NONPRECEDENTIAL DISPOSITION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 October 21, 2014*
Decided October 21, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14‐1697
BENNY EBERHARDT, SR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 8877
DOROTHY BROWN, Clerk of the
Circuit Court of Cook County, Illinois, Samuel Der‐Yeghiayan,
Defendant‐Appellee. Judge.
O R D E R
After Benny Eberhardt, Sr., was fired from his job with the clerk’s office for the
Circuit Court of Cook County, he sued the clerk in her official capacity alleging
retaliatory discharge and discrimination based on race and disability. See 42 U.S.C.
§§ 2000e–2, 2000e–3, 12112. (Eberhardt included other defendants and claims in his
complaint, but none is relevant to this appeal.) The district court granted the
*
After examining the parties’ 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)(C).
No. 14‐1697 Page 2
defendant’s motion for summary judgment and denied Eberhardt’s post‐judgment
motion challenging that decision. Eberhardt has filed a notice of appeal, which a
motions panel has concluded is timely only as to the order denying Eberhardt’s
post‐judgment motion.
At summary judgment Eberhardt did not submit any evidence opposing the
defendant’s motion, and the district court reasoned that the undisputed evidence would
permit a finder of fact to conclude only that Eberhardt was fired because of excessive
absenteeism, not because of a retaliatory or discriminatory motive. The district court
entered judgment on November 5, 2013, and 30 days later, on Thursday, December 5,
Eberhardt filed what he captioned as a “motion for reconsideration” of the order
granting summary judgment. He asserted that he had not attached evidentiary
materials to his response because he mistakenly believed that he was to present them to
the district court at an upcoming status hearing. And without his materials, Eberhardt
continued, the district court should not have ruled on the defendant’s motion. The
district court construed Eberhardt’s post‐judgment motion as one under Federal Rule of
Civil Procedure 60(b), since it was filed more than 28 days after the entry of judgment.
See FED. R. CIV. P. 59(e), 60(b); Banks v. Chicago Bd. of Educ., 750 F.3d 663, 666–67 (7th Cir.
2014). The district court denied the motion, explaining that Eberhardt’s failure to submit
his materials was not excusable because the court had imposed a deadline for
responding to the defendant’s motion, and the defendant had told him that his
evidentiary materials must be submitted with his response. See Timms v. Franks, 953
F.2d 281, 285 (7th Cir. 1992). Furthermore, the court stated, the materials that Eberhardt
wanted to submit would not change its ruling on the defendant’s motion.
Eberhardt devotes most of his brief to arguing that the district court erred in
granting summary judgment for the defendant, but the motions panel already
explained that our appellate jurisdiction is limited to the order denying the
post‐judgment motion. That motion did not toll the deadline for filing a notice of appeal
because it was filed more than 28 days after entry of judgment. See FED. R. APP. P.
4(a)(4)(A)(vi); Banks, 750 F.3d at 667. Eberhardt maintains, however, that the district
court should have extended the time for filing his post‐judgment motion (and then
construed it as a motion for reconsideration under Federal Rule of Civil Procedure
59(e).) That was not an option; a Rule 59(e) motion must be filed within 28 days, and
this limit cannot be extended. See FED. R. CIV. P. 6(b)(2); Banks, 750 F.3d at 666–67.
Eberhardt maintains that, as a pro se litigant, he was unaware of these rules, but
litigants who proceed without counsel are not excused from following procedural rules.
McNeil v. United States, 508 U.S. 106, 113 (1993); Pearle Vision, Inc. v. Romm, 541 F.3d 751,
No. 14‐1697 Page 3
758 (7th Cir. 2008). In a civil case, filing a timely notice of appeal is a jurisdictional
limitation, see FED. R. APP. P. 4(a), and we do not have discretion to consider arguments
outside of our jurisdiction.
Eberhardt’s fallback position is that the district court abused its discretion by not
extending the time for him to appeal the underlying judgment, as authorized by Federal
Rule of Appellate Procedure 4(a)(5)(A). But Eberhardt waived this contention by
making it for the first time in his reply brief. See Alam v. Miller Brewing Co., 709 F.3d 662,
668 n.3 (7th Cir. 2013); Padula v. Leimbach, 656 F.3d 595, 605 (7th Cir. 2011). In any event,
a district court may not extend the time to appeal under Rule 4(a)(5)(A) without a
motion, which Eberhardt did not file. See Nocula v. UGS Corp., 520 F.3d 719, 724 (7th Cir.
2008); Lorenzen v. Employees Ret. Plan of the Sperry and Hutchinson Co., 896 F.2d 228, 231
(7th Cir. 1990) (explaining that district court may grant extension of time only if
permission is requested by motion showing good cause or excusable neglect).
That leaves for our review only the order denying Eberhardt’s post‐judgment
motion. We review the denial of a Rule 60(b) motion for abuse of discretion. Nash v.
Hepp, 740 F.3d 1075, 1078 (7th Cir. 2014). The district court denied Eberhardt’s motion
on the ground that he was warned that he must submit all of his evidence with his
response to the motion for summary judgment, both by the defendant in her motion for
summary judgment and by the court through the briefing schedule. See N.D. ILL. LOCAL
R. 56.2; Timms, 953 F.2d at 285. We see no abuse of discretion—and Eberhardt does not
point to one—in the district court’s determination.
AFFIRMED.