Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 7899--Brian Barnett Duff, Judge.
Bauer, Chief Judge, Easterbrook and Ripple, Circuit Judges.
Edward A. Sere appeals the dismissal of his two-count case. The district court dismissed the entire case pursuant to Rule 37(b) of the Federal Rules of Civil Procedure for failure to comply with the court's discovery orders. Because Dr. Sere failed to challenge the propriety of the court's Rule 37(b) decision in his opening brief before this court, we hold that he has waived the issue. Accordingly, we affirm the decision of the district court.
Dr. Sere commenced this action by filing a two-count complaint in the district court on September 11, 1985. He alleged that the defendant-appellee, the Board of Trustees of the University of Illinois at Chicago (the University), discriminated against him because of his national origin and his race in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (count I), and 42 U.S.C. § 1981 (count II). Specifically, his complaint stated that he was employed as a counselor in the Educational Assistance Program (EAP) at the University. It also stated that, following the expiration of his contract in 1984, he was informed by his supervisor that he would not be retained by the University. Subsequently, another individual--allegedly less qualified than Dr. Sere--replaced him as a counselor in the EAP. The complaint alleged discrimination because Dr. Sere is a "black Nigerian male, a citizen of the United States," while his supervisor and his replacement are both "black American[s]." R.1 at 2-3 (emphasis supplied). Dr. Sere sought reinstatement, injunctive relief, compensatory damages, punitive damages and attorneys' fees.
The University filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. In a memorandum opinion and order dated February 28, 1986, the district court granted the University's motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure with respect to the § 1981 (count II) claim only. Thereafter, Dr. Sere failed to conduct his own discovery on the surviving count. He also violated two court orders to complete a deposition initiated by the University. Accordingly, on September 11, 1986, the University moved for dismissal pursuant to Rule 37(b). The district court granted the motion and dismissed the case in its entirety. Alter the denial of post-trial motions, Dr. Sere filed his notice of appeal.
Dr. Sere later filed a motion styled a "motion to amend notice of appeal." In that motion, he submitted that a recent Supreme Court decision was dispositive on the merits of his § 1981 claim. This court granted the motion. The University promptly requested this court to reconsider that decision. We denied the request. Dr. Sere then filed his initial appellate brief with us. However, the brief failed to make any argument that the district court improperly dismissed the case under Rule 37(b).
The first issue that we must address is whether Dr. Sere waived the correctness of the Rule 37(b)*fn1 dismissal by falling to raise it in his opening brief. As we held recently in Beard v. ...