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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Susan Kay Pernack,
Debtor Appellant,

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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.

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Before the Court is Appellee’s motion to dismiss for failure to fulfill procedural

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requirements and mootness. Doc. 6. Appellant failed to respond to the motion to

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dismiss. Only after this Court issued an order warning Appellant that the Court would

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summarily grant Appellee’s motion (Doc. 8) did Appellant file a notice objecting to the

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motion to dismiss (Doc. 9). The notice states: “I Susan Pernack am objecting to

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dismissal in this case. I urge court for time to retain council.” Doc. 10. This, of course,

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is not an effective response to a motion to dismiss.

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Since filing her notice of appeal on October 25, 2012, Appellant has not taken any

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action to comply with Federal Rule of Bankruptcy Procedure 8006. The bankruptcy

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court notified Appellant that she had fourteen days from the filing of the notice of appeal

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to file a statement of issues and designation of record (Doc. 1), and the Clerk of this

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Court warned Appellant that failure to comply with the Federal Rules of Bankruptcy

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Procedure and the Local Rules of Bankruptcy Appeal Procedure may result in dismissal

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(Doc. 2). In the seven months since she filed her notice of appeal, Appellant has taken no

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action to prosecute the appeal. She has filed no statement of issues, designated no

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portion of the record, failed to file a substantive response to the motion to dismiss, and

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failed to file any other document. Her brief response to the motion to dismiss states that

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she seeks time to find counsel, but seven months is more than enough time to complete

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such a task. For all of these reasons, the Court will grant Appellee’s motion to dismiss.

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See Fed. R. Bankr. P. 8001(a) (“An appellant’s failure to take any step other than timely

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filing a notice of appeal does not affect the validity of the appeal, but is ground only for

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such action as the district court . . . deems appropriate, which may include dismissal of

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the appeal.”); see also In re Gelso Investments V, LLC, 127 Fed. Appx. 916, 917 (9th Cir.

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2005) (“the district court properly dismissed with prejudice [pro se appellant]’s

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bankruptcy appeal for failure to prosecute because, eleven months after filing his notice

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of appeal, with sufficient opportunities to comply despite his incarceration [pro se

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appellant] still had not filed the requisite documents.”).

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IT IS ORDERED:

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1.

The appeal is dismissed.

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2.

The Clerk is directed to terminate this action.

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Dated this 23rd day of May, 2013.

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