Ericson, Donna J. v. Hanks, Genevieve ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2006*
Decided March 31, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-4337
IN RE: Appeal from the United States District
Court for the Central District of Illinois
DONNA J. ERICSON,
Debtor-Appellant. No. 04-4043
Joe Billy McDade,
Judge.
ORDER
Donna Ericson’s appeal of a bankruptcy court’s adverse decision was
dismissed because she failed to file a sufficient opening brief. Ericson, who is
proceeding pro se, filed a motion under Federal Rule of Civil Procedure 60(b) to
vacate the dismissal, which the district court refused to do. She now appeals both
the dismissal and the denial of her 60(b) motion. We review both decisions for an
abuse of discretion, and will reverse only if no reasonable person could agree with
the district court’s decision. Moffitt v. Ill. State Bd. of Educ., 236 F.3d 868, 873 (7th
Cir. 2001).
*
The appellees failed to file a response brief and thereby forfeited their
opportunity to participate in briefing or oral argument. See Circuit R. 31(d). After an
examination of the appellant’s brief and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the appellant’s brief and
the record. See Fed. R. App. P. 34(a)(2).
No. 04-4337 Page 2
This is Ericson’s fifth bankruptcy petition in six years. The bankruptcy court
dismissed the petition and barred Ericson from refiling new claims for 180 days
after she failed to assemble an appropriate Chapter 13 plan and demonstrated bad
faith at numerous turns. (She used her proposed plan to harangue her opponents;
failed to attend a scheduled hearing on disingenuous grounds; and refused to
answer questions at another hearing after invoking the Fifth Amendment.) On
appeal to the district court, Ericson sought and received two extensions of time to
file her opening brief, first in June 2004 and then in July. In granting her second
motion on August 3, 2004, the district court warned that no further extensions
would be given, and that failure to submit a brief by the new deadline of August 13
would lead to the dismissal of the appeal.
On August 10 Ericson filed with the district court two submissions captioned
for the bankruptcy court: a “statement of issues to be presented” and an “appellant’s
designation of items.” Ericson claims that she was simply filing her docketing
statement and her list of items for the record on appeal, Fed. R. Bankr. P. 8006,
which the bankruptcy court had ordered her to do by August 10. The district court
had ordered her to file all future submissions with it, and by filing these items with
the district court rather than the bankruptcy court she was attempting to follow
that directive. The district court, however, interpreted the filings as Ericson’s
attempt at an opening brief and found that they put forth no argument as to why
the bankruptcy court erred. The court held that they therefore could not be
construed as a brief and dismissed the appeal for failure to prosecute.
Ericson filed a motion to vacate the judgment, contending that she had never
received the district court’s order granting her second extension of time and
warning that her case would be dismissed if she did not file her opening brief by
August 13. (She says she learned of the dismissal only after checking the district
court’s docket sheet in December.) Although the motion was filed quickly enough to
be considered a motion to alter or amend the judgment under Rule 59(e), it was
labeled a motion to vacate and cited Rule 60(b); moreover, the latter rule provides
the only arguable basis for relief in the circumstances. We will therefore treat it as
a motion under Rule 60(b). See Harrington v. City of Chicago, 433 F.3d 542, 545–46
(7th Cir. 2006). In its order denying the 60(b) motion, the district court noted that
if in fact Ericson had not received the order granting her an extension and refusing
any further extensions, she had still managed to file something on time, and so had
not been prejudiced.
Ericson’s brief in this court is largely a mass of recitals of events that are
wholly irrelevant to any claim that the orders appealed from should be reversed.
Her so-called brief is seventeen pages long and lacks the form and substance of an
appellate brief. See Fed. R. App. P. 28(a). Only in a few scattered lines does she
come close to arguing for reversal by challenging the statement of the district judge
No. 04-4337 Page 3
that her filings on August 10 were her brief, a statement that she says “is false.”
She then contends that that her failure to file an appropriate brief should be
excused under Rule 60(b)(6). We think Rule 60(b)(1), dealing with excusable
neglect, is the appropriate guideline, for 60(b)(6) is a catchall provision that does
not include grounds already covered in 60(b)’s other sections. Brandon v. Chicago
Bd. of Educ., 143 F.3d 293, 295–96 (7th Cir. 1998). The Supreme Court has said
that the factors to be considered in an excusable neglect argument are the potential
prejudice to the movant, the length of the neglect, the reason for the neglect,
including whether it was within the movant’s control, and whether the movant
acted in good faith. Pioneer Inv. Servs. v. Brunswick Assoc., 507 U.S. 380, 395
(1993); Telesphere Communications v. 900 Unlimited, Inc., 177 F.3d 612, 616 (7th
Cir. 1999).
We agree with Ericson that the district court erred by construing her August
10 submissions as an inadequate attempt at an opening brief. It appears that she
was simply attempting to follow both the district court’s and bankruptcy court’s
orders by filing those items with the district court on that date. But that does not
end the matter because she still did not file a brief by August 13, the district court’s
final deadline.
In evaluating this failing, we consider two factors that courts weigh heavily
when reviewing dismissals for failure to prosecute: the litigant’s past history of
dilatory or disrespectful conduct, and whether or not the district court warned the
truant litigant that such behavior would lead to a dismissal. See Tango Music, LLC
v. DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir. 2003); Telesphere, 177 F.3d at
612; In re Scheri, 51 F.3d 71, 74–75 (7th Cir. 1995); Ball v. City of Chicago, 2 F.3d
752, 759–60 (7th Cir. 1993). Ericson’s misbehavior in the bankruptcy court is well-
documented in the record, but whether she received a warning is a more
complicated question. In this circuit, a district court must warn a pro se litigant
before dismissing her case. In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.
1995). Yet Ericson argues that she was not warned because she never received the
district court’s order in the mail. The order itself directed the clerk of the district
court to mail a copy to Ericson, so we presume that it was sent. But her affidavit
states that around that time she suffered an interruption in her mail delivery.
Litigants are responsibile for maintaining communication with the court during
their lawsuits, Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005), and may not
hide behind a court’s inability to warn them of impending dismissal when their own
actions make such a warning impossible, Carey v. King, 856 F.2d 1439 (9th Cir.
1988). Here, it is unclear whether Ericson’s alleged spotty mail service was of her
own doing, but she knew that it was imperfect and that the district court would
soon rule on her motion, so she should have frequently checked in with the court in
case its order could not be delivered. Instead, she filed the motion in July and did
not follow up until December, at which point she learned that the case was
No. 04-4337 Page 4
dismissed. Ericson was not entitled to stick her head in the sand for five months
and then pull it out and cry foul when her inattention cost her the case. The
district court acted within its discretion in dismissing.
AFFIRMED.