UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: December 29, 1989.
LEWIS WOODALL AND KADIR MUTLU, PLAINTIFFS-APPELLANTS,
THE DRAKE HOTEL, INC., AN ILLINOIS CORPORATION, ET AL., DEFENDANTS-APPELLEES
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 5551--Marvin E. Aspen, Judge.
Bauer, Chief Judge, Kanne, Circuit Judge, and Eschbach, Senior Circuit Judge.
BAUER, Chief Judge.
The appellants in this case, Kadir Mutlu and Lewis Woodall, were class members in an action brought pursuant to the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 621-634. On appeal, they challenge three orders of the district court. First, they contend that the district court abused its discretion by permitting counsel for the class of approximately 90 plaintiffs to withdraw from representing just the two of them. Second, they contend that because the settlement agreement excluded their claims, the district court erred by dismissing the class's cause of action by reason of settlement. Third, they contend that the district court abused its discretion by dismissing their claims for want of prosecution. (The court entered the order dismissing Mutlu's and Woodall's claims after it entered the order dismissing the entire cause of action.) Although we are sympathetic to the problems Mutlu and Woodall encountered in the court below, we must dismiss their appeal for want of jurisdiction because it was not timely filed.
In 1982, several employees of the Drake Hotel filed a lawsuit on behalf of themselves and all others similarly situated against the Drake Hotel (the "Drake") and its parent companies, Hilton International and Vista International, alleging that the defendants discriminated against them in terms of job placement, termination, and salary in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 621-634 (the Behr litigation). In 1984, Mutlu and Woodall, along with fifty-two other present and former employees of the Drake, became members of the lawsuit pursuant to the "opt-in" provisions of the ADEA. See 29 U.S.C. § 626(b) (incorporating by reference the enforcement provisions of the Fair Labor Standards Act (the "FSLA"), 29 U.S.C. § 216(b)).*fn1 Anthony Valiulis, Kenneth Wexler, Lawrence Eiger, and Howard Cohen of the law firm of Much, Shelist, Freed, Denenber, Ament and Eiger, ("class counsel"), filed the consents on behalf of Mutlu, Woodall and the others, and entered, their appearances as counsel for the consenting plaintiffs.
In October of 1986, Mutlu and Woodall received notice from class counsel stating that counsel would be filing a motion in the district court seeking leave to withdraw from representing them and that the motion would be presented to the court on October 7 at 9:30 am. Neither the notice nor the motion set forth reasons for the proposed withdrawal. The Drake and the other defendants filed a written objection to the motion on the basis that withdrawal would delay resolution of the lawsuit. On October 7, Mutlu and Woodall came to court in order to object. The district court, however, did not hold a hearing on the matter; instead, it took the motion under advisement. By minute order dated October 15th, and without holding a hearing on the matter, the court granted class counsel's motion to withdraw having never held a hearing on the matter and even though counsel never disclosed the reasons which they believed compelled them to seek withdrawal.
Things went from bad to worse for Mutlu and Woodall. They attempted to retain new counsel but, not surprisingly, could not find an attorney willing to represent just two plaintiffs out of a class of ninety. In the meantime, class counsel and the defendants attended pretrial conferences and settlement negotiations. Neither Mutlu nor Woodall participated in the conferences or negotiations, apparently because they did not receive notice of these events.*fn2 In July of 1987, class counsel and the defendants reached a settlement agreement. This agreement did not include a resolution of the claims of Mutlu and Woodall. On July 24, the defendants informed the district court that a settlement agreement had been reached and asked for a dismissal of the cause of action. By minute order dated the same day, the district court dismissed the class's cause of action.*fn3
Mutlu and Woodall found out about the settlement. On July 31, Mutlu sent a letter to the district court, inquiring about the effect of the settlement on his claim. On August 4, Woodall also sent a letter to the court, apparently in response to a conversation he had with the defendants' attorney. He wrote, "[after] my talk with you [the defendants' attorney] today, I cannot believe what you said, that you thought that I had dropped out of this case. Everytime I got a notice that a hearing on a motion was held, i [sic] always come down to court room Judge Aspen, to learn that the motion was heard a day before the date was stated."
On August 11, the defendants filed a motion to dismiss the claims of Woodall and Mutlu for want of prosecution, alleging that both plaintiffs had failed to participate in the case since October 1986 when the court granted class counsel's motion for leave to withdraw. The same day, the court directed Mutlu and Woodall to file a response to the motion by September 18. Woodall and Mutlu filed their responses on August 26 and September 2, respectively. By minute order dated October 14, the district court granted the defendants' motion to dismiss. On October 29, Mutlu and Woodall filed pro se notices of appeal and this court appointed counsel to represent them on appeal.
Although neither party disputes this court's jurisdiction, we have an independent obligation to insure that we have jurisdiction over the appeal. "The timely filing of a notice of appeal is mandatory and jurisdictional." Parke-Chapley Construction Co. v. Cherrington, 865 F.2d 907, 909 (7th Cir. 1989) (citing Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 264 (1978) (other citations omitted)). Federal Rule of Appellate Procedure 4(a)(1) provides that the notice of appeal must be filed within 30 days after the date of entry of the judgment or order from which the appeal is taken. Because Mutlu and Woodall failed to file a timely notice of appeal, we must dismiss their appeal for want of jurisdiction.*fn4
It is true that Mutlu and Woodall appealed in a timely manner from the district court's order of October 14, 1987, dismissing their claims for want of prosecution. This order, however, is a nullity. With the district court's dismissal of the class cause of action on July 24, 1987, the district court's jurisdiction over the claims of Mutlu and Woodall necessarily terminated. Because the district court's jurisdiction terminated on July 24, it lacked the power to enter an appealable order on October 14.
The final order in this case, and the one from which Mutlu and Woodall had to appeal within 30 days, was the July 24th order. Mutlu and Woodall, however, did not file a notice of appeal until October 29, well past the 30-day time limit. Their failure to file a timely notice of appeal is not surprising. At that point in time, neither Mutlu nor Woodall were represented by counsel.*fn5 Furthermore, neither the defendants nor the district court treated the July 24th order as the final order in this litigation: the defendants filed a motion to dismiss for want of prosecution, the court ordered Mutlu and Woodall to respond, and then the court granted the defendants' motion. These events, which reflect the confusion felt by both the court and the defendants, make Woodall and Mutlu's failure to appeal from the July 24 order understandable, but not excusable. Because Mutlu and Woodall failed to timely appeal, we must dismiss this appeal for want of jurisdiction. See Browder, 434 U.S. 257.
We express no opinion about the merits of a Fed.R.Civ.P. 60(b) motion.
This appeal is hereby