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No-Show Attorney Loses Client’s Injury Suit Against Home Depot

June 17, 2021, 6:24 PM

A “delinquent” Illinois lawyer, scolded and sanctioned for missing court dates in his client’s injury case against Home Depot USA Inc., had his suit appropriately dismissed, a federal appeals court said Thursday.

Lawrence Krivak tripped, fell, and fractured his elbow in a Home Depot store parking lot in Illinois in 2015. A federal district court dismissed his case when his counsel failed to show up for conferences and missed deadlines. The U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal, finding the district court “acted well within its discretion.”

Krivak’s counsel, John James Corbett of Palatine, Ill., “seemed to pay little attention to court rules” and “played loose with deadlines,” the Seventh Circuit said.

In the U.S. District Court for the Northern District of Illinois, Corbett attributed his behavior to his firm’s unfamiliarity with federal practice, particularly his assistant’s inexperience. But “the district court’s patience eventually ran out,” the Seventh Circuit said.

Corbett failed to appear at a Dec. 19 status conference before the magistrate judge, who said he was unable to confirm whether discovery was complete without Corbett’s presence. The conference was the third in a row where Corbett failed to appear without giving notice or attempting to provide good cause for his absence.

“Disregarding court orders and deadlines is a risky course, and counsel’s inattention caught up with him,” the court said.

The district court dismissed Krivak’s case with prejudice. Corbett moved to vacate the judgment.

“At this point, Krivak’s counsel apparently realized the magnitude of the problem caused by his delinquency,” the Seventh Circuit said.

The “misfortune” of Krivak bearing the cost of his counsel’s delinquency wasn’t lost on the court, but it also wasn’t a reason to overturn the district court’s decision, the appeals court said.

Krivak claimed he suffered a fractured elbow because of the store’s negligence, and that his injuries required multiple surgeries as well as physical and occupational therapy.

Both the appeals court and the district court observed that a potential remedy for Krivak is a malpractice suit against Corbett, but the Seventh Circuit didn’t weigh in on the merits of filing that claim.

Judge Michael Y. Scudder wrote the opinion, joined by Judges Diane S. Sykes and Frank H. Easterbrook.

McVey & Parsky LLC represented Home Depot.

The case is Krivak v. Home Depot USA Inc., 7th Cir., No. 20-1276, 6/17/21.

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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