Timothy Platt v. United States ( 2019 )


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  •                         NONPRECEDENTIAL DISPOSITION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 August 19, 2019*
    Decided August 20, 2019
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    MICHAEL S. KANNE, Circuit Judge
    DIANE S. SYKES, Circuit Judge
    No. 19‐1214
    TIMOTHY C. PLATT and SONIA E.                  Appeal from the United States District
    PLATT,                                         Court for the Southern District
    Plaintiffs‐Appellants,                    of Indiana, Indianapolis Division.
    v.                                       No. 1:18‐cv‐1455‐WTL‐TAB
    UNITED STATES OF AMERICA,                      William T. Lawrence,
    DEPARTMENT OF EDUCATION, and                   Judge.
    EDUCATIONAL CREDIT
    MANAGEMENT CORPORATION,
    Defendants‐Appellees.
    ORDER
    Timothy and Sonia Platt appealed to the district court after a bankruptcy court
    entered summary judgment against them on their suit seeking to discharge their
    student‐loan debts. The case then languished unprosecuted in the district court for eight
    * We have agreed to decide this case without oral argument because the briefs
    and record adequately present the facts and legal arguments, and oral argument would
    not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
    No. 19‐1214                                                                          Page 2
    months until the judge granted the defendants’ unopposed motion to dismiss it for
    failure to prosecute. Because that decision was reasonable, we affirm.
    The Platts filed for bankruptcy protection under Chapter 7 and brought an
    adversary proceeding against the United States Department of Education. In it they
    sought to discharge their student‐loan debts on the ground of undue hardship.
    See 
    11 U.S.C. § 523
    (a)(8). Educational Credit Management Corporation holds an interest
    in the Platts’ loans and intervened as a defendant. See FED. R. BANKR. P. 7024; FED. R.
    CIV. P. 24(a)(2). The bankruptcy judge concluded that the Platts had not provided
    sufficient evidence of each element required to show undue hardship: (1) paying the
    loans would push the Platts below a minimal standard of living, (2) their inability to
    pay was likely to persist, and (3) they had made good‐faith efforts to repay the loans.
    See Tetzlaff v. Educ. Credit Mgmt. Corp., 
    794 F.3d 756
    , 758–59 (7th Cir. 2015); Brunner
    v. N.Y. State Higher Educ. Servs. Corp., 
    831 F.2d 395
    , 396 (2d Cir. 1987).
    The Platts appealed in May 2018 to the district court. Shortly thereafter, the judge
    issued a notice to the parties stating (in underlined font) that “the briefing schedule in
    this matter shall be in accordance with Federal Rule of Bankruptcy Procedure 8018.”
    This rule required the appellants to file their brief within 30 days after the record was
    docketed in the district court. FED. R. BANKR. P. 8018(a)(1). The record was transmitted
    to that court and docketed on June 8.
    Nothing happened in the case for five months. At that time, in November 2018,
    the defendants moved to dismiss the appeal because the Platts had not filed an opening
    brief or taken any other action. (In the interim, Timothy Platt had filed two other federal
    lawsuits. See Platt v. Cmty. Health Network, Inc., No. 1:18‐cv‐02375‐RLY‐MPB (S.D. Ind.)
    (filed Aug. 3, 2018); Platt v. Educ. Credit Mgmt. Corp., No. 1:18‐cv‐02378‐TWP‐DML (S.D.
    Ind.) (filed Aug. 3, 2018) (suit against defendant in this case).) The defendants mailed a
    copy of their motion to the Platts, but it was returned as undeliverable because the
    defendants had mistyped the Platts’ address. The defendants resent their motion (this
    time to the correct address) and filed an updated certificate of service dated December
    4, 2018, in the district court. Six weeks later, the Platts still had not responded to the
    defendants’ motion. Based on the lack of opposition and failure to prosecute, on
    January 18, 2019, the district judge granted the defendants’ motion and dismissed the
    case with prejudice. The judge reasoned that “dismissal is appropriate given the
    [Platts’] complete failure to take any action in this case for eight months.”
    On appeal to this court, the Platts argue that in two respects they received
    inadequate notice about proceedings in the district court, so the dismissal was
    No. 19‐1214                                                                         Page 3
    unreasonable. First, they assert that they received no notice that their appeal had been
    docketed and a briefing schedule had been set. Second, they contend that they were not
    notified sufficiently about the defendants’ motion to dismiss. They observe that the
    defendants initially sent the motion to the wrong address and, once they mailed it to the
    correct address, the post office held it for one week because of a one‐week vacation hold
    that the Platts had placed on their mail.
    We review for abuse of discretion the district judge’s decision to dismiss the
    Platts’ bankruptcy appeal for failing to prosecute their appeal in the district court.
    See Telesphere Commc’ns, Inc. v. 900 Unlimited, Inc., 
    177 F.3d 612
    , 616 (7th Cir. 1999). We
    see no abuse. With respect to the Platt’s contention that they did not receive notice of
    the briefing order, even if that were true, they, like all parties, must diligently inquire
    about the status of their cases by checking the court’s docket periodically. See, e.g.,
    Easley v. Kirmsee, 
    382 F.3d 693
    , 697–98 (7th Cir. 2004); Soliman v. Johanns, 
    412 F.3d 920
    ,
    922 (8th Cir. 2005); see also Anderson v. Hardman, 
    241 F.3d 544
    , 545 (7th Cir. 2001) (pro se
    litigants must follow rules that apply to counseled parties). When they did not do so,
    despite the passage of many months during which they were able to come to court to
    launch two new federal lawsuits, they risked eventual dismissal for failure to prosecute.
    See McInnis v. Duncan, 
    697 F.3d 661
    , 663–64 (7th Cir. 2012) (repeated missed deadlines
    or single nonappearance combined with other instances of violating court orders
    justified dismissal); Telesphere Commc’ns, Inc., 
    177 F.3d at 616
    .
    The district court reasonably dismissed the case once the Platts compounded
    their initial failure to prosecute by not opposing the defendants’ motion to dismiss.
    See McInnis, 697 F.3d at 663–64. Their argument that they did not receive notice of that
    motion is unavailing. The defendants corrected the initial addressing error, and the
    one‐week vacation hold on the Platts’ mail explains only one of the six weeks during
    which they did nothing to respond to that motion. If the Platts had regularly checked
    the docket (as was their responsibility), or picked up their mail, they would have
    known from the defendants’ motion that, unless they responded, dismissal was a
    potential consequence of continuing to ignore the case. They therefore had an adequate
    warning that dismissal was imminent. See Fischer v. Cingular Wireless, LLC, 
    446 F.3d 663
    ,
    666 (7th Cir. 2006).
    The Platts also raise contentions related to the merits of their bankruptcy
    proceeding, but those arguments are not before us. We have considered the Platts other
    contentions, but none merits discussion.
    The judgment of the district court is AFFIRMED.