Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 88 C 2537--Brian Barnett Duff, Judge.
Flaum and Easterbrook, Circuit Judges, and Fairchild, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
The plaintiff has appealed from an order making explicit what was previously implicit: that an earlier order dismissing her case dismissed it with prejudice. The plaintiff now attempts, in effect, to argue that the earlier order dismissing her case was an abuse of discretion. She must lose, because we have no jurisdiction to consider the merits of the earlier order, and because the later order was correct.
The plaintiff, Carol LeBeau, first filed this lawsuit in an Illinois court, claiming that she had suffered over $15,000 in damages on account of biting a foreign object in food prepared by the defendant, Taco Bell, Inc. Taco Bell removed the case to federal court under the district court's diversity jurisdiction on March 25, 1988. The district court set the case for a status call on April 22, 1988, but Ms. LeBeau's attorney failed to appear, thinking that because he did not oppose Taco Bell's pending motion for extension of time to file an answer, there was no reason to attend. Ms. LeBeau's attorney also didn't show up for a second status date on June 3, 1988, this time because of his scheduling error. Judge Duff, noting that this was the second time no one had appeared for the plaintiff, sua sponte dismissed the case for want of prosecution, commenting to defense counsel, "[let's] see if that gets his attention." The court entered a minute order that day which reads "Plaintiff failed to appear. For the reasons stated in open court, cause dismissed for want of prosecution." Because the judgment did not otherwise state, the dismissal was on the merits--with prejudice. Federal Rule of Civil Procedure 41(b);*fn1 Kimmel v. Texas Commerce Bank, 817 F.2d 39, 40-41 (7th Cir. 1987).
Ms. LeBeau's attorney moved to vacate the dismissal (presumably under Federal Rule of Civil Procedure 60(b)), but failed to appear on the date the motion was scheduled to be heard because he was out of town attending a seminar. He sent in his stead an attorney unfamiliar with the case and unprepared to argue his motion, and the motion to vacate was denied on July 14, 1988. Another motion to vacate was scheduled for August 11, 1988, and Ms. LeBeau's attorney appeared for this one, but Judge Duff again denied the motion because Ms. LeBeau's attorney failed to present sufficient grounds to satisfy the district judge that reinstatement was proper.
No appeal was filed either from the dismissal or the denials of the motions to vacate. Instead, Ms. LeBeau's attorney simply refiled the case in state court, the complaint now carefully alleging less than $10,000 in damages. Taco Bell moved to dismiss the state court lawsuit as res judicata, arguing (correctly) that the dismissal for want of prosecution in federal court was with prejudice, and thus a binding adjudication on the merits. See Blaszczak v. City of Palos Hills, 123 Ill. App. 3d 699, 463 N.E.2d 762, 764, 79 Ill. Dec. 208 (Ill. App. 1 Dist. 1984); Kimmel, 817 F.2d at 40-41. The state court judge, however, denied Taco Bell's motion. The judge was unsure from the face of the dismissal order whether or not it was with prejudice, and apparently thought Federal Rule of Civil Procedure 41(b) does not apply to a case which had not yet been set for trial.
Taco Bell then went back to federal court, and filed a "Motion for Elaboration Upon Order," asking Judge Duff to enter an order nunc pro tunc specifying that his June 3, 1988 dismissal was with prejudice. After hearing argument, on December 1, 1988 Judge Duff entered an order stating that
pursuant to the original intent of this Court, the words in brackets shall be added to the order of June 3, 1988, nunc pro tunc said date,
PLAINTIFF FAILED TO APPEAR. FOR THE REASONS STATED IN OPEN COURT, CAUSE DISMISSED FOR WANT OF PROSECUTION [. . . . with prejudice under Rule 41b of the Federal Rules of Civil Procedure for plaintiffs failure to appear for status as required by General Rule 21 of this Court.]
Ms. LeBeau appeals from this order.
Because no appeal was taken from the dismissal order or the denial of the motions to vacate, what may have been Ms. LeBeau's strongest argument has been forfeited. Her brief complains that it was an abuse of discretion to dismiss her case because of her attorney's lapses, but we do not have jurisdiction to address this issue. The appeal was taken from the December 1, 1988 order. It was, of course, far too late to appeal from the June 3 order. The time limits for filing an appeal are "mandatory and jurisdictional." Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 263 n. 7, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978).
At oral argument, Ms. LeBeau's attorney suggested that because the December 1, 1988 order adding language to the June 3, 1988 dismissal order was nunc pro tunc June 3, this brings the merits of the earlier decision before us. However, an appeal from an order amending an earlier judgment does not independently bring before us the merits of the original decision. Hough v. Local 134, IBEW, 867 F.2d 1018, 1021-22 (7th Cir. 1989); McKnight v. United States Steel Corp., 726 F.2d 333, 335 (7th Cir. 1984). Otherwise, parties could defeat the 30-day time limit in F.R.A.P. 4(a) by using a Rule 60 motion to reopen the merits of a decision after the time to appeal has passed. The only question before us is the propriety of the December 1, 1988 order.
In this case, the question is academic. If we were to vacate the December 1, 1988 order, Ms. LeBeau would be no better off than if we affirm it. Rule 41(b) requires reading the June 6, 1988 dismissal as an adjudication on the merits, because it did not specify otherwise. Although Rule 41(b) is located in the "Trials" section of the Federal Rules of Civil Procedure, it includes dismissals which could occur well before trial--such as dismissals "[for] failure . . . to comply with these rules or of any ...