In the matter of: KMART CORPORATION, et al., Debtors-Appellees, Appeal of: WILHEMINA SIMMONS, Appellant.
No. 03-4084
United States
ARGUED APRIL 9, 2004—DECIDED AUGUST 27, 2004
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges. KANNE, Circuit Judge.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 96—Amy J. St. Eve,
I. Background
Kmart, Corp. filed a petition for relief under Chapter 11 of the Bankruptcy Code on January 22, 2002 (“Petition Date“). On March 26, 2002, the bankruptcy court entered an order establishing July 31, 2002 as the deadline for filing proofs of claim (“Original Bar Date” or “Bar Date“). See
Appellant Simmons suffered a fall in a Kmart store in St. Croix, U.S. Virgin Islands, on December 13, 2001. She sought to pursue a $750,000 pre-Petition Date personal injury claim against Kmart based upon her accident, which she asserts was caused by a malfunctioning store door. Notice of the Bar Date was sent to Simmons at her address as listed in the files of Kmart‘s third-party claims administrator, Trumbull Services. The mailing was never returned to Kmart as “undeliverable.” However, Simmons asserts that she never personally received the notice because the address used by Trumbull was not her actual mailing address. Nonetheless, it is undisputed that Simmons‘s attorney had actual knowledge of the Original Bar Date, as her counsel had filed timely proofs of claims for over two dozen other Kmart creditors.
Despite counsel‘s awareness of the Original Bar Date, Simmons‘s proof of claim
Moreover, although the claim form recommended that claimants include a self-addressed stamped envelope so that Trumbull could mail verification of its receipt of the form to the claimant, Simmons‘s attorney did not do so. Nor did counsel make any follow-up phone calls to ensure that the proof of claim was timely received. As a result, Simmons (through counsel) did not realize that her filing was late until September 23, 2002, when a notice from Kmart was received, informing Simmons that her claim was now barred. For unknown reasons, Simmons‘s attorney then waited until October 21, 2002 to move under
Evaluating whether Simmons‘s late filing was the result of “excusable neglect” as required under
Simmons again tried to avoid the effect of her late filing by moving to have her claim covered by the Supplemental Bar Date. On February 5, 2003, the court reasoned that because her attorney had actual notice of the Bar Date, Simmons could not properly be considered one of the limited set of creditors to whom the Supplemental Bar Date applied. The court denied Simmons this “second bite of the apple.”
The district court consolidated her subsequent appeals and ultimately upheld both of the bankruptcy court‘s rulings. For the following reasons, we affirm.
II. Analysis
Our de novo review of the district court‘s decision to affirm the bankruptcy court allows us to assess the bankruptcy court‘s judgment anew, employing the same standard of review the district court itself used. Corporate Assets, Inc. v. Paloian, 368 F.3d 761, 767 (7th Cir. 2004) (citing Frierdich v. Mottaz, 294 F.3d 864, 867 (7th Cir. 2002)). The bankruptcy court‘s refusal to deem Simmons‘s claim timely filed will be overturned only in extreme cases, when the bankruptcy court has abused its discretion. See In re Singson, 41 F.3d 316, 320 (7th Cir. 1994). Likewise,
A. Motion to Deem Simmons‘s Claim Timely Filed
As we noted above, because Simmons‘s proof of claim was filed one day after the Original Bar Date, she moved to have her claim deemed timely filed under
1. Danger of prejudice to Kmart
The bankruptcy court determined that allowing Simmons‘s claim would cause prejudice to Kmart. Simmons aptly points out that Kmart‘s first amended plan of reorganization was filed on February 25, 2003 and confirmed on April 23, 2003, nearly eight months after the Original Bar Date. Therefore, the debtor Kmart, who had received Simmons‘s proof of claim on August 1, 2002, was on full notice of her claim and could have easily taken it into account when it drafted its reorganization plan (and in structuring any economic models used to create the plan). Cf. O‘Brien Envtl. Energy, Inc. v. NRG Energy, Inc. (In re O‘Brien Envtl. Energy, Inc.), 188 F.3d 116, 126 (3d Cir. 1999) (laying out factors for assessing prejudice under Pioneer, including whether the debtor had knowledge of the claim at the time the reorganization plan was filed or confirmed, and whether the late filing would disrupt the plan or economic models used in the plan‘s development). Likewise, because the Supplemental Bar Date was in the offing at the time of Simmons‘s
The bankruptcy court did not address these particular facts in its Pioneer analysis, but instead emphasized Simmons‘s delay in bringing the
To conclude, although we do not find the bankruptcy court‘s reasoning overwhelmingly persuasive, because, at a minimum, reasonable minds could disagree as to the potential for harm to Kmart as a result of Simmons‘s delay, and given that it was Simmons‘s burden to prove a lack of prejudice to Kmart and not the inverse, we cannot say the bankruptcy court‘s finding as to this Pioneer factor was clear error.
