Jav Nikollbibaj v. Us Foods, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2026
Decided July 10, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 25-2123
JAV NIKOLLBIBAJ,
Plaintiff-Appellant,
v.
US FOODS, INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 21 C 6914
Thomas M. Durkin,
Judge.
O R D E R
Jav Nikollbibaj appeals the denial of his Federal Rule of Civil Procedure 60(b)
motion seeking relief from the dismissal of his civil action for breach of contract and
related claims. The facts of this case are sympathetic: Nikollbibaj’s lead attorney
suffered a debilitating stroke that led to the case being dismissed for want of
prosecution. Nikollbibaj filed a Rule 60(b) motion based on “excusable neglect.” But the
district court denied the motion, finding that his 11-month delay in seeking relief was
unreasonable. We affirm the judgment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 25-2123 Page 2
Background
Nikollbibaj is an award-winning chef in Michigan. He alleges that US Foods, Inc.,
a food-service distributor, did not compensate him for his efforts in identifying vendors
to help the company find less expensive disposables—like latex gloves and plastic
trashcan liners—to resell to its customers.
In late 2021, Nikollbibaj (a Michigan citizen) and his business partner, Geoff
De Weaver (a Florida citizen), brought a diversity action against US Foods
(incorporated in Delaware with its principal place of business in Illinois), alleging fraud
and breach of contract. The complaint was submitted by Illinois attorney Steven Mora
and Virginia attorney Steven Biss, who later moved to appear pro hac vice. The district
court dismissed the fraud claims because the plaintiffs could not recover in tort what
could be remedied in contract.
Discovery proceeded through fall 2023, when US Foods moved to extend the
fact-discovery deadline from September 29 to October 31. In the motion, US Foods
stated, “multiple recent attempts to contact plaintiffs’ counsel by both telephone and
email have been unsuccessful. Accordingly … US Foods has filed the instant Motion
without being able to represent that it is agreed or unopposed.” The court granted the
motion. US Foods then noticed depositions of the plaintiffs for the end of October.
On October 24, Mora moved to withdraw as one of plaintiffs’ attorneys, citing
“irreconcilable issues between client and counsel.” The court promptly granted the
motion. Mora states on appeal that Biss brought him on the case as local counsel
primarily because of his federal court experience in the Northern District of Illinois and
that he withdrew because he had not heard from Biss in months.
On October 27, US Foods moved under Federal Rule of Civil Procedure 37(d) to
dismiss the case as a sanction for plaintiffs’ failure to litigate the case diligently or
appear for their depositions. The company stated that it had not heard from plaintiffs’
attorneys since September, that plaintiffs did not attend their depositions in October,
and that “communications with Mr. Mora … indicate that, like US Foods, he was
ghosted by lead plaintiffs’ counsel and likely withdrew out of frustration.”
On November 3, plaintiffs and Biss, their only remaining counsel, failed to
appear at a court hearing on US Foods’ motion. The court granted US Foods’ motion

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No. 25-2123 Page 3
and dismissed the case with prejudice for failure to prosecute. The clerk of the court
entered the judgment on November 7.
Nikollbibaj retained Michigan attorney Thomas Noonan to investigate the status
of his case and learn what happened to Biss.1 Noonan called US Foods’ counsel on
November 14, 2023, and left a voicemail saying: “I'm trying to piece together what
happened because my client’s been in the dark now for some time, and … just found
out the dismissal very recently.” He added that he would likely take over the case and
try “to get it reinstated.” Not hearing back from US Foods, Noonan then contacted
lawyers in Virginia and the state’s bar multiple times over several months, eventually
learning that Biss suffered a stroke in August or September 2023.
On November 7, 2024, Mora, on behalf of Nikollbibaj, moved under Federal Rule
of Civil Procedure 60(b)(1) for relief from the judgment based on excusable neglect.2
Mora, who filed an appearance five days later, reported that Biss had suffered a stroke
in August 2023, and—as a sole practitioner with no support staff—his health condition
was not communicated to anyone associated with this case. To prove that the stroke
was incapacitating, Mora attached the Virginia State Bar records that Noonan had
obtained.
The district court denied the motion. Describing the course of events as
“baffling,” the court found unreasonable the failure of Mora, Nikollbibaj, and Noonan
to pursue the plaintiffs’ claims in this case. All of them, the court stated, had an
obligation to contact the court as soon as they became aware that Biss had become
incapacitated. Mora—who knew that Biss was no longer effectively assisting the
plaintiffs—should have included that information in his motion to withdraw. And
Noonan, who knew by January 2024 that judgment had been entered against plaintiffs
in this case, should have advised Nikollbibaj that actions needed to be taken to seek
relief from judgment. As the court explained, Nikollbibaj waited until November
2024—11 months after the entry of judgment—to file this motion, “effectively
abandoning the case.”
1 Nilollbibaj says he retained Noonan in January 2024 for this purpose.
2 Nikollbibaj’s business partner De Weaver did not participate in that motion or
this appeal.

