The opinion of the court was delivered by: complaint. Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Brown & Brown, Inc. ("Brown") has appealed the dismissal by Bankruptcy Judge Eugene Wedoff of its Complaint in Adversary Proceeding against debtor Muhammad Munawar Ali ("Ali")(Bankruptcy Court Case No. 10-01401). Judge Wedoff's September 22, 2010 oral ruling was very brief indeed, with the entire transcript (attached to this opinion) occupying just a few lines more than a single page--but its very brevity underscores the legal poverty of Brown's position before this Court.
In candor, Brown's argument here is a total red herring: It accuses able Judge Wedoff with having failed to consider and rule upon its purported equitable tolling explanation for not having filed a timely adversary complaint objecting to debtor Ali's discharge or the dischargability of the debt owed to Brown (there was an October 10, 2009 deadline for the filing of any such objection). That argument is patently empty of merit, for the matters upon which Brown seeks to premise its equitable tolling notion relate to the delay in filing its complaint against Ali--not at all to Brown's total delinquency in having previously failed to seek an extension of time for such substantive filing.*fn1
It is of course obvious that any notion of equitable tolling that could excuse the nonfiling of a request for an extension of a deadline, as contrasted with excusing the failure to meet the substantive filing deadline itself, would have to be based on a special kind of showing. As our Court of Appeals has taught in Yuan Gao v. Mukasey, 519 F.3d 376, 377-78 (7th Cir. 2008), in language that might well have been written for the present case:
Equitable tolling will rarely be available when a claimant can obtain an extension of time for complying with a deadline. (Surprisingly, we can find no case that addresses this point.) Obviously in the usual statute of limitations setting he cannot obtain an extension of time--he can go to the defendant and ask the defendant to waive the statute of limitations, but he cannot force him to do so or ask the court to force him. That is not the case with a court-imposed filing deadline subject to extensions unless the claimant is somehow prevented, by circumstances that would qualify as grounds for equitable tolling, from filing for one.
That last subject is precisely what Judge Wedoff considered and spoke to in this portion of his oral ruling:
Here there was ample reason for the plaintiff in the adversary to know that there was at least a potential adversary complaint in plenty of time to bring a motion to extend the deadline. No such motion was filed.
* * * The failure to do that here is fatal. The complaint was not filed in a timely fashion. There is no basis for excusing the failure to file a timely request for an extension and, therefore, the motion to dismiss the adversary is granted.
Although Judge Wedoff did not employ the term "equitable tolling" in his ruling, that quoted holding equates squarely with a determination that no such equitable considerations were present that would rescue Brown from the consequences of its own failure.
Even before this Court, Brown's equitable tolling assertions focus on reasons that it did not possess all of the information before the deadline date that would have permitted it to file an effective adversary complaint before the clock ran out. What continues to be conspicuously absent is any assertion that, in the language of Yuan Gao, "somehow prevented [it], by circumstances that would qualify as grounds for equitable tolling, from filing for [an extension pursuant to Bankruptcy Rule 4004(b)]."
In summary, there is no question that Judge Wedoff did indeed consider and deal with the concept of equitable tolling in the proper context. And his decision was the right one--this Court has considered it de ...