Winston Thompson, III v. Anita White

Case: 20-60358 Document: 00515583227 Page: 1 Date Filed: 09/29/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 29, 2020
No. 20-60358 Lyle W. Cayce
Summary Calendar Clerk
In the Matter of: Winston James Thompson, III, doing
business as Thompson & Associates,
Debtor,
Winston James Thompson, III, doing business as Thompson &
Associates,
Appellant,
versus
Anita White; BankPlus,
Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CV-179
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60358 Document: 00515583227 Page: 2 Date Filed: 09/29/2020
No. 20-60358
Appellant Winston James Thompson, III, d/b/a Thompson &
Associates appeals the district court’s denial of his Rule 60(b)(1) motion
following the district court’s dismissal of his bankruptcy appeal. We
AFFIRM.
I.
In 2010, Thompson filed a Chapter 7 bankruptcy petition. Thompson,
however, failed to list Appellee Anita White or her state-court claim against
him on his bankruptcy schedules, even though, in 2009, White had obtained
a clerk’s entry of default for her claim against him. Later in 2010, the
bankruptcy court granted Thompson a discharge of all his pre-petition debts
and closed the case. In 2012, White obtained a default judgment against
Thompson for her state-court claim, and in 2018, Thompson filed a motion
to reopen his closed bankruptcy case, which the bankruptcy court denied.
Thompson, proceeding pro se, appealed the bankruptcy court’s decision to
the district court.
When the record on appeal had been filed on the district court’s
docket and notice of that fact had been given to Thompson, his brief was due
within thirty days. Fed. R. Bankr. P. 8018(a)(1). Thompson failed to file
his brief. The district court then entered a show-cause order requiring
Thompson to respond on or before October 4, 2019, explaining why the
appeal should not be dismissed for want of prosecution. Thompson did not
respond, and on October 10, 2019, the appeal was dismissed without
prejudice for failure to prosecute. Following the dismissal, Thompson
obtained counsel who filed a Rule 60(b)(1) motion. The district court denied
the Rule 60(b)(1) motion on the basis of Thompson’s “gross carelessness”
in failing to check the status of his case. Thompson filed a timely notice of
appeal.
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II.
We review a district court’s denial of a Rule 60(b)(1) motion for abuse
of discretion. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir.
1993).
On appeal, Thompson argues that he did not receive the mailed
notices to file his brief or respond to the show-cause order because, “due to
a staffing change,” one of the many post-office boxes he maintains “was not
being checked.” Thompson characterizes this failure to check his post-office
box (and the status of his case) as one of “mistake, inadvertence, and/or
excusable neglect.” We disagree.
Federal Rule of Civil Procedure 60(b)(1) permits a district court to
relieve a party from a final judgment because of “mistake, inadvertence,
surprise, or excusable neglect.” As the district court explained, however,
“[g]ross carelessness” is an “insufficient bas[i]s for Rule 60(b)(1) relief.”
Additionally, as we have previously held, “a party has a duty of diligence to
inquire about the status of [his] case.” Trevino v. City of Fort Worth, 944 F.3d
567, 571 (5th Cir. 2019) (internal quotations and citation omitted). We agree
with the district court that “[t]his is a case of gross carelessness; Thompson
has not shown excusable neglect.” He failed to ensure that someone was
checking the post-office box he provided, and he failed to check the status of
his case. Indeed, Thompson learned that his appeal had been dismissed only
when his attorney in the underlying bankruptcy proceeding advised him as
such. And by then, seven months had passed from when Thompson first filed
the appeal.
Finally, Thompson argues that the seven factors articulated in Edward
H. Bohlin Co. v. Banning Co. for considering a Rule 60(b) motion weigh in his
favor. We disagree. As the district court observed, even after a consideration
of those factors, Thompson is not entitled to relief. Indeed, we specifically
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No. 20-60358
stated in Edward H. Bohlin Co. that “[g]ross carelessness, ignorance of the
rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.” 6 F.3d
at 357. And as discussed above, Thompson’s case is one of “gross
carelessness.”
As the district court noted, Thompson has had a series of
shortcomings that began over ten years ago when he failed to answer White’s
state-court complaint. The bankruptcy court order appealed from in this case
rejected Thompson’s attempt to reopen a bankruptcy case that closed in
2010. And the bankruptcy case closed after White obtained a default in 2009
that Thompson failed to disclose in the first place. We agree with the district
court that “[t]his is an old dispute, and there is a need for finality.”
III.
The judgment of the district court is AFFIRMED.
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