Opinion
CASE NO. 18-11120
08-06-2018
IN THE MATTER OF: DONALD EDWARD JAMES Debtor
NOT FOR PUBLICATION DECISION AND ORDER DENYING MOTION TO RECONSIDER
On August 06, 2018
The court's order of July 20, 2018, dismissed this case because the debtor failed to respond to the order of June 19, 2018. That order identified concerns about debtor's eligibility for relief under title 11, gave him an opportunity to properly demonstrate that eligibility and warned that the failure to do so would result in dismissal, without further notice or hearing. When the debtor did not respond within the time required, the court did what it said it would and dismissed the case.
The debtor, who is proceeding pro se, has now filed a motion asking the court to reconsider the dismissal of this case. The motion makes no effort to explain why the debtor did not respond to the order of June 19. It simply states that the debtor had completed the counseling prior to filing, has now filed the required certificate, and is ready to move forward with his bankruptcy case.
The motion has not been accompanied by a brief in support thereof as required by the local rules of this court. N.D. Ind. L.B.R. B-9023-1.
Since the debtor is proceeding pro se, the motion should be construed liberally, but that liberality is not a dispensation from procedural rules, legal standards for relief, or court imposed deadlines. U.S. Bank Nat'l Ass'n v. Dunn, 2013 WL 1222054 *1 (N.D. Ill. 2013). The order of dismissal constitutes a final order; so, the motion appears to be based upon Rule 60(b) of the Federal Rules of Civil Procedure and, in particular, Rule 60(b)(1) which authorizes relief from a final judgment due to a mistake, inadvertence, surprise or excusable neglect. See, Fed. R. Bankr. P. Rule 9024. See also, Fed. R. Bankr. P. Rule 9014, 7055(c); Fed. R. Civ. P. Rule 55(c) (default judgments may be set aside under Rule 60(b)). The court has wide discretion in deciding such motions. Zuelzke Tool & Engineering Co. v. Anderson Die Castings, Inc., 925 F.2d 226, 228-29 (7th Cir. 1991). The moving party has the burden of showing:
1) good cause for the default;All of these requirements must be met or the motion may be denied. Pretzel & Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 46-47 (7th Cir. 1994).
2) quick action to correct the default, and;
3) a meritorious defense. Zuelzke, 925 F.2d at 229. See also, Nelson v. City Colleges of Chicago, 962 F.2d 754, 755-56 (7th Cir. 1992).
The debtor's motion does not demonstrate any cause for the default, let alone good cause. He offers no explanation, whatsoever, for his failure to respond to the court's order to show cause. That, by itself, is fatal. See e.g., Pretzel & Stouffer, 28 F.3d at 45 (defaulting party must show good cause for default or it will not be vacated); Matter of Plunkett, 82 F.3d 738, 742 (7th Cir. 1996) (inattentiveness to litigation and missing a deadline fatal); Lee v. Wright, 1995 WL 8033823 (N.D. Ind. Nov. 8, 1995) (no explanation for failure to file answer).
The order of June 19 required the debtor to demonstrate his eligibility for relief under title 11 by filing the certificate or show cause why he should not be required to do so. The debtor did nothing. He did not file the certificate or respond in any fashion until after the court dismissed the case. Coming in now and essentially saying "here you go, I'm serious now" is too little, too late. See, U.S. Bank Nat'l Ass'n v. Dunn, 2013 WL 1222054 (N.D. Ill. 2013); In re Glover, 2011 WL 304321 *3 (Bankr. D. Col. 2011) (disregard of court orders no cause to vacate default judgment).
Furthermore, the court notes the dismissal of the case was without prejudice, see, 11 U.S.C. § 349(a), see, Rodriguez v. Washington, 1995 WL 593081 (N.D. Ill. 1995) (dismissal without prejudice gives no just cause to complain), so the debtor is free to refile at any time without any restrictions, save those which are automatically associated with filing multiple cases within a 12-month period. See, 11 U.S.C. § 362(c)(3),(4).
Debtor's motion to reconsider is DENIED.
The court notes that the debtor has failed to file the documents required by § 521(a)(1) which were due within fourteen days of the filing this case and, thus, the case would have been automatically dismissed by operation of law on August 3, 2018 - the same reason the debtor's prior case was dismissed. See, 11 U.S.C. § 521(i). --------
SO ORDERED.
/s/ Robert E . Grant
Chief Judge, United States Bankruptcy Court