NONPRECEDENTIAL DISPOSITION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 April 13, 2011*
Decided April 13, 2011
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐3131
IN RE: WENDY ALISON NORA, Appeal from the United States District
Debtor‐Appellant, Court for the Western District of Wisconsin.
No. 10‐cv‐68‐bbc
Barbara B. Crabb,
Judge.
O R D E R
Wendy Nora petitioned for relief from her creditors under Chapter 13 of the
bankruptcy code. One creditor, Residential Funding Company, asked the bankruptcy court
to lift the automatic stay on collecting debts so that it could move forward with a state‐court
action to foreclose a mortgage on Nora’s condominium. The bankruptcy court lifted the
stay, and Nora appealed that decision to the district court. Her appeal, however, never got
off the ground; five months passed without an opening brief because, she claimed, her
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐3131 Page 2
medical condition “totally disabled” her from any litigation. Yet, despite her claim, in that
same period she actively litigated in both the bankruptcy court and the district court on
almost every topic except the merits of her appeal. With no merits brief in sight, and with
the excuse she proffered for her delay refuted by her own litigation activity, the district
court dismissed the matter for failure to prosecute. Finding no abuse of discretion, we
affirm.
Nora requested her first briefing extension in the district court within a day of filing
the notice of appeal. She asked for more than the allotted two‐week period to file her
opening brief, explaining in a string of submissions that her symptoms of fibromyalgia, a
chronic condition with no cure, disabled her from filing a brief on the merits. She claimed,
for example, that she was “totally disabled,” “lacking basic functionality,” and “in urgent
need of immediate disability accommodations.” A magistrate judge granted a 62‐day
extension. When that deadline was two days away, Nora requested an additional 45 days,
explaining (in 25 single‐spaced paragraphs) that a “pinched nerve” and post‐traumatic
stress disorder had complicated her recovery and would prevent any merits filing
indefinitely. The magistrate judge granted the second extension, but for only 15 days.
At the same time that she told the district judge that she was “totally disabled” from
litigating, Nora was actively litigating in the bankruptcy court. The bankruptcy docket
shows weekly filings during the relevant period, most concerning her medical condition but
also several pertaining to the merits of her bankruptcy petition, including amended
schedules and income records, an amended bankruptcy petition, and a motion to reconvert
the case from Chapter 11 to Chapter 13. Moreover, the district judge learned that in addition
to her personal litigation, Nora, an attorney, was simultaneously handling a bankruptcy
case on behalf of a client. She kept her client’s case active during the period in question.
Coincidentally, the record of that case shows that, on behalf of her client, Nora opposed a
creditor’s motion to lift the automatic stay; she filed roughly a half dozen submissions of
varying length and complexity on the issue—the same issue that she disclaimed an ability
to litigate in her own appeal.
Despite her evident capacity to litigate extensively before the bankruptcy court, Nora
asked the magistrate judge to reconsider the decision to give her only 15 additional days to
file her merits brief beyond the initial two‐month extension, contending again that her
medical incapacity necessitated another two months’ extension. The magistrate judge
denied the motion, suggesting that anyone in the condition that she was describing needs to
retain counsel. Declining to retain counsel or file her merits brief, she filed another motion
seeking more time with the district judge, who also denied the request. Once five months
passed without a merits brief, and having before it a record showing that Nora could litigate
prodigiously in the bankruptcy court despite her claimed incapacity, the district judge
No. 10‐3131 Page 3
dismissed the bankruptcy appeal for failure to prosecute. Nora filed a post‐judgment
motion within 28 days of judgment, asking the district court to vacate the dismissal in light
of “new evidence” that her medical condition may have been more serious; that motion too
was denied.
Because her post‐judgment motion came within 28 days of judgment, her appeal to
us brings up both the post‐judgment order and the underlying dismissal. See York Group,
Inc. v. Wuxi Taihu Tractor Co., 632 F.3d 399, 401 (7th Cir. 2011). Nora argues on appeal that
the dismissal of her bankruptcy appeal for failure to prosecute was unconstitutional and an
abuse of discretion. She ticks off a list of constitutional and statutory rights which she
maintains were violated by the dismissal. Most of her arguments, including her argument
that the district court violated the Americans with Disabilities Act, merit no discussion
except insofar as we construe them as contending that the district court abused its discretion
under Federal Rule of Civil Procedure 41(b) in dismissing for want of prosecution.
