Hayes, Ramon v. Cingular Wireless ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2007
Decided April 2, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3903
RAMON HAYES, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 C 0540
CINGULAR WIRELESS LLC, et al.,
Defendants-Appellees. Charles R. Norgle, Sr.,
Judge.
ORDER
In this case, which has been marked by procedural missteps and confusion,
Ramon Hayes appeals from the denial of two post-judgment motions. We affirm.
Hayes, through his company, Portablecomm, Inc., sold wireless services for
Cingular Wireless LLC from 1997 to 2002. In 2004 Hayes and three co-plaintiffs
(not parties to this appeal) sued Cingular and its parent companies, SBC
Communications Inc., and BellSouth Corp., alleging that Cingular committed
common law fraud, violated contractual provisions, and discriminated against them
because they are African-American. Each of the three defendants moved to dismiss
the complaint under Rule 12(b)(6) for failure to state a claim. In March 2004 the
district court dismissed the action, but granted plaintiffs leave to file an appropriate
No. 05-3903 Page 2
motion to vacate the dismissal, setting forth any existing good cause why the
dismissal orders should be vacated under Federal Rules of Civil Procedure 59(e) or
60(b). Plaintiffs did not file any such motion or provide any sound basis with which
to vacate the dismissal orders. Instead, they filed a series of motions and papers
directed at the already-granted motions to dismiss. In response to these filings, the
district court set a final deadline of January 14, 2005 for plaintiffs to file any proper
motion under Rule 60(b) for relief from the March 2004 judgment. The district
court also granted plaintiffs’ counsel leave to withdraw and Hayes leave to proceed
pro se.
Hayes did not file any motions by the court’s January 2005 deadline. In
February, however, a notice of appeal was filed by Hayes’s former counsel on behalf
of Hayes and his co-plaintiffs. Three days later, Hayes filed a pro se motion
purportedly under Rule 59(e) motion seeking to alter or amend the court’s
judgment. The district court struck that motion in July 2005 for filing it after
already having filed a notice of appeal. In March we allowed Hayes to voluntarily
dismiss the appeal. Finally, in August 2005, Hayes filed a motion seeking
reconsideration of the court’s July 2005 order. But he did not notice the motion for
presentment, see N.D. Ill. L. R. 5.3(b), serve defendants’ counsel, or file a certificate
of service, and so in August 2005, the district court struck that motion as well.
Hayes then filed a notice of appeal. In August 2006, we issued a briefing schedule,
and noted that this appeal was timely only as to the July 2005 order striking the
motion to amend judgment and the August 2005 order striking the motion to
reconsider.
Hayes’s appellate brief, however, focuses only on the district court’s dismissal
of his underlying complaint. We lack jurisdiction to consider his arguments because
Hayes did not timely appeal the district court’s orders dismissing his complaint.
See Fed. R. App. P. 4(a)(1)(A); Talano v. Northwestern Med. Faculty Found., Inc.,
273 F.3d 757, 760 (7th Cir. 2001). Furthermore, by failing to address the only two
orders to which this appeal is limited, Hayes has waived any challenge to those
orders. See Luellen v. City of East Chicago, 350 F.3d 604, 612 n.4 (7th Cir. 2003).
AFFIRMED.