and 14 (the persons named in item 14 are officers of an Illinois Iron Workers local who were convicted of extortion and related offenses). The union argued in opposing summary reversal that the judgment should be affirmed on the ground that, because, in 1986, before this Court's first reversal, the court below stayed discovery, DE 130; thus, a remand would supposedly be futile because plaintiff will not be permitted to take any discovery in any event. In addition to the fact that some of the foregoing arguments are based on questions raised on the face of the existing record, there are several reasons why the union's alternate ground does not provide a basis for affirmance. First, we do not agree that the 1986 stay survived the two successive mandates from this Court reversing dismissal of the action. Second, it will remain for the district judge to exercise his discretion on remand in deciding whether particular discovery sought by plaintiff should be allowed, in the context of either a dispute under Rule 56(f) or objections to discovery. Here the union did not raise an indispensability defense in its answer, and although Rule 12(h)(2) provides that the defense is not waived by a failure to plead, that is surely a factor to be considered in deciding whether to allow discovery addressed to that issue once the issue is raised. We doubt that a district court would have discretion to permit a defendant to make new legal arguments, raise defenses not preserved in its answer, and file affidavits alleging a variety of facts not previously advanced, and then refuse to allow the plaintiff to cross-examine on the affidavits or discover other facts inconsistent with the new defense and new arguments. But that is a matter to be considered on remand. To the extent that the district court would have any discretion to refuse discovery in these circumstances, it would be particularly inappropriate for this Court to affirm on the basis of a prediction about how that discretion might be exercised. The union's indispensability argument below was based on a handful of district court decisions, mostly from the Eastern District of Pennsylvania, that hold that an international union is an indispensable party when a challenge to a union discipline depends on the proposition that a provision in the International's constitution, on which the expulsion was based, is unlawful. Had Judge Mills been willing to entertain English's arguments, English would have argued both that the rule of those cases does not apply to the facts here, and that those district court cases were wrongly decided. Thus, no provision in the International's constitution required English's expulsion without a trial, or required without exception that every person who has been convicted of an offense implicating moral turpitude, and/or who has been incarcerated, be expelled from the union. Indeed, even the International's letter to the Local does not mention any constitutional provision even permitting, let alone requiring, English's expulsion without trial. Nor, finally, would the district judge have been correct in concluding that the International's absence "would be prejudicial to the remaining parties in the case," even if the Local had acted pursuant to International instruction. After all, even when tortfeasors are jointly and severally liable, the plaintiff is permitted to pick and choose among them in deciding who to join as a defendant; if one defendant believes that other joint tortfeasors should be joined to ensure that the sued defendants do not bear the entire liability, they are free to implead the other tortfeasors under Rule 14. Such joinder is particularly common where the defendant claims that it was only a "passive" tortfeasor. Although this action has been filed under the LMRDA, the Supreme Court has looked to state tort law for analogies in interpreting that statute. E.g., Reed v. UTU, 488 U.S. 319 (1988). We have little doubt that, in deciding what relief is "appropriate" under section 102 of the LMRDA, 29 U.S.C. § 412, the district court could have allowed the Local to implead the International in order to share its liability, if the defendants believed that the International's presence was needed to protect their own interests. Having failed to do so, they were not free to complain that plaintiff failed to join the International. Indeed, their considerable delay in even raising this defense is another factor that the district court would have been required to consider in deciding whether non-joinder so prejudiced the defendants that it warranted dismissal. Advisory Committee Note to 1966 Amendment to Rule 19, penultimate paragraph of subdivision (b). Finally, it