Parrillo v. Reilly

Filing 10

ORDER that Appellees' motion to dismiss appeal 8 is granted. The Clerk shall terminate this matter. Signed by Judge David G Campbell on 5/9/12. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN THE MATTER OF

No. CV11-1285-PHX-DGC

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Donald W. Parrillo

ORDER

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___________________________________

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Donald W. Parrillo,

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Appellant,

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v.

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Nancy Reilly and Zane D. Smith,

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Appellees.

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On June 29, 2011, Appellant Donald W. Parrillo’s appeal of a bankruptcy court

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order was lodged in this Court. Doc. 1. Appellant was informed that he must, within 14

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days, designate the items to be included in the record on appeal and serve a copy on the

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Appellees. Doc. 1 at 2. Appellant was also notified that his failure to comply with

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applicable rules could result in dismissal of his appeal. Doc. 2 at 2. Despite these

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instructions, Appellant did not designate the record on appeal. Appellant was advised of

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this failure in an order dated October 20, 2011, but never responded with a designation of

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the record on appeal. Doc. 3.

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On January 9, 2012, the Court entered a scheduling order that required Appellant

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to file his opening brief within 14 days. Doc. 4. The order again informed him that his

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appeal could be dismissed if he failed to comply with applicable rules and orders. Id. at

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2. Appellant filed a motion seeking to extend the briefing schedule for 180 days, but

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failed to provide any substantiation for his request. As a result, on February 9, 2012, the

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Court denied Appellant’s motion for an extension of time. Doc. 9. Appellant thereafter

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failed to file his opening brief.

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In response to Appellant’s request for an extension of time, Appellees filed a

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motion to dismiss. Doc. 8. The motion noted that Appellant had failed to designate the

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record on appeal as required by applicable rules. Id. In the Court’s order denying

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Appellant’s request for an extension of time, the Court specifically stated that it would

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rule on the motion to dismiss after briefing was completed. Doc. 9. Appellant failed to

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respond to the motion to dismiss.

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Appellant clearly has been warned that his failure to comply with applicable rules

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and Court orders could result in dismissal of his appeal. See Doc. 1 at 11; Doc. 4 at 2.

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He nonetheless has failed to designate his record on appeal, file an opening brief, or

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respond to the motion to dismiss. This appeal has been pending for almost one year with

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virtually no activity because of Appellant’s repeated failures to satisfy his obligations.

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The Ninth Circuit has developed a five part test for determining whether a

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dismissal sanction is just:

(1) the public’s interest in expeditious resolution of the

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litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the party

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seeking sanctions; (4) the public policy favoring disposition of cases on the merits; and

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(5) the availability of less drastic sanctions.

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Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998). The first three factors favor

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dismissal of this appeal: the appeal cannot be resolved expeditiously when Appellant

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fails to comply with applicable rules, the Court cannot effectively manage its docket in

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such a situation, and the resulting delay prejudices Appellees. The fourth factor weighs

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against dismissal. In considering the fifth factor, the Court has contemplated less drastic

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sanctions, but because Appellant repeatedly has demonstrated his failure to comply with

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rules and orders, the Court concludes that dismissal is the only appropriate sanction.
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Valley Engineers, Inc. v. Electric

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IT IS ORDERED that Appellees’ motion to dismiss appeal (Doc. 8) is granted.
The Clerk shall terminate this matter.
Dated this 9th day of May, 2012.

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