Brandi McGhee v. Marilyn Marshall

NONPRECEDENTIAL DISPOSITION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 2, 2021*
Decided April 13, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-2544
BRANDI MCGHEE, Appeal from the United States District
Debtor-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v. No. 19 C 8001
MARILYN O. MARSHALL, Robert W. Gettleman,
Trustee-Appellee. Judge.
ORDER
After the district court gave Brandi McGhee more than four extra months to file
the brief in her bankruptcy appeal, it dismissed the appeal for failure to prosecute when
McGhee missed that extended deadline with no explanation. McGhee unsuccessfully
moved the court to reopen the case, asserting that she did not know the court was open
during the COVID-19 pandemic. But because McGhee was responsible for monitoring
* The appellee was not served with process in the district court and is not
participating in this appeal. We have agreed to decide the case without oral argument
because the brief 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. 20-2544 Page 2
her case’s docket, which stated that the court was open and her briefs were due, the
district court did not abuse its discretion by dismissing the case or refusing to reopen it.
McGhee filed two Chapter 13 bankruptcy petitions in a year, and the bankruptcy
court dismissed both cases for unreasonable delay in pursuing a bankruptcy plan. In the
first case, the trustee moved for dismissal, arguing that McGhee unreasonably delayed
seeking a timely confirmation of a bankruptcy plan. The bankruptcy court granted the
motion and dismissed the case for unreasonable delay. McGhee did not appeal. Then
four months later, she filed another Chapter 13 petition. The trustee eventually moved
to dismiss this petition on the ground that McGhee had unreasonably delayed the case
by failing to address objections to her plan for paying off her debts. Several months
later, and after several continuances, McGhee’s counsel informed the court that McGhee
had not authorized the payments needed to resolve objections to the plan’s
confirmation. The court then granted the motion to dismiss for unreasonable delay.
McGhee appealed the second dismissal to the district court, which eventually
dismissed the appeal for failure to prosecute. In February 2020, when McGhee’s
opening brief was two weeks overdue, she moved pro se for more time to file her brief
and asked for a hearing on her motion in early March. McGhee did not appear at her
motion hearing. The court granted the motion anyway, extending her briefing deadline
over nine weeks, from early February to mid-April. As the new deadline approached,
and the COVID-19 pandemic developed, the court issued a series of general orders.
These orders—visible on McGhee’s docket—extended deadlines in all civil cases for
nearly three months because of the COVID-19 emergency. As a result, McGhee’s brief
was due in late June. The general orders warned that they did “not affect the authority
of judges to enter orders in any civil or criminal cases,” and they instructed the Clerk to
mail the orders to pro se litigants. The June deadline passed with no action from
McGhee. Then 21 days later, with still no communication or filings from McGhee, the
district court dismissed the case sua sponte for failure to prosecute.
McGhee unsuccessfully moved the court to reopen her case. She stated that the
COVID-19 pandemic had distressed her and she did not realize that the court was open
during the public-health emergency. Along with the motion, she filed the overdue brief,
which argued that the bankruptcy court’s dismissal should be overturned because of
her attorney’s incompetence and misinformation from a creditor. The district court
denied the motion.
No. 20-2544 Page 3
McGhee now argues that the district court wrongly dismissed her appeal
because it did not notify her that the court was open during the COVID-19 pandemic.
But McGhee, like all litigants, was responsible for monitoring her case by periodically
checking the docket. See Shaffer v. Lashbrook, 962 F.3d 313, 317 (7th Cir. 2020). Had she
done so, she would have seen the docket entries for the COVID-19 general orders. (We
will assume that she did not receive her mailed copies.) By reading them, she would
have learned about the pandemic’s effect on court operations, the extension of briefing
deadlines, and that the courts could still decide cases. McGhee thus cannot plead
excusable ignorance on the ground that she assumed the court was closed rather than
checking for herself.
McGhee also maintains that, in light of the turmoil and distress from the COVID-
19 pandemic, the district court should have granted her motion to reopen. We review
the refusal to reopen a dismissed case for abuse of discretion, and we will reverse “only
when no reasonable person could agree” with the denial. Cincinnati Life Ins. Co. v.
Beyrer, 722 F.3d 939, 953 (7th Cir. 2013) (internal quotation omitted). Although we
recognize the challenges that COVID-19 poses for litigants, the district court was not
required to treat the pandemic as an automatic excuse for the missed deadline here. To
begin, McGhee received her requested two-month extension, and then to help adjust to
the pandemic, she received further, and unrequested, extensions totaling 11 weeks.
Moreover, McGhee gave the district court no reason why COVID-19 prevented her
from checking the docket (to see that the court remained open) or requesting more time
if the 11-week extension was insufficient. Under these circumstances, the district court
acted within its broad discretion in refusing to reopen the case.
Finally, McGhee urges us to find that the bankruptcy court erred by dismissing
her case for unreasonable delay. But we have jurisdiction to review only the orders
under appeal: the district court’s dismissal for failure to prosecute and denial of the
motion to reopen. See United States v. Bonk, 967 F.3d 643, 648 (7th Cir. 2020). McGhee
did not (and could not without special authorization, 28 U.S.C. § 158(d)(2)), appeal the
bankruptcy court’s decision to this court, so we do not review it.
The district court’s judgment is AFFIRMED.