NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 8, 2009*
Decided December 10, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐2674
IN THE MATTER OF: UNITED Appeal from the United States District
AIRLINES, INC., Court for the Northern District of Illinois,
Debtor. Eastern Division.
APPEAL OF: PHYLLIS CARR. No. 09 C 369
John W. Darrah,
Judge.
O R D E R
Phyllis Carr moved the bankruptcy court to allow her to file a late notice of appeal to
the district court, contending that her attorney’s illness delayed a timely filing. The
bankruptcy court refused, concluding Carr’s failure was inexcusable because she knew of
the illness and assumed the risk of relying on her attorney. The district court agreed and
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09‐2674 Page 2
affirmed the bankruptcy court’s refusal to allow a late appeal. We affirm the judgment of
the district court.
Carr filed a proof of claim in the bankruptcy case of her former employer, United
Airlines, alleging that United discriminated against her on the basis of a disability. Carr
and United settled her claim, with United agreeing to a general, unsecured pre‐petition
claim for cash against United’s estate. Under United’s bankruptcy plan, that claim
translated into shares of common stock in United, but the shares were worth less than Carr
anticipated. After she received her stock, Carr, now proceeding pro se, sought to vacate the
settlement agreement in the bankruptcy court because, according to her, she was “conned”
into signing an agreement that did not explain that her recovery in bankruptcy might be less
than the stated amount of her general, unsecured claim. Carr also asserted that her attorney
had been mentally ill and forced to give up almost all of her practice. The bankruptcy court
denied her motion to vacate.
Carr filed a notice of appeal more than 10 days after the bankruptcy court’s order
denying her request to vacate the settlement. Recognizing that the deadline for appealing
had passed, she also moved for an extension of time to appeal, invoking Federal Rule of
Bankruptcy Procedure 8002(c)(2). Carr argued that she missed the deadline because she
relied on her attorney to file a timely appeal, but the attorney failed to file because of her
mental illness. The bankruptcy court refused to extend the appeal deadline. It reasoned
that Carr’s neglect was not excusable because she knew of her attorney’s mental health
problems three months earlier when she asked the court to vacate the settlement and
therefore accepted the risk of continuing with that attorney. Carr appealed this decision to
the district court, and the district court agreed that Carr had not shown excusable neglect.
We affirm the district court’s judgment.
Under Rule 8002, a bankruptcy court can extend the 10‐day limit for filing a notice of
appeal only if the movant establishes excusable neglect. FED. R. BANKR. P. 8002(c)(2).
Excusable neglect is an equitable concept incorporating all the relevant circumstances
surrounding the party’s omission, including the reason for the default, whether it was
within the movant’s control, the prejudice to the nonmovant, and the interests of efficient
judicial administration. Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P’ship, 507 U.S. 380,
395 (1993); see Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996) (concluding that
Supreme Courtʹs definition of “excusable neglect” applies “throughout the federal
procedural domain”). We review the bankruptcy court’s decision about excusable neglect
for abuse of discretion. See In re Singson, 41 F.3d 316, 320 (7th Cir. 1994).
No. 09‐2674 Page 3
Here the bankruptcy court reasoned that Carr’s reliance on her attorney to file a
timely appeal was not excusable because Carr knew three months earlier that her attorney
was ill and scaling back her caseload. Like any client, Carr is accountable for the
inattentiveness of her attorney. See Easley v. Kirmsee, 382 F.3d 693, 699‐700 (7th Cir. 2004);
Tango Music LLC v. DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir. 2003). Aware that her
lawyer’s reliability was questionable, Carr remained with that lawyer, a decision that was
entirely within her control. And, as the bankruptcy court found, Carr articulated no reason
for her late filing other than the illness known to her when she filed her pro se motion to
vacate three months earlier. Under these circumstances, the bankruptcy court did not abuse
its discretion in declining to allow a tardy appeal. See Raymond v. Ameritech Corp., 442 F.3d
600, 607‐08 (7th Cir. 2006) (no excusable neglect where delay was attributable entirely to
factors within movant’s control); In re Kmart, 381 F.3d 709, 715 (7th Cir. 2004) (same).
AFFIRMED.