A party’s willful failure to prosecute an action can be an appropriate basis for
dismissal. See, e.g., Bolt v. Loy, 227 F.3d 854, 856 (7th Cir. 2000); Fed. Election Comm’n v. Al
Salvi for Senate Comm., 205 F.3d 1015, 1018 (7th Cir. 2000); Williams v. Chi. Bd. of Educ., 155
F.3d 853, 857 (7th Cir. 1998). “Once a party invokes the judicial system by filing a lawsuit, it
must abide by the rules of the court; a party can not decide for itself when it feels like
pressing its action and when it feels like taking a break because ‘[t]rial judges have a
responsibility to litigants to keep their court calendars as current as humanly possible.’”
GCIU Employer Ret. Fund v. Chi. Tribune Co., 8 F.3d 1195, 1198‐99 (7th Cir.1993) (quoting
Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 608 (7th Cir.1986)). Factors relevant to a court’s
decision to dismiss for failure to prosecute include the seriousness of the misconduct, the
potential for prejudice to the defendant, and the possible merit of the suit. Bolt, 227 F.3d at
856; Kovilik Constr. Co. v. Missbrenner, 106 F.3d 768, 759‐60 (7th Cir. 1997). Because a district
court must have wide latitude in managing litigation, our review of a dismissal for failure to
prosecute under Rule 41(b) is deferential, and we will uphold a dismissal unless it strikes us
as fundamentally wrong. Gabriel v. Hamlin, 514 F.3d 734, 736 (7th Cir. 2008); Aura Lamp &
Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 908‐09 (7th Cir. 2003).
Faced with the contradiction between Nora’s claimed incapacity to litigate her
appeal and her active litigation of both her and her client’s bankruptcy case, the district
court was within its discretion in dismissing the bankruptcy appeal after two extended
deadlines and five months passed without a substantive filing. We underscore that Nora
did not contend, in asking for more time, that she was overburdened by the combination of
her deteriorating health, her personal bankruptcy, and the demands of her law practice; she
claimed, instead, that she needed prolonged relief from deadlines because she was “totally
disabled” from any litigation. But Nora’s submissions in the bankruptcy and district courts
No. 10‐3131 Page 4
belie that claim, suggesting that she was capable of briefing the merits of her appeal within
the two granted extensions of time.
The dismissal might have been improper had Nora given the district court a credible
reason to believe briefing would eventually begin in due course. But, to the contrary, Nora
actually gave the district reason to believe that merits briefing would continue to be delayed
indefinitely. Nora never estimated when her health would permit her to begin briefing.
Instead, she warned that she would proceed only if she received extensions in all of her
cases, both personal and representative, and even then, only after an additional 45 days.
This was hardly reassuring. Nor did she ever explain why her medical condition disabled
her from briefing the merits but allowed her to file numerous substantive motions in the
bankruptcy court. Under these circumstances, two extensions totaling 77 days of extra time
sufficiently accommodated Nora’s asserted health condition.
We recognize that the district court did not explain in detail the reasons for its
discretionary decision to dismiss and never explicitly weighed the factors that should
inform a decision under Rule 41. But while parsimony of words may not assist our review,
it does not preclude it either, and we may affirm on any basis in the record. See Crichton v.
Golden Rule Ins. Co., 576 F.3d 392, 399 n.2 (7th Cir. 2009). And this record contains ample
evidence of a prolonged, unjustified delay and lacks any plausible contention that the stay
was wrongly lifted. We are also mindful that a district court should issue a formal warning
before resorting to the sanction of dismissal for failure to prosecute, but such a warning is
not always required, Fischer v. Cingular Wireless, 446 F.3d 663, 665 (7th Cir. 2006). Given
Nora’s own assurance to the court that her professed inability to file a brief was not going to
abate any time soon, a warning would have served no purpose except to facilitate further
delay. See id.
Finally, Nora argues that the district court should have reconsidered the dismissal in
light of new evidence she referenced (but did not submit) in her post‐judgment motion that
her medical condition may have been more serious than she originally represented. But this
argument misses the point: the court was entitled to dismiss the action because her litigation
activity contradicted her claims of incapacity, not because the court did not have adequate
evidence of Nora’s medical condition.
AFFIRMED.