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No. 25-2123 Page 4
Analysis
Under Rule 60(b), a court may relieve a party from a final judgment for various
reasons, including “mistake, inadvertence, surprise, or excusable neglect.” F ED. R. C IV.
P. 60(b)(1). If the stated ground for relief is excusable neglect, Rule 60(c) makes clear
that the motion must be filed within “a reasonable time” and “no more than a year after
the entry of the judgment.” Id. 60(c)(1). We review the denial of relief from judgment
under “an extremely deferential abuse of discretion standard.” In re Cook Med., Inc.,
27 F.4th 539, 542 (7th Cir. 2022) (citation modified). And we adopt the district court’s
“factual findings unless clearly erroneous.” Lippert v. Hughes, 171 F.4th 992, 1000
(7th Cir. 2026).
Nikollbibaj contends the district court relied on inaccurate facts when assessing
whether the motion was made within a reasonable time. He asserts the court was
wrong to say it was not contacted by the plaintiffs until November 2024 because emails
that co-plaintiff De Weaver sent in November 2023 to a courtroom deputy in the
Northern District of Illinois, Kerwin Posley,3 show that the district court had notice of
the events a year earlier. But Nikollbibaj only attached these emails in an appendix to
his appellate brief. They are not part of the district court record, so the district court
could not have made a determination based on facts of which it was unaware.
See Midwest Fence Corp. v. United States Dep't of Transp., 840 F.3d 932, 946 (7th Cir. 2016).
Nikollbibaj next argues the district court erred in concluding the motion was not
filed within a reasonable time. He states that Noonan did not learn that Biss was unable
to communicate until “shortly before” he filed the motion in November 2024, and that
the delay was reasonable because Noonan needed to obtain evidence showing the
severity of Biss’s stroke before he could file the motion.
A “reasonable time” depends on the facts of each case. Ingram v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004). Reasonableness is measured
by “the interest in finality, the reasons for the delay, the practical ability of the litigant to
learn earlier of the grounds relied upon, and the consideration of prejudice, if any, to
3 It appears that Posley at the time was serving as a courtroom deputy to two
district judges. An email signature on correspondence he sent De Weaver on
November 17, 2023, identifies him as the courtroom deputy to Judge Ronald Guzman.
Two weeks earlier, he was identified on the judgment in this case as the Deputy Clerk
for Judge Durkin.

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No. 25-2123 Page 5
other parties.” Id. at 952. The record on appeal reflects that Nikollbibaj knew of Biss’s
condition 11 months before filing the Rule 60(b) motion. De Weaver’s November 13,
2023, email to the courtroom deputy states, for instance, “I just learned from my
business partner today, Jay Nikollbibaj, Steven D Biss has had a massive stroke” (bold
in original). And Noonan, in a voicemail he left US Foods on November 14, 2023,
expressed his intent to “get [the case] reinstated.” Because Nikollbibaj had 11 months’
notice that Biss had suffered a debilitating medical event that contributed to the
judgment against him, the district court’s finding of unreasonable delay is not an abuse
of discretion.
At oral argument, Nikollbibaj’s counsel insisted that Nikollbibaj could not have
moved under Rule 60(b) in November 2023 because at that time he had heard only that
Biss may have had a stroke. Counsel maintained that Nikollbibaj needed evidence of
Biss’s stroke beyond this “hearsay.” But counsel then told us that in March 2024,
Noonan confirmed with the Virginia State Bar that Biss was incapacitated. So even if
Nikollbibaj held doubts about Biss’s condition until March, he still waited another eight
months to file the motion. Nikollbibaj has not justified this delay, so we cannot conclude
that the district court abused its discretion here.
Nikollbibaj next urges that relief from the judgment would not prejudice US
Foods (prejudice being one of the other factors by which a reasonableness inquiry under
Rule 60(b) can be measured). But he does not develop this argument sufficiently to
warrant discussion. And even if he could prove that US Foods would not be prejudiced
by reopening, that assessment would be outweighed by the interest in finality and lack
of compelling reason for the delay.
A FFIRMED

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