is quite common in the labor context for local unions to be held liable for disciplining their members based on an international constitution, even when the international has not been joined. The issue has frequently arisen when local unions discipline members who try to resign from the union in order to cross a picketline, in reliance on a constitutional provision that forbids such resignations. The National Labor Relations Board has held, and the courts have agreed, that such constitutional provisions are unlawful. Pattern Makers League v. NLRB, 473 U.S. 95 (1985). In such cases, the NLRB commonly brings a proceeding only against the local, and obtains both monetary relief (such as the cancellation of a fine) and equitable relief (such as an order directing the local to expunge the unlawful provision from all governing documents in its possession). E.g., Neufeld Porsche-Audi, 270 NLRB 1330, 1336, 116 LRRM 1257, 1262 (1984). See also Sheet Metal Workers Local 6 (Jacobs Heating), 286 NLRB 266, 130 LRRM 1020 (1987). These cases plainly demonstrate that it is quite possible to award effective relief in the absence of the International as a defendant; accordingly, dismissal under Rule 19 was not warranted. 2. The "Wrong Name" Issue. The ruling that plaintiff violated Rule 10(a) by bringing the case in the name "English" would similarly have been undercut had Judge Mills been willing to consider English's argument. Judge Mills found that the union had shown that English is not plaintiff's "true and correct legal name," SA 4, and held that plaintiff was not justified in proceeding anonymously when he filed his complaint pro se. Judge Mills then held that "the case should now be dismissed for his failure to [disclose his real name]." Although Judge Mills purported to exercise "discretion" in making this decision, he did not give any reasons, other than lack of justification for proceeding anonymously, for so deciding. Had English been allowed to address this issue, he could have made the following points. First, a Rule 10(a) violation "is merely a formal error and never should be viewed as a fatal defect." 5 Wright & Miller, Fed. Prac. & Proc.: Civil § 1321, at 730 and n.12 (2d ed. 1990) (emphasis added). When this Court indicated on the prior appeal that the lower court might consider the issue of English's proper name in its "sound discretion," 969 F.2d at 468 n.6, it did not provide Judge Mills with discretion to dismiss the action if he concluded that the plaintiff was not named "English." Second, insofar as Judge Mills seems to have rested on a technical ruling that plaintiff's "legal" name is "Levine", not "English," he erred by assuming that, once English filed a petition to change his name to Guy Levine, he was foreclosed from using the name "English" later in life, and by concluding that the union's proof thus established that the plaintiff's name was not "English." Quite to the contrary, under the common law (which is recognized both by Illinois and by the federal courts in this regard), a person may adopt a new name without resorting to the courts, e.g., United States v. McKay, 2 F.2d 257, 259 (D. Nev. 1924); Reinken v. Reinken, 351 Ill. 409, 184 N.E. 639, 640 (1933), see also United States v. Cox, 593 F.2d 46, 48 (6th Cir. 1979), and may even use his birth name again after having adopted a new name for a period of time. In re Liebowitz, 49 F. Supp. 953, 954 (N.D. Ill. 1943), aff'd sub nom. United States v. Schlotfeldt, 94 F.2d 263 (7th Cir. 1938); Thomas v. Thomas, 100 Ill. App. 3d 1080, 427 N.E.2d 1009, 1010 (1981). A party may properly effect legal process under any name so assumed. Presley v. Wilson, 125 S.W.2d 654 (Tex. Civ. App. 1939); 65 C.J.S. Names § 10, at 24 (1966); United States v. McKay, 2 F.2d 257, 259 (D. Nev. 1924). See also Christianson v. King County, 196 Fed. 791, 799 (W.D. Wash. 1912), aff'd other grounds, 203 Fed. 894 (9th Cir. 1913), aff'd, 239 U.S. 356 (1915). Indeed, a person who is known by two different names may use either name in legal process without affecting its validity, even if the name used is not his "true" name. 65 C.J.S. Names § 10, at 24 (1966); Hirschfeld v. United States, 54 F.2d 62, 63 (7th Cir. 1931).