Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McDuffie v. Thomas

United States District Court, N.D. Illinois, Eastern Division

March 29, 2018

DANIEL McDUFFIE, Appellant-Plaintiff,
v.
JOSEPH THOMAS, Appellee-Defendant.

          MEMORANDUM OPINION AND ORDER

          Hon. Virginia Kendall United States District Judge

         On December 20, 2016, Daniel McDuffie filed a Notice of Appeal to the District Court challenging the judgement entered against him in an adversary case before a bankruptcy court. (Adv. No. 16-00147, Dkt. No. 29). The Clerk assigned the appeal to this Court on December 21, 2016. (Dkt. No. 1). Pursuant to Rule 8009 of the Federal Rules of Bankruptcy Procedure, McDuffie was required to file and serve the appellee designation of the items to be included in the record on appeal and a statement of the issues to be presented within 14 days of his notice of appeal becoming effective. On January 30, 2017, the Court dismissed the appeal for failure to file an appellate brief as ordered. Four months after the dismissal, on May 15, 2017, McDuffie filed a pro se Motion to Vacate the January 30, 2017 order dismissing his appeal. (Dkt. No. 8). McDuffie's Motion to Vacate is denied for the following reasons.

         STATEMENT OF THE FACTS

         On or about June 7, 2012, Joseph Thomas and Daniel McDuffie executed a Lease with Purchase Option for property located at 9615 South Bell Avenue, Chicago, Illinois. (Dkt. No. 12 at ¶ 15). Per the terms of the lease, McDuffie agreed to pay Thomas monthly rent to live in the property and purchased an exclusive option to buy the property before June 6, 2014 at certain terms set forth in the agreement. Since 2012, the parties have engaged in various disputes, often before a court, over the terms of the agreement and use of the property.

         On May 28, 2015, Thomas filed a Voluntary Petition for Bankruptcy pursuant to Chapter 7, Title 11 of the United States Code in the United States Bankruptcy Court for the Northern District of Illinois. (See 15-BK-18654). In his petition, Thomas listed McDuffie as a creditor holding unsecured nonpriority claims. (Id. at Dkt. 22). On March 3, 2016, McDuffie filed Adversary Case No. 16-00147 against Thomas before the Honorable Judge Black in the United States Bankruptcy Court for the Northern District of Illinois. McDuffie's Adversary Complaint sought an order finding that certain debt allegedly owed to him by Thomas was obtained by fraud and, therefore, non-dischargeable in bankruptcy. (Adv. No. 16-00147, Dkt. No. 1). McDuffie also sought judgment against Thomas in the amount of over $152, 000. (Id.)

         On December 12, 2016, Judge Black held a trial in the adversary case and entered judgment against McDuffie for the reasons stated in open court. (Id. at Dkt. No. 27). The next day, the bankruptcy court presiding over Thomas' Chapter 7 petition entered an Order of Discharge precluding McDuffie and other claimed creditors from attempting to collect debts from Thomas personally. (15-BJ-18654, Dkt. No. 114). On December 20, 2016, McDuffie filed a Notice of Appeal to the District Court in the adversary case. (Adv. No. 16-147, Dkt. No. 29). In the Notice of Appeal, McDuffie indicated that he had fired his counsel from the adversary case, Anthony Andrews, and would proceed with his appeal pro se. (Id.) The clerk's docket entry that day notified McDuffie that the Designation of Record was due by January 3, 2017 and Transmission of Record no later than January 19, 2017. (Id.)

         The appeal was assigned to this Court on December 21, 2016. (Dkt. No. 1). On December 22, 2017, the Court entered an Order directing McDuffie to file an appellate brief by January 23, 2017 and Thomas to file a response brief by February 6, 2017. (Dkt. No. 4). The Order reminded the parties:

“[B]riefing will proceed in accordance with Rule 8009 of the Bankruptcy Rules. If the appellant fails to file a timely brief, this appeal will be dismissed for want of prosecution, and if the appellee fails to file a timely brief, the court will proceed without the benefit of its views.”

         The same day, the Court mailed a letter with an attorney appearance form to the parties' counsel in the underlying adversary case. (Dkt. Nos. 2-3). Andrews did not file an appearance on behalf of McDuffie. Despite stating in his Notice of Appeal that he planned to proceed pro se, McDuffie did not file a pro se appearance at that point.

         McDuffie failed to file an appellate brief by January 23, 2017. Accordingly, on January 30, 2017, the Court dismissed the appeal for failure to file an appellant brief. (Dkt. No. 6). On February 27, 2017, the Final Closing Order dated January 30 was entered on the bankruptcy court's docket in the underlying adversary case. About one week later on March 8, 2017, McDuffie filed a pro se appearance in this case. On May 15, 2017, McDuffie filed a four-paragraph Motion to Vacate the January 30 Order in this Court. (Dkt. Nos. 7-8). In the Motion, McDuffie claims he “did not receive a briefing schedule explaining when the Appellant's Brief was due and did not receive any documents explaining the procedure for appealing a bankruptcy decision or judgment.” (Dkt. No. 8 at ¶ 3). He argues also that “he has a meritorious case and any failure to adhere to appellate procedures was inadvertent and not occasioned by a lack of due diligence.” (Id. at ¶ 4).

         McDuffie failed to timely file documents with the bankruptcy clerk as well. McDuffie failed to file a Designation of Record on Appeal and/or Statement of Issues by January 3, 2017 as directed. McDuffie did not file a Designation or Statement with the bankruptcy clerk until January 31, 2017-the day after this Court dismissed his appeal. (Id. at Dkt. 37). Moreover, the “Designation of Record on Appeal and Statement of Issues” he filed attached as exhibits his complaint and excerpts of Thomas' petition but did not provide a transcript or statement of proceedings in the adversary case. (Id.). McDuffie blamed his failure to obtain the transcription on “extreme difficulty” in dealing with the court reporter. (Id. at 2). As a result, to this date, this Court has received no record of the underlying proceedings from which McDuffie appeals.

         Thomas' Response to McDuffie's Motion to Vacate recites verbatim the facts stated in his Answer to the Adversary Complaint filed with Judge Black. Thomas's Response recounts the parties' litigation history and argues that McDuffie has used the same allegations of fraud brought in the underlying Adversary Case to avoid making rent payments to Thomas and to continue living in the property subject to the parties' lease for free. (Dkt. No. 12 at ¶ 31). Thomas urges the Court to “not indulge McDuffie's further abuse of process” by granting his Motion to Vacate. (Id.)

         DISCUSSION

         McDuffie cites no rule in his motion. Nonetheless, the Court treats McDuffie's Motion to Vacate as a motion for relief from judgment under Fed.R.Civ.P. 60(b). See Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (district court properly reviewed motion to vacate dismissal for want of prosecution that cited no specific rule under Rule 60(b).) “Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances.” Id. at (quoting Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir.2005)). Vacating a judgment under Rule 60(b) is permissible for certain enumerated reasons including mistake, excusable neglect, newly discovered evidence, and fraud. See Fed. R. Civ. P. 60(b). McDuffie's claims that he did not receive the briefing schedule and that his failure was inadvertent and not due to any lack of diligence fall under “excusable neglect.” See, e.g., In ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.