In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-4084

In the matter of: KMART CORPORATION, et al.,

Debtors-Appellees,

Appeal of: WILHEMINA SIMMONS,

Appellant.

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Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 03 C 96—Amy J. St. Eve, Judge.

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ARGUED APRIL 9, 2004—DECIDED AUGUST 27, 2004

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Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

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 Fed.

R. Bankr. P. 3003(c)(3) (The “court shall fix and for cause

shown may extend the time within which proofs of claim or
2 No. 03-4084

interest may be filed.”). Later, upon Kmart’s motion, the

bankruptcy court established a supplemental bar date of

January 22, 2003 (“Supplemental Bar Date”) for a limited

set of pre-Petition Date creditors who had not previously

been sent notice of the Original Bar Date. See id.

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 personalinjury 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 was untimely, delivered to Kmart

one day after the Bar Date on August 1, 2002. Apparently,

on July 30, the day before the Bar Date, Simmons’s attorney delegated to an office clerk the task of mailing

Simmons’s proof of claim. Unfortunately for Simmons, the

clerk waited until around two o’clock in the afternoon before

attending to the assignment. Either because of an oversight by

the clerk or because the post office refused to guarantee a

next-day delivery given the late hour, the clerk checked the

box for “Second Day Delivery” on the mail delivery instructions and the package arrived one day later than

Simmons and her attorney intended.

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
No. 03-4084 3

1 Bankruptcy Rule 9006(b) provides: 

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)

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 Rule 9006(b)(1) of the Federal Rules

of Bankruptcy Procedure for Simmons’s proof of claim to be

deemed timely filed.1

Evaluating whether Simmons’s late filing was the result

of “excusable neglect” as required under Rule 9006(b)(1), the

bankruptcy court considered the four factors established in

Pioneer Investment Services Co. v. Brunswick Associates

Ltd. Partnership, 507 U.S. 380, 395 (1993). On November

19, 2002, the court denied Simmons’s motion to deem her

claim timely filed.

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,
4 No. 03-4084

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, we

review the bankruptcy court’s refusal to apply the Supplemental Bar Date to Simmons’s proof of claims—a ruling

essentially construing the import of the court’s prior order

establishing the Supplemental Bar Date—for an abuse of

discretion. See In re Weber, 25 F.3d 413, 416 (7th Cir. 1994).

In general terms, a court abuses its discretion when its

decision is premised on an incorrect legal principle or a

clearly erroneous factual finding, or when the record contains

no evidence on which the court rationally could have relied.

Corporate Assets, 368 F.3d at 767 (citing United States v. Jain,

174 F.3d 892, 899 (7th Cir. 1999); Salgado by Salgado v.

General Motors Corp., 150 F.3d 735, 739 & n.4 (7th Cir.

1998)).
No. 03-4084 5

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 Rule 9006(b).

Under Rule 9006(b), a bankruptcy court may, in its discretion, grant such relief if the late filing was the result of

“excusable neglect.” In its 1993 Pioneer decision, supra, the

Supreme Court established four factors to guide courts’ excusable neglect analyses. Specifically, a court assessing whether

to grant a motion under Rule 9006(b) to have a late-filed

proof of claim deemed timely must evaluate “[1] the danger

of prejudice to the debtor, [2] the length of the delay and its

potential impact on judicial proceedings, [3] the reason for

the delay, including whether it was in the reasonable

control of the movant, and [4] whether the movant acted in

good faith.” 507 U.S. at 395. Simmons does not dispute that

the bankruptcy court correctly considered the four factors

outlined by Pioneer. Instead, Simmons posits that the court’s

factual determinations with respect to each of the factors

were clear error and that its ultimate decision to deny her

Rule 9006(b) motion was therefore an abuse of discretion.

We disagree.

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,
6 No. 03-4084

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 Rule 9006(b)

motion, Kmart was indisputably still in the process of identifying other claimants. Hence, Simmons posits, there was

no prejudice to Kmart as a result of Simmons’s tardy filing.

The bankruptcy court did not address these particular facts

in its Pioneer analysis, but instead emphasized Simmons’s

delay in bringing the Rule 9006(b) motion, which we address in detail below, and the size of her claim, $750,000,

characterizing it as “no small amount.” Allowing Simmons’s

late-filed claim could induce other similarly sized lateclaimants to so petition the bankruptcy court. See In re

Specialty Equip. Cos. Inc., 159 B.R. 236, 239 (Bankr. N.D.