(5) Had he been given the opportunity, plaintiff could have established that he is commonly known as English; indeed, the record already before the Court helped to show that. English had conducted a number of lawsuits against the union under that name. His union membership was under the name "English." Indeed, the expulsion that is contested in this lawsuit was in the name "English." In short, whatever effect his name change petition may have had when first filed -- and apparently the Circuit Court of Sangamon County has no copy of the order that was entered on his petition -- both at the time he was expelled from the union, and at the current time, he was and is known by the name "English," and so the institution of the lawsuit in that name was entirely proper. Third, neither the union nor Judge Mills cited a single case that was dismissed because it was filed under an actual name that is later judged to have been incorrect. Rather, each ruling they cite -- and every case under Rule 10(a) that we have found -- involved the issue of whether a party is entitled to file an action anonymously, and what proof is necessary to offset the strong public interest in knowing who has filed a particular suit (and even then, most rulings cited by the union simply required the plaintiffs to disclose their real names; only one decision dismissed the complaint). Here there is no question of anonymity. Nobody has expressed any doubt about who it is that filed the lawsuit, whether he be called Forrest English, Guy Levine, or, as Judge Mills referred to the plaintiff in some orders, "Forrest English (a/k/a Guy S. Levine)." E.g., DE 192, at 1; DE 130, at 1; DE 114, at 1. If anything, the problem is that the union and Judge Mills feel that they have come to know English too well, not that they are uncertain who filed this lawsuit. Fourth, even assuming that the use of an invalid name is a defense to an action, it was omitted from the union's answers to the complaint, and thus was waived. The answers did not contend that the plaintiff had used the wrong name, or suggest that the action could be dismissed for that reason. Indeed, the Answer to the Amended Complaint, DE 74, conceded, at ¶ 12 (on the 20th unnumbered page), that the plaintiff was Forrest English. See also DE 99, at ¶ 12 (21st unnumbered page). The waiver principles set forth in Rule 12(h) of the Federal Rules of Civil Procedure apply generally to all affirmative defenses; such defenses must be pleaded or raised in a timely Rule 12(b) motion, or they are waived. 5A Wright & Miller, Fed. Prac. & Proc.: Civil § 1394, at 776. The defense to which the "wrong name" argument is most closely analogous is lack of capacity to sue, which is plainly waivable in this fashion. Id. at 778-779. Fifth, the union's filings do not establish the absence of any genuine issue that the failure to include the name "Levine" in the complaint, such as by an "a/k/a" reference, prejudiced the union. The union argues that, during a proceeding that it conducted in state court in order to enforce a sanctions order, English denied that a particular sanctions order pertained to him. But although the union's affidavit did recite that the district court had assessed sanctions against English, it did not attach the sanctions order itself to demonstrate that the particular order at issue in the state court proceeding was one that had been entered against English, as opposed to another plaintiff, Robert Owens, who had also sued the union. Had English had an opportunity to introduce counteraffidavits, he could have addressed this issue as well.(6) In summary, then, Judge Mills improperly dismissed this action based on the union's arguments and affidavits without giving English a fair opportunity to respond. The fact that Judge Mills may have thought that he was exercising "discretion" does not excuse his failure to accord English the right under Rule 56 to present evidence and argument about how his discretion ought to be exercised, and the judgment dismissing the action should be reversed. This is the third occasion on which the Court will have to reverse Judge Mills' treatment of Forrest English's claim that he was expelled from the union without due process. The first appeal was taken from an order entered by Judge Mills based on a limitations defense that seemed strong at the time he ruled, but that was subsequently rejected by the Supreme Court of the United States. Even though Judge Mills' reasons may have appeared sound at the time, this Court found it necessary to reprimand him for describing English's lawsuit as the "oldest rat in the barn." No. 87-2515, Order of November 29, 1988, at 4 n.5. The second appeal was taken from a grant of summary judgment based primarily on an analysis of the merits that had never been raised by the union -- the contention that English's expulsion was not covered by section 101(a)(5) and that, in any event, the due process provided by the State of Illinois in the criminal case excused the union from providing due process in its own expulsion. Because the union had not made the argument, plaintiff never had a chance to rebut it, and on appeal it became obvious that the