In re: Prince Adesegun Fadayiro

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2006*
Decided June 1, 2006
Before
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-4327
IN RE: PRINCE ADESEGUN FADAYIRO, Appeal from the United States
Debtor. District Court for the Northern
District of Illinois, Eastern Division
PRINCE ADESEGUN FADAYIRO, No. 02 C 2483
Plaintiff-Appellant,
James B. Zagel,
v. Judge
AMERIQUEST MORTGAGE COMPANY,
Defendant-Appellee.
O R D E R
Federal prisoner Prince Adesegun Fadayiro appeals the district court’s
dismissal of his bankruptcy appeal for want of prosecution. We vacate the
dismissal and remand for further proceedings.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-4327 Page 2
This is the second time the district court has dismissed Fadayiro’s appeal
from the bankruptcy court’s unfavorable decision in his adversary action against
Ameriquest. After Fadayiro filed a petition under Chapter 7 of the bankruptcy
code, he sued Ameriquest (and other defendants not relevant here) claiming that
Ameriquest improperly foreclosed on his condominium. The bankruptcy court
dismissed the suit in December 2001 on the ground that Fadayiro had failed to
serve Ameriquest with the complaint in a timely manner. Fadayiro appealed to the
district court, which dismissed the appeal sua sponte with the explanation that his
notice of appeal did not comply with Federal Rule of Bankruptcy Procedure 8001(a).
We reversed that decision because Fadayiro had supplied all of the information
Rule 8001(a) requires, even though he did not use the precise format prescribed by
the official bankruptcy forms. Fadayiro v. Ameriquest Mortg. Co., 371 F.3d 920,
922-23 (7th Cir. 2004). Our mandate issued on July 6, 2004.
Not until December 6, however, did the court or either party take further
steps to resolve the appeal. On that day Ameriquest served Fadayiro with a motion
to dismiss for failure to prosecute. The company filed that motion one week later on
December 13, and set the matter for a hearing the very next day, December 14. At
the beginning of the hearing, Ameriquest pointed out to the district court that
Fadayiro had not yet responded to their motion. The court, however, responded:
I am going to grant this motion without the necessity of a
response. This is a case in which the appellant has failed to
adhere to virtually every rule governing these appeals, and
this is not like the prior failure, a simple failure of complete
literal conformity. This is a failure simply to pursue an
appeal; in my view, a classic case of failure to prosecute.
The court then granted Ameriquest’s motion and adjourned the hearing; it later
dismissed the appeal in a minute order that offers no further explanation.
Fadayiro principally argues that the dismissal was an abuse of discretion
because the district court’s ruling is not adequately explained and was entered
without allowing him to appear telephonically or even to respond in writing to
Ameriquest’s motion. Fadayiro insists that he should not be faulted for his inaction
because he “was only awaiting the action or directives of the district court” on how
to proceed with his appeal after we overturned the previous dismissal. Moreover,
he says, he could not go forward with the appeal until the district court resolved
several motions that were still pending at the time of the first dismissal. We review
a dismissal for failure to prosecute for abuse of discretion. Sharif v. Wellness
Intern. Network, Ltd., 376 F.3d 720, 725 (7th Cir. 2004).

