Earwood v. Bodenheimer Jones Szwak & Winchell L L P Dissolution & Liquidation et al
MEMORANDUM ORDER denying 9 Motion to Dismiss; granting 23 Motion to Supplement Record on Appeal with Transcript. The November 14, 2011 transcript of the Bankruptcy Court's findings of fact and conclusions of law is hereby added and entered into the record on appeal for all purposes. Signed by Judge S Maurice Hicks on 3/26/2013. (crt,Dauterive, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
DALE C. EARWOOD
CIVIL ACTION NO. 12-0516
JUDGE S. MAURICE HICKS, JR.
BODENHEIMER JONES SZWAK &
WINCHELL LLP DISSOLUTION &
LIQUIDATION, ET AL.
MAGISTRATE JUDGE HORNSBY
Before the Court are two motions (Record Documents 9 & 23) relating to the
pending bankruptcy appeal. The first is a Motion to Dismiss (Record Document 9) filed by
Appellee David A. Szwak. The second is a Motion to Supplement Record on Appeal
(Record Document 23) filed by Appellant Dale C. Earwood.
In the Motion to Dismiss, Szwak seeks dismissal of the bankruptcy appeal under
Bankruptcy Rule 80061 due Earwood’s failure to file a copy of the transcript of the
November 14, 2011 proceeding before Judge Calloway, United States Bankruptcy Judge.
See Record Document 9. District courts do “not invariably dismiss for breaches of . . .
procedural rules [such as] Rule 8006.” In re CPDC Inc., 221 F.3d 693, 698-699 (5th Cir.
2000). Rather, the court must exercise discretion in determining what sanctions are
appropriate. See id. at 699. “Dismissal is a harsh and drastic sanction that is not
appropriate in all cases, even though it lies within the district court’s discretion.” Id.
The Court has reviewed the record in this matter and finds that dismissal is not the
appropriate remedy in this instance. While Szwak argues to the contrary, the Court
Federal Rule of Bankruptcy Procedure 8006 requires that “within 14 days after filing
the notice of appeal as provided by Rule 8001(a) . . . the appellant shall file with the clerk
and serve on the appellee a designation of the items to be included in the record on appeal
and a statement of the issues to be presented.” F.R.B.P. 8006.
believes the record does not support a finding of “prejudice from the delay.” Smith v.
Schmidt, Nos. 07-126, 07-286, 2007 WL 3342224, *3 (S.D.Tex. Nov. 6, 2007). Additionally,
based on the showing made, the Court does not believe that Earwood “has exhibited
obstinately dilatory conduct.” Id. The Court finds that no sanction is necessary, as the
underlying issues can be easily resolved without prejudice or undue hardship.
While Earwood opposed the Motion to Dismiss, he also filed a Motion to Supplement
Record on Appeal. See Record Document 23. He seeks leave of court to supplement the
record on appeal to include a copy of the transcript regarding statements made by the
Bankruptcy Judge on November 14, 2011. See id. The Court believes that allowing
Earwood to supplement the record is the appropriate resolution at this time.
IT IS ORDERED that the Motion to Dismiss (Record Document 9) is DENIED and
the Motion to Supplement Record on Appeal (Record Document 23) is GRANTED. The
November 14, 2011 transcript of the Bankruptcy Court’s findings of fact and conclusions
of law is hereby added and entered into the record on appeal for all purposes.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 26th day of March, 2013.
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