Pernack v. Federal National Mortgage Association

Filing 10

ORDER DISMISSING CASE; the appeal is dismissed; the Clerk is directed to terminate this action. Signed by Judge David G Campbell on 5/23/13. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Susan Kay Pernack, Debtor Appellant, 10 11 12 13 No. CV12-2540 PHX DGC BK No.: 2:12-bk-13331-CGC BAP No. AZ-12-1543 v. ORDER Federal National Mortgage Association, et al., Appellee. 14 15 Before the Court is Appellee’s motion to dismiss for failure to fulfill procedural 16 requirements and mootness. Doc. 6. Appellant failed to respond to the motion to 17 dismiss. Only after this Court issued an order warning Appellant that the Court would 18 summarily grant Appellee’s motion (Doc. 8) did Appellant file a notice objecting to the 19 motion to dismiss (Doc. 9). The notice states: “I Susan Pernack am objecting to 20 dismissal in this case. I urge court for time to retain council.” Doc. 10. This, of course, 21 is not an effective response to a motion to dismiss. 22 Since filing her notice of appeal on October 25, 2012, Appellant has not taken any 23 action to comply with Federal Rule of Bankruptcy Procedure 8006. The bankruptcy 24 court notified Appellant that she had fourteen days from the filing of the notice of appeal 25 to file a statement of issues and designation of record (Doc. 1), and the Clerk of this 26 Court warned Appellant that failure to comply with the Federal Rules of Bankruptcy 27 Procedure and the Local Rules of Bankruptcy Appeal Procedure may result in dismissal 28 (Doc. 2). In the seven months since she filed her notice of appeal, Appellant has taken no 1 action to prosecute the appeal. She has filed no statement of issues, designated no 2 portion of the record, failed to file a substantive response to the motion to dismiss, and 3 failed to file any other document. Her brief response to the motion to dismiss states that 4 she seeks time to find counsel, but seven months is more than enough time to complete 5 such a task. For all of these reasons, the Court will grant Appellee’s motion to dismiss. 6 See Fed. R. Bankr. P. 8001(a) (“An appellant’s failure to take any step other than timely 7 filing a notice of appeal does not affect the validity of the appeal, but is ground only for 8 such action as the district court . . . deems appropriate, which may include dismissal of 9 the appeal.”); see also In re Gelso Investments V, LLC, 127 Fed. Appx. 916, 917 (9th Cir. 10 2005) (“the district court properly dismissed with prejudice [pro se appellant]’s 11 bankruptcy appeal for failure to prosecute because, eleven months after filing his notice 12 of appeal, with sufficient opportunities to comply despite his incarceration [pro se 13 appellant] still had not filed the requisite documents.”). 14 IT IS ORDERED: 15 1. The appeal is dismissed. 16 2. The Clerk is directed to terminate this action. 17 Dated this 23rd day of May, 2013. 18 19 20 21 22 23 24 25 26 27 28 -2-

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