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No. 04-4327 Page 3
Fadayiro is mistaken about the three motions he identifies as still pending.
Those motions were filed in the bankruptcy court, not the district court. And the
motions Fadayiro did file in the district court—one motion for appointment of
counsel and one motion to proceed in forma pauperis—were both denied.
However, Fadayiro’s argument that the district court failed to explain its
reasons for dismissing the appeal has merit. Dismissals for want of prosecution
should be limited to “extreme situations,” Maynard v. Nygren, 332 F.3d 462, 567
(7th Cir. 2003); Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir. 1998), and we
require that district courts evaluate several factors before taking that drastic step,
see Aura Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 908 (7th Cir.
2003) (citing Ball v. City of Chicago, 2 F.3d 752, 759-60 (7th Cir. 1993)). As
pertinent here, district courts should consider: (1) the frequency and magnitude of
previous noncompliance with court deadlines; (2) the effect of past inaction on the
court’s calendar and time; (3) the prejudice to the other party, if any; and (4) the
probable merit of the dismissed action. Id. (citing Ball, 2 F.3d at 759-60). These
same considerations govern our review. See Williams v. Chicago Bd. of Educ., 155
F.3d 853, 857 (7th Cir. 1998).
In once again dismissing Fadayiro’s appeal, the district court did not
undertake to analyze any but the first of these factors, at least as far as the record
before us shows. See Ball, 2 F.3d at 755 (“[R]eversal is warranted . . . if it is plain
either that the dismissal was a mistake or that the judge did not consider factors
essential to the exercise of a sound discretion.”). And as to the first factor, the court
simply asserted that Fadayiro “failed to adhere to virtually every rule governing
these appeals,” but never did the court identify which rules he transgressed. Our
review of the record discloses that, with a notable exception, it appears that
Fadayiro did what he needed to do in the district court to proceed with his appeal;
he filed with the clerk and served on Ameriquest both a designation of the items to
be included in the appellate record and a statement of the issues to be presented,
see Fed. R. Bankr. P. 8006; he entered his appearance as a pro se litigant, see Loc.
R. 83.16(b); and he kept the district court apprised of changes in his address. We
thus are left to speculate, as Ameriquest does in its brief, that the district court was
referring to its standing order requiring that “Briefs on appeal from the United
States Bankruptcy Court must be filed within 15 days of the entry of judgment by
the Bankruptcy Court.” This standing order, we note, is inconsistent with the
Federal Rules of Bankruptcy Procedure; those rules give the appellant 15 days from
the time his appeal is docketed in the district court to file an opening brief. See Fed.
R. Bankr. P. 8009(a)(1) (“The appellant shall serve and file a brief within 15 days
after entry of the appeal on the docket pursuant to Rule 8007.”). And the
distinction is not trivial; the district court did not docket Fadayiro’s appeal until two
months after the bankruptcy court’s decision became final, a period of delay that is
not uncommon in bankruptcy proceedings. See 1 BANKRUPTCY LITIGATION &

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No. 04-4327 Page 4
PRACTICE : A PRACTITIONER ’ S G UIDE § 3.20[F], at 3-80 (Thomas J. Salerno & Jordan
A. Kroops eds., 2006). Thus, we are skeptical of Ameriquest’s position that
noncompliance with the court’s standing order could support the dismissal in this
case. See In re Dorner, 343 F.3d 910, 913 (7th Cir. 2003) (“No local rule or standing
order can supersede the Federal Rules of Bankruptcy Procedure.”).
But the standing order aside, the fact remains that Fadayiro did not file a
brief, and no matter the starting time for his deadline to file, his brief was long
overdue when Ameriquest moved to dismiss. His inaction, Fadayiro explains, was
due to his waiting for further instruction from the district court as to how it would
like the litigants to proceed after we reinstated the appeal and remanded the case
back to the district court. We do not find this explanation to be unreasonable, nor
an indication of intentional delay or “contumacious conduct.” See Maynard, 332
F.3d at 467. When we remanded this matter previously and issued our mandate,
our final instructions were directed toward the district court itself, and not the
litigants. See The Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d 942, 951
(6th Cir. 1999) (“[T]he mandate is the ‘official mode of communicating the judgment
of an appellate court to a lower court, thereby directing action to be taken or
disposition to be made of the cause by the trial court.’” (citation omitted)). It was
therefore left to the district court as to how to proceed with the appeal, yet the
record is devoid of any communication between the district court and the parties
regarding how to proceed on remand. We cannot fault Fadayiro, a pro se litigant,
for waiting instruction from the district court in the unusual situation of a remand
from this court, especially since the court gave no warning that further delay in
briefing the appeal would result in dismissal. See Fischer v. Cingular Wireless,
LLC, No. 05-3391, 2006 WL 1133149, at *2 (7th Cir. May 1, 2006) (“The purpose of
requiring a warning is not to entrap district judges but to make sure that the
plaintiff is warned.”). We thus conclude that, on these particular facts, the
dismissal was an abuse of discretion.
The judgment is VACATED, and the matter is REMANDED to the district
court for further proceedings consistent with this order. Each side shall bear its
own costs.

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