United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia Kendall United States District Judge
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.
OF THE FACTS
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
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,
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,
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
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
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).
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.
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.
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 ...