Downs v. Federal National Mortgage Association

Filing 12

MEMORANDUM AND ORDER, The Court DISMISSES this appeal with prejudice pursuant to Federal Rule of Bankruptcy Procedure 8003(a)(2) and Federal Rule of Civil Procedure 41(b) for failure to comply with a court rule/order and DIRECTS the Clerk of Court to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 2/19/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE:
KIM DOWNS,

Case No. 14-cv-1386-JPG

Appellant/Debtor.
MEMORANDUM AND ORDER
This matter comes before the Court for case management purposes. In an order dated
January 7, 2015 (Doc. 3), the Court noted that appellant debtor Kim Downs had not filed with the
Bankruptcy Clerk a designation of the items to be included in the record on appeal and a statement
of the issues to be presented as required by Federal Rule of Bankruptcy Procedure 8009(a)(1)(A).
The Court further noted that she had neither paid the $298 filing fee required by 28 U.S.C.
§ 1930(b) and (c) nor filed a motion for leave to proceed in forma pauperis. In light of these
deficiencies, the Court ordered Downs to show cause on or before January 21, 2015, why the Court
should not dismiss this case with prejudice pursuant to Federal Rule of Bankruptcy Procedure
8003(a)(2) and/or Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or for failure
to comply with a court rule.
Downs’ response to the order to show cause (Doc. 6) was filed in the wrong case and did
not contain a certificate of service adequately attesting to service on the parties in this case as
required by Federal Rule of Bankruptcy Procedure 8011(b). Specifically, the certificate attached
to Downs’ response did not indicate the date and method of service on all of the parties in this case
as required by Federal Rule of Bankruptcy Procedure 8011(d)(1). Therefore, Court struck
Downs’ response, allowed her additional time to refile her response, and ordered that her response
must include a certificate of service that complies with Federal Rule of Bankruptcy Procedure
8011(d)(1) and that attests to service on all interested parties in this case. The Court further

warned Downs that if her response failed to include a certificate of service that complied with
Federal Rule of Bankruptcy Procedure 8011(d)(1), the Court might dismiss this appeal with
prejudice without further warning pursuant to Federal Rule of Bankruptcy Procedure 8003(a)(2)
and/or Federal Rule of Civil Procedure 41(b) for failure to comply with a court rule/order.
Downs filed her response again (Doc. 10), but her certificate of service is still inadequate.
While she includes the names of all interested parties to this case, she does not specify the date or
method of service on those parties as required by Federal Rule of Bankruptcy Procedure
8011(d)(1).
The Court has further reviewed the response itself and finds it does not adequately respond
to the order to show cause why this case should not be dismissed for failure to pay the $298 filing
fee or to file a motion for leave to proceed in forma pauperis in this case. Downs states that she
filed a motion for leave to proceed in forma pauperis in her other bankruptcy appeal, Case No.
14-cv-3-JPG, but that motion does not address her obligation to pay the filing fee in this case. She
filed two notices of appeal and must therefore pay, or be excused from paying, two filing fees.
Because Downs has failed to include an adequate certificate of service with her response as
ordered by the Court and has failed to pay the required $298 filing fee or file a motion for leave to
proceed in forma pauperis in this case, the Court will dismiss this appeal with prejudice pursuant
to Federal Rule of Bankruptcy Procedure 8003(a)(2) and/or Federal Rule of Civil Procedure 41(b)
for failure to comply with a court rule/order. The Court realizes this is a harsh remedy, especially
when imposed on a pro se litigant, but the Court takes this course of action having considered
Downs’ history of failing to obey Court rules and/or orders in this case and her earlier bankruptcy
appeal, Case No. 14-cv-3-JPG.
In that case, the Court erroneously docketed Downs’ second notice of appeal on the docket
of the first appeal rather than transmitting the notice to the Bankruptcy Court to open a second
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appeal (Case No. 14-cv-3-JPG, Doc. 7). The Court notified the parties that it would belatedly
transmit the second notice of appeal for opening of a second bankruptcy appeal and clarified the
two distinct issues to be addressed in the respective appeals (Case No. 14-cv-3-JPG, Docs. 21 &
23). These orders provided Downs notice that there were two appeals involving two distinct
issues proceeding at the same time. Her current plea of confusion is belied by the explanations in
those orders, especially in light of the fact that she has demonstrated in her filings that she is
competent to understands relevant issues, make coherent arguments, and cite relevant caselaw in
support of her positions.
Also in Downs’ earlier case, she failed to follow various rules regarding designation of the
record on appeal, statement of the issues to be presented on appeal, filing the appellate brief and
service of filings on other parties in the case. The Court noted these deficiencies and pointed out
the rules that set forth the requirements (Case No. 14-cv-3-JPG, Doc. 23). Nevertheless, Downs
continued to make the same mistakes in this case. Furthermore, when the Court pointed out
similar errors again in this case (Docs. 3 & 7), Downs failed to correct them.
As the Court noted in her earlier case, Downs has demonstrated, and continues to
demonstrate, an utter disregard for the Court’s procedural requirements. Although the Court must
construe Downs’ pro se filings liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972); Hudson v.
McHugh, 148 F.3d 859, 864 (7th Cir. 1998), she is not exempt from court rules because of her pro
se status, Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001); see Members v. Paige, 140
F.3d 699, 702 (7th Cir.1998) (“[R]ules apply to uncounseled litigants and must be enforced.”).
Importantly, many of the rules and orders Downs has disregarded are those designed to ensure
notice to opposing parties of the issues in the case and the arguments Downs is making in support
of her positions on those issues. Her failure to comply with rules and orders deprives her
opponents of their fundamental right to notice and an opportunity to be heard. The Court has
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given Downs adequate notice of her errors, has pointed her to the rules that she must follow to cure
them, and has warned her that failure to follow those rules may result in dismissal of her case.
She has not heeded those warnings, and in the Court’s judgment dismissal is an appropriate course
of action.
For the foregoing reasons, the Court DISMISSES this appeal with prejudice pursuant to
Federal Rule of Bankruptcy Procedure 8003(a)(2) and Federal Rule of Civil Procedure 41(b) for
failure to comply with a court rule/order and DIRECTS the Clerk of Court to enter judgment
accordingly.
IT IS SO ORDERED.
DATED: February 19, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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