NONPRECEDENTIAL DISPOSITION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 July 5, 2011
Decided September 20, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐3208 Appeal from the United States District
Court for the Southern District of
STEVEN PETERS, Indiana, Indianapolis Division.
Plaintiff‐Appellant,
No. 1:04‐cv‐01338
v.
Sarah Evans Barker,
GILEAD SCIENCES, INCORPORATED, Judge.
Defendant‐Appellee.
O R D E R
Steven Peters suffered a work‐related injury, took medical leave, and was
subsequently terminated by his employer, Gilead Sciences, Inc. Peters sued Gilead, alleging
(among other things) a violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601 et seq., and a claim for promissory estoppel under Indiana law. The district court
granted summary judgment for Gilead. We reversed and remanded. The leave provisions
in Gilead’s employee handbook, we held, may have given Peters a contractual right under
state law to the equivalent of FMLA leave regardless of his statutory ineligibility for relief
under the FMLA. At the very least, the provisions were promises possibly giving rise to
recovery under promissory estoppel. See Peters v. Gilead Sciences, Inc., 533 F.3d 594, 601 (7th
Cir. 2008).
No. 10‐3208 Page 2
On remand, Magistrate Judge Tim Baker held a settlement conference that was
ultimately unsuccessful. A few days later, Peters’s attorney moved to withdraw, citing a
breakdown in the attorney‐client relationship. Magistrate Judge Baker scheduled a
telephonic conference to address the motion, ordering both counsel and Peters himself to
appear. Peters did not appear. Accordingly, Magistrate Judge Baker granted the motion to
withdraw and gave Peters 12 days to show cause why sanctions should not issue for his
nonappearance.
Three months later, having received no response at all from Peters, Magistrate Judge
Baker recommended that the district court, Judge Sarah Barker, dismiss the case. Gilead
followed up on this recommendation by filing a motion to dismiss along similar lines.
Judge Barker agreed with Magistrate Judge Baker’s recommendation and dismissed the case
with prejudice.
Thirty‐one days after the dismissal, Peters filed a motion for reconsideration, arguing
that he had not abandoned his claims. He claimed that in response to the order to show
cause, he had sent a letter to “the Judge” explaining that he was not notified about the
telephonic conference. Peters also claimed that after reviewing Magistrate Judge Baker’s
dismissal recommendation, he called the judge’s assistant and said that he wanted to
proceed with his case. Finally, Peters claimed that various health problems had hindered
his ability to prosecute his case. In support of his motion for reconsideration, Peters
attached an unsigned document (which he erroneously called an “affidavit”) that repeated
these excuses for noncompliance.
The district court denied Peters’s motion. The court declined to credit Peters’s claim
that he had attempted to contact the judges and their assistants to explain his disobedience,
noting that Peters had not submitted a copy of the letter he claimed to have submitted to the
court. In addition, because Peters’s “affidavit” was unsigned, the court rejected it as
procedurally deficient. Finally, the court determined that there was no evidence to support
Peters’s contention (again, in the unsigned “affidavit”) that he had been plagued by health
problems that hampered his ability to prosecute his case.
Peters appealed, challenging court’s decision to dismiss his case. The only issue
properly before us, however, is whether the district court erred in denying his motion to
reconsider, not whether the court erred in dismissing the case. Peters’s motion for
reconsideration was filed 31 days after the dismissal, so it must be treated as a motion under
Rule 60(b) as opposed to Rule 59. Relief under Rule 60(b) is extraordinary and reserved for
exceptional circumstances. See McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir.
2000). Our review of the denial of a Rule 60(b) motion is highly deferential. See Metlyn
Realty Corp. v. Esmark, Inc., 763 F.2d 826, 831 (7th Cir. 1985).
No. 10‐3208 Page 3
The district court explained its reasoning in detail, and we find no abuse of
discretion. There was no credible evidence that Peters contacted the judges or their
assistants to explain his failure to appear for the telephonic conference or to respond to the
order to show cause. Nor was there any verification of the health problems Peters claimed
had interfered with his ability to prosecute his case. Moreover, all of Peters’s arguments in
his motion to reconsider were premised on an unsigned “affidavit” that referenced other
documents not submitted to the court. Finally, Peters cannot gain any traction by asserting
that the district court should have given more, or more forceful, warnings before dismissing
his case. This argument (and several others in Peters’s appellate brief) did not appear in his
motion to reconsider and thus was not preserved. See Brown v. Auto. Components Holdings,
LLC, 622 F.3d 685, 691 (7th Cir. 2010).
AFFIRMED.