Eyiowuawi, Gbolahan v. Cook County Hospital , 146 F. App'x 57 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 11, 2005*
Decided August 17, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3178
GBOLAHAN R. EYIOWUAWI, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 03 C 9345
JOHN H. STROGER, JR.
HOSPITAL OF COOK COUNTY, Charles R. Norgle, Sr.,
et al., Judge.
Defendants-Appellees.
ORDER
Nigerian native Gbolahan R. Eyiowuawi has been employed since 1998 at the
John H. Stroger, Jr. Hospital of Cook County (the former Cook County Hospital). In
late December 2003 he brought suit claiming that he suffered discrimination at the
hands of the named defendants—the hospital and six employees—on account of his
gender and national origin. Eyiowuawi attempted to serve the defendants by
mailing a summons and copy of his complaint addressed to the hospital’s personnel
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-3178 Page 2
office but no answer was filed.1 Eyiowuawi then obtained from the district court, in
mid-February 2004, an order directing the United States Marshals Service to effect
service on his behalf, see Fed. R. Civ. P. 4(c)(2), but there is no indication in the
record that Eyiowuawi, who was not proceeding in forma pauperis, ever delivered
the necessary paperwork or paid any required fees to the marshals service, see 28
U.S.C. § 1921.
In early April 2004 the district court set the case for a status hearing on
April 21, 119 days after Eyiowuawi filed his complaint. An assistant state’s
attorney, by then aware of the lawsuit, appeared at this hearing on behalf of Cook
County and notified the district court that none of the defendants had been served.
Eyiowuawi missed the hearing, and when he did not show, the court dismissed the
suit for failure to prosecute. On May 10, 2004, the eleventh business day after
entry of the order dismissing his case, Eyiowuawi filed what he captioned as a
“motion to reconsider.” In this motion Eyiowuawi asserted that he arrived late at
the courthouse and missed the status hearing because the assistant state’s
attorney, when she mailed him a copy of her appearance form, did not indicate in
her correspondence the scheduled time of the April 21 status hearing. Eyiowuawi,
however, did not assert that a docket entry showing that the clerk mailed him
notice of the hearing was mistaken. After allowing briefing, the district court heard
Eyiowuawi’s motion on July 21 and verified that his intention was to proceed only
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17, and that
he did not serve Cook County before the dismissal of his complaint. The court then
denied Eyiowuawi’s motion, reasoning that he had not offered any ground for relief
under Rule 60(b).
Eyiowuawi filed a notice of appeal on August 20. His “motion to reconsider,”
however, was filed beyond the 10-day limit for motions under Fed. R. Civ. P. 59(e),
and thus did not toll the 30-day deadline for filing a notice of appeal, see Fed. R.
App. P. 4(a)(1)(A), (a)(4)(A). Instead, the post-judgment motion, given the timing of
its filing, was correctly analyzed by the district court as one under Fed. R. Civ. P.
60(b). See Talano v. Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 762
(7th Cir. 2001). Accordingly, as we explained to Eyiowuawi in our order of February
2, 2005, our review here encompasses only the order denying his post-judgment
motion, not the underlying order dismissing his complaint for failure to prosecute.
See, e.g., Castro v. Bd. of Educ., 214 F.3d 932, 934 (7th Cir. 2000).
1
John H. Stroger, Jr. Hospital of Cook County was named as a defendant and
never formally dismissed, but it is not apparent that the hospital is a separate, suable
entity from Cook County. See Payne v. Cook County Hosp., 719 F. Supp. 730, 733-34
(N.D. Ill. 1989).
No. 04-3178 Page 3
The question before us, then, is not whether the district court abused its
discretion in dismissing Eyiowuawi’s complaint without warning as a sanction for
missing the April 21 status hearing. See, e.g., Sharif v. Wellness Int’l Network,
Ltd., 376 F.3d 720, 725 (7th Cir. 2004); Aura Lamp & Lighting, Inc. v. Int’l Trading
Corp., 325 F.3d 903, 908 (7th Cir. 2003). That is a legal question Eyiowuawi should
have raised by appealing the dismissal (or by filing a timely motion under Rule
59(e)). See Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002) (observing that
“legal error is not a proper ground for relief under Rule 60(b)”). We have said
repeatedly that Rule 60(b) is not a substitute for an appeal or a timely motion under
Rule 59(e), and cannot serve to resurrect arguments that were available before the
time for filing an appeal expired. See, e.g., Tango Music, LLC v. DeadQuick Music,
Inc., 348 F.3d 244, 247 (7th Cir. 2003); Bell v. Eastman Kodak Co., 214 F.3d 798,
801 (7th Cir. 2000). Eyiowuawi does not dispute that he learned about the
dismissal shortly after the decision was announced, but he did not act promptly to
seek our review of that ruling. We cannot review it now, and Eyiowuawi offers no
other basis for disagreeing with the district court’s exercise of discretion in denying
his Rule 60(b) motion. See Fed. Election Comm’n v. Al Salvi for Senate Comm., 205
F.3d 1015 (7th Cir. 2000) (recognizing that propriety of dismissal without warning
for failure to prosecute, although abuse of discretion and grounds for appeal, was not
basis for overturning denial of motion under Rule 60(b) to set aside dismissal);
Dickerson v. Bd. of Educ. of Ford Heights, Ill., 32 F.3d 1114, 1118-19 (7th Cir. 1994)
(even thought there was an arguable abuse of discretion in applying Rule 41(b), that
was not a sufficient basis for overturning subsequent denial of Rule 60(b)).
AFFIRMED.