analysis could not stand serious scrutiny. This appeal is similarly taken from Judge Mills' determination to resolve the case as quickly as possible, without giving English a fair opportunity to respond to arguments against him. The rule that an opponent of summary judgment must have a chance to respond is too well established to indulge the assumption that an impartial district judge would not have recognized it. Moreover, our exposition above of some of the points that we would have made had Judge Mills been willing to hear them, shows that the legal flaws in his ruling, and the existence of genuine issues about material facts, are so clear, even in the record already before him, that an inference of animus toward English is created. On a previous appeal, this Court indicated that Judge Mills' frustration with Mr. English was understandable, in light of the way in which the litigation had been conducted pro se. Our brief on the previous appeal acknowledged that problem. But that rationale no longer applies -- English is represented by counsel, and there have been no such problems since undersigned counsel assumed control of the case. Unfortunately, it appears that the frustration that built up in Judge Mills' mind over the previous conduct of the case continues to govern his disposition of the litigation. Those circumstances make it appropriate for the Court to exercise its discretion under Circuit Rule 36 to instruct the district court, on remand, to assign the action to a different judge, who has not accumulated a reservoir of grievances that appear to affect the handling of the case. Circuit Rule 36 and its predecessors have often been applied where a summary judgment is reversed, especially where the judge below either failed to allow an opportunity to respond, e.g., Indiana Port Comm. v. Bethlehem Steel Corp., 702 F.2d 107, 111 (7th Cir. 1983); Sanchez v. Edgar, 710 F.2d 1292, 1296 (7th Cir. 1983); Lavin v. Illinois H.S. Ass'n, 527 F.2d 58, 61 (7th Cir. 1975); see also Proimos v. Fair Automotive Repair, 808 F.2d 1273, 1278 (7th Cir. 1987), or abused his discretion. E.g., Schilling v. Walworth Cy. Park & Plan. Comm., 805 F.2d 272, 278 (7th Cir. 1986); Medeco Security Locks v. Swiderek, 680 F.2d 37, 39 (7th Cir. 1981); Vina v. Hub Elec. Co., 480 F.2d 1139, 1141 (7th Cir. 1973). It is also applied where the history of the case creates the possibility that the judge may have developed an impatience with the parties, or a mindset regarding the merits, that might affect the outcome of the case. Cange v. Stotler & Co., 913 F.2d 1204, 1208 (7th Cir. 1990); United States v. Carlone, 666 F.2d 1112, 1116 (7th Cir. 1981); see also J.F. Edwards Const. Co. v. Anderson Safeway, 542 F.2d 1318, 1326 (7th Cir. 1976) (denying motion to recuse but remanding under old Circuit Rule 18). The history of this case makes the need for a re-assignment on remand particularly pressing, and we ask the Court to invoke Rule 36 here. The judgment of dismissal should be reversed, and the case should be remanded to the district court with instructions that it be assigned to a different district judge. Respectfully submitted,
Paul Alan Levy Public Citizen Litigation Group Attorney for Plaintiff-Appellant January 25, 1993
This Short Appendix contains all items required by Circuit Rule 30.
Paul Alan Levy 1. All of these claims have been dismissed, and none were pressed on the prior appeal. Thus, only plaintiff's expulsion claim remains before the courts. 2. The court also dismissed on the alternate ground of litigation abuse. This Court rejected this ground as well. 969 F.2d 465, 473. 3. Local Rule 2.6 forbids the filing of discovery materials except to the extent that they are relevant to motions or oppositions to motions. Hence, the subpoena was not filed below simultaneously with service. It is, however, attached to this Brief. 4. Because non-business days are not counted for periods of less than eleven days, Rule 6(a), the ten days prescribed by Rule 56(c) allowed the same time as the fourteen days prescribed by the Local Rules. 5. Because Illinois and Federal law appear to be identical in this regard, there is no need to discuss which governs. 6. In objecting to summary reversal, the union faulted plaintiff for failing to proffer affidavits to this Court in support of his appeal. Not having filed such affidavits below, plaintiff cannot present them here. Plaintiff has furnished the Court with his subpoena, which was also not filed below, because it was served below on the same day that the judgment of dismissal was entered, but was not filed because the Local Rules preclude such filing. more resources
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