2. Length of the delay and its impact on judicial proceedings
Simmons‘s proof of claim was only one day late, a fact which seems to support the grant of her
Simmons makes much of three late-filed administrative claims also involved in the Kmart Chapter 11 proceedings, with delays somewhat similar to Simmons‘s, which the bank-ruptcy court allowed. However, Simmons failed to include the court‘s unpublished orders addressing these claims in her appendix to this court, and as such, we cannot verify the veracity of her argument. Cf., Le Beau v. Libby-Owens-Ford Co., 727 F.2d 141, 147 (7th Cir. 1984) (parties relying on an unpublished order included such in appendix); Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 763 n.4 (7th Cir. 1982) (same). Hence, we do not address it further except to say that these claims are distinguishable from Simmons because, according to her own brief, the three administrative claimants’
Simmons also points to the fact that at the time of her
Regardless, bar orders serve an indisputably integral purpose in facilitating reorganizations. The Second Circuit put it well:
A bar order serves the important purpose of enabling the parties to a bankruptcy case to identify with reasonable promptness the identity of those making claims against the bankruptcy estate and the general amount of the claims, a necessary step in achieving the goal of successful reorganization. . . . If individual creditors were permitted to postpone indefinitely the effect of a bar order so long as adversary proceedings were pending, the institutional means of ensuring the sound administration of the bankruptcy estate would be undermined.
In re Hooker Invs., Inc., 937 F.2d 833, 840 (2d Cir. 1991). Therefore, we conclude that the bankruptcy court‘s finding as to the length of delay and its concomitant negative impact on judicial proceedings was not clear error.
3. Reason for the delay
Simmons states in her brief to this court that “[t]he reason for the delay . . . was nothing more than an innocent mistake in mailing the claim.” In particular, Simmons points to the mail clerk‘s inadvertent selection of second-day delivery (rather than next-day) on the mailing instructions. Kmart counters that the mail clerk was forced to choose the second-day delivery option because the clerk arrived—whether by his or her own dereliction of duty or otherwise—at the post office after two o‘clock in the afternoon and next-day delivery could not be guaranteed. Under either scenario, Simmons correctly characterized it as a reason for the delay. But we think it a poor one.
Three of our sister circuits have held that fault in the delay is the preeminent factor in the Pioneer analysis. See United States v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004) (quoting City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994) (“fault in the delay remains a very important factor—perhaps the most important single factor—in determining whether neglect is excusable.“)); Graphic Communications Int‘l Union v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir. 2001) (“We have observed that the four Pioneer factors do not carry equal weight; the excuse given for the late filing must have the greatest import.” (internal quotation marks and bracket omitted)); Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000) (same). Although we have not yet similarly held, see United States v. Brown, 133 F.3d 993, 996 (7th Cir. 1998), in this case, the factor is immensely persuasive.
First, Simmons‘s counsel left the filing of her proof of claim until the latest possible time. Second, Simmons‘s attorney delegated the mailing responsibilities to a clerk. And counsel took no steps to follow up with the clerk to ensure that the proper procedures were used. Third, and as we referenced above, Simmons could have taken at least two simple measures to verify that her proof of claim arrived on time. We agree with the bankruptcy and district courts—the delay in filing Simmons‘s proof of claim was entirely within her control. Put more directly, it was her own fault.2 The bankruptcy court‘s finding as to this factor was not clear error.
4. Simmons‘s good faith
There is no dispute that Simmons attempted to file her proof of claim on time.
To summarize our findings, the bankruptcy court‘s factual determinations as to each of the Pioneer factors it analyzed were not clear error. As such (and because the fourth factor, good faith, which was not addressed by the bankruptcy court, neither strongly hinders or helps Simmons‘s cause), we conclude that the court‘s decision to deny Simmons‘s
B. Motion to Apply the Supplemental Bar Date to Simmons‘s Claim
As required, Kmart initially sent notice of the Original Bar Date to approximately one million potential claimants, including those listed on Kmart‘s schedules of liabilities (which are filed with the bankruptcy court) and numerous others, who were unlisted.4 After Kmart learned that it had inadvertently failed to send notice of the Bar Date to approximately 4,000 claimants, most of whom did not ap-
pear on Kmart‘s schedules, Kmart petitioned the bankruptcy court to establish the Supplemental Bar Date in an effort to rectify any due process problems—namely, that claimants without notice of Kmart‘s bankruptcy and the Bar Date might have irretrievably forfeited their rights. The bankruptcy court did so.
After Simmons‘s
Given our circumscribed review, we conclude without difficulty that the bankruptcy court did not abuse its discretion. In that Simmons was not listed on any of Kmart‘s schedules and never physically received notice of the Bar Date from the debtor (we assume arguendo), she was like many of the creditors to whom the Supplemental Bar Date applied. Nonetheless, she is distinguishable in one key respect. Simmons‘s counsel had actual knowledge of the Original Bar Date. And the attorney‘s knowledge is chargeable to the client. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 92 (1990). See also Pioneer, 507 U.S. at 396-97; In re Longardner & Assocs., Inc., 855 F.2d 455, 459 (7th Cir. 1988). In addition and as we noted above, the Supplemental Bar Date was established to alleviate potential due process problems. But because Simmons and her attorney both had knowledge of the Original Bar Date, there was no such due process concern with respect to Simmons. The bankruptcy court‘s reasoning was sound, and its ruling was not an abuse of discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—8-27-04
Notes
Enlargement.
(1) In General. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. (emphasis added)