Ill. 1993). And while it is true that Simmons’s claim represents only a small fraction of the approximately $6 billion

total of unsecured claims against Kmart, if the bankruptcy

court allowed all late-filed claims of nearly a million dollars

where a simple “innocent mistake” (see our detailed

discussion of Simmons’s “reason” for the delay below) was

to blame for the tardiness of the proof of claim, we think

Kmart could easily find itself faced with a mountain of such

claims, with a corresponding price tag in the millions of

dollars. Perhaps this would be a different case had

Simmons’s claim only asserted, say, $75,000 or $80,000 in

damages. In any event, the bankruptcy court knew the total

number of claims against Kmart, and still found that

Simmons’s claim was “no small amount.” It was in the best

position to assess the relative size of Simmons’s claim, and

she has presented us with no reason here to disturb that

judgment.
No. 03-4084 7

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 Rule 9006(b)

motion. However, the bankruptcy court not only considered

this one-day delay, but also how long it took Simmons to get

around to requesting judicial relief. A total of eighty-one days

lapsed between the Original Bar Date and Simmons’s filing

of her 9006(b) motion. Although Simmons could have easily

ascertained whether her proof of claim made it from the

Virgin Islands to the mainland United States on time by

either including a self-addressed stamped envelope with her

proof of claim (as the claim form encouraged claimants to

do) or by making a follow-up phone call to Trumbull, she

chose not to do so. In fact, Simmons didn’t realize that her

filing was late until she received a notice from Kmart, fiftythree days after the Original Bar Date. Even more perplexing, Simmons waited an additional twenty-eight days to

make her Rule 9006(b) motion. The bankruptcy court was

well within its province to consider the total eighty-one day

period of delay, as the court may consider “all relevant

circumstances” in its excusable neglect analysis. Pioneer,

507 U.S. at 395. 

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-
8 No. 03-4084

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-OwensFord 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’ Rule 9006(b) motions were not as tardy as

Simmons’s (two filing seventy days after the bar date, and

one forty-eight days later). 

Simmons also points to the fact that at the time of her

Rule 9006(b) motion, the Supplemental Bar Date had not

yet passed. But the due process concerns which necessitated

the Supplemental Bar Date are not at all applicable to

Simmons, see infra Part II.B. 

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.
No. 03-4084 9

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 secondday 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
10 No. 03-4084

2 As a general proposition and the for the purposes of the Rule

9006(b) “excusable neglect” analysis at issue here, the failings of

the attorney may be attributed to the party. Pioneer, 507 U.S. at

396-97, cited in In re Scheri, 51 F.3d 71, 75 (7th Cir. 1995).

3 The bankruptcy court made no express findings as to the good

faith factor in its Pioneer analysis. Such an omission by the bankruptcy court does not, as Simmons suggests, necessitate that we

remand for consideration of this factor. Our analysis demonstrates

that the bankruptcy court did not abuse its discretion when it denied Simmons’s Rule 9006(b) motion.

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. However, we agree with the district

court that “[i]t is not difficult to imagine stronger showings

of good faith.”3

 As we have highlighted above, Simmons’s

counsel left the filing of her proof of claim until the proverbial “eleventh hour,” failed to follow up with the thirdparty claims processing agency to determine if the claim

arrived on time, and then, after discovering that her proof

of claim arrived after the deadline, waited nearly a month

before seeking judicial relief. These efforts cannot be called

extraordinary or even particularly diligent. Consequently,

we find that this factor is inconclusive; it neither supports

nor undercuts the bankruptcy court’s ultimate determination.

To summarize our findings, the bankruptcy court’s factual

determinations as to each of the Pioneer factors it analyzed
No. 03-4084 11

4 Kmart explained that when it sent out this initial notice, its objective was to “make extra sure that we had noticed the world as

broadly as possible,” including not only clearly legitimate claimants,

but also those Kmart believed had “no basis on which they could be

construed creditors.” Hence, notice was sent to both scheduled and

unscheduled putative claimants. Kmart further explained that

had it attempted to include all of these million possible claimants

on the schedules which it filed with the bankruptcy court, such

schedules would have been “about 100,000 pages long.” Since, in

Kmart’s view, such a filing would be impracticable, none was attempted.

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 Rule

9006(b) motion was not an abuse of discretion. Moreover, even

if we did take issue with the bankruptcy court’s determination

as to the prejudice component (the only factual finding

remotely questionable), given Simmons’s reticence in

rectifying the impact of the “innocent mistake” and that

ultimately this mistake is attributable to no one except

Simmons, the Pioneer factors would then be at an equipose,

thus necessitating our affirmance of the bankruptcy court’s

ruling. Neither approach reveals any abuse of the bankruptcy court’s discretion.

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-
12 No. 03-4084

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 Rule 9006(b) motion was denied, she

attempted to gain the benefit of the Supplemental Bar

Date. The bankruptcy court denied this request as well,

reasoning that Simmons should not be given a “second bite

of the apple” because her attorney indisputably had actual

knowledge of the Original Bar Date. In so ruling, the bankruptcy court in effect construed the meaning of its prior

order establishing the Supplemental Bar Date. As such and as

we stated earlier, we review the court’s denial of Simmons’s request only for an abuse of discretion. See Taylor v. Prudential

Sec. Inc. (In re VMS Sec. Litig.) (In re VMS Ltd. P’ship Sec.

Litig.), 103 F.3d 1317, 1321 (7th Cir. 1996) (citing cases); In

re Weber, 25 F.3d at 416.

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
No. 03-4084 13

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