In Re Carol Lavon Pulliam

Filing 13

ORDER DENYING EMERGENCY APPLICATION TO ADVANCE HEARING DATE 12 ; DENYING MOTION TO SET ASIDE DISMISSAL 10 by Judge Otis D. Wright, II. (SEE DOCUMENT FOR SPECIFICS). (lc). Modified on 6/24/2015 (lc).

1
2

O

3
4
5
6

United States District Court
Central District of California

7
8
9
10

IN RE CAROL LAVON PULLIAM,

11

USBC No. 6:14-bk-25027-WJ

12

Case No. 5:15-cv-00250-ODW
ORDER DENYING EMERGENCY

Debtor,

13

__________________________________

APPLICATION TO ADVANCE

14

CAROL LAVON PULLIAM,

HEARING DATE [12]; DENYING

15
16
17
18
19

MOTION TO SET ASIDE

Appellant,

DISMISSAL [10].

v.
ROD DANIELSON,
Appellee.
I.

INTRODUCTION

20

The instant action is an appeal from dismissal by the Bankruptcy Court. On

21

May 28, 2015, following Appellant’s failure to comply with the procedures and orders

22

of the Court, this Court dismissed the appeal. Appellant now moves the Court to set

23

aside the May 28 Order denying Appellant’s motion for more time to file an opening

24

brief and dismissing the appeal.

25

Application, that the Court advance the hearing date on Appellant’s Motion. For the

26

reasons discussed below, the Court affirms its dismissal, DENIES Appellant’s

27

Emergency Application to Advance Hearing Date, and DENIES Appellant’s Motion

28

to Set Aside Dismissal. (ECF Nos. 10, 12.)

Appellant also requests, via an Emergency

II.

1

FACTUAL BACKGROUND

2

On January 30, 2015,1 the United State Bankruptcy Court issued an Order and

3

Notice of Dismissal arising from Carol Pulliam’s Chapter 13 confirmation hearing

4

(case number 6:14-bk-25027-WJ). (Am. Notice of Appeal at 3, ECF No. 4.) Pulliam

5

immediately appealed, and elected to proceed before the District Court. (Notice of

6

Appeal, ECF No. 3; Am. Notice of Appeal.)
On February 9, the appeal was assigned to this Court, and the Court issued a

7
8

Notice Regarding Appeal From Bankruptcy Court.

(ECF No. 1.)

The Notice

9

informed the parties that they must comply with the applicable rules of the Federal

10

Rules of Bankruptcy Procedure (“Fed. R. Bankr. P.”). (Id. at 1.) It informed the

11

parties that this Court would issue a briefing schedule after the Bankruptcy Court

12

certified that the record was complete. (Id. at 2.) It further informed the parties that

13

any request for an extension of time in the briefing schedule must be filed “well in

14

advance of the due date, and must specify good cause for the requested extension.”

15

(Id.) Finally, the Notice advised the parties that “failure of either party to comply with

16

time requirements as stated in this notice and applicable rules may result in the

17

dismissal of the appeal . . . .” (Id.)

18

Also on February 9, the Court docketed Appellant Pulliam’s Notice of Appeal.

19

(ECF No. 3.) On March 4, the Court docketed Appellant’s Amended Notice of

20

Appeal, which attached a copy of the Order of Dismissal issued by the Bankruptcy

21

Court. (ECF No. 4.) On May 12, the Bankruptcy Court certified that the record was

22

ready and this Court issued the Notice Re: Bankruptcy Record Complete, Briefing

23

Schedule, and Notice of Entry. (ECF Nos. 6, 7.) The Briefing Schedule ordered

24

Appellant to submit an opening brief “not later than 5/26/15.” (ECF No. 7.) On May

25

26, Appellant filed a “Motion for More Time to File Opening Brief.” (ECF No. 8.)

26

On May 28, the Court issued an Order to Dismiss Appeal (“May 28 Order”) denying

27

Appellant’s Motion for more time for failure to comply with Fed. R. Bankr. P. 8009-

28

1

All date references are to the year 2015.
2

1

4.5 (C.D. Cal. L. Bankr. R. 4.5) and dismissing the appeal for failure to file an

2

opening brief according to Fed. R. Bankr. P. 8018-4.4 (C.D. Cal. L. Bankr. R. 4.4).2

3

(ECF No. 9.)
On June 8, Appellant moved to set aside the dismissal of her appeal (also

4
5

entitled “Motion for Reconsideration”).

(ECF No. 10.)

Appellant included a

6

declaration with the Motion in which she stated that she had “searched everywhere”

7

but could not find Local Rule of Bankruptcy Procedure 4.5, and that “[i]t is a mystery

8

what the court did and why.” (Id. at 2.)

9

Appellee opposed on June 10. (ECF No. 11.) Also on June 10, Appellant filed

10

an Emergency Application to Advance Hearing Date on Motion to Reconsider.

11

(Appl., ECF No. 12.) Appellant’s Motion and Application are before the Court for

12

consideration.
III.

13
14

A.

DISCUSSION

Emergency Application to Advance Hearing Date

15

“A motion will be decided without oral argument unless the district court . . .

16

orders otherwise.” Fed. R. Bankr. P. 8013(c). After carefully considering the papers

17

filed in support of and in opposition to Appellant’s Motion for Reconsideration, the

18

Court deems the matter appropriate for decision without oral argument. Appellant’s

19

Emergency Application to Advance Hearing Date is therefore MOOT.

20

Additionally, emergency motions must be accompanied by an affidavit

21

containing specified information and an appendix that includes conformed copies of

22

the Notice of Appeal and the Order. C.D. Cal. L. Bankr. R. 5; Fed. R. Bankr. P.

23

8013(d). Appellant failed to comply with these requirements. Appellant’s declaration

24

did not contain the information specified by Fed. R. Bankr. P. 8013(d), and Appellant

25
26
27
28

2

The Federal Rules of Bankruptcy Procedure (“Fed. R. Bankr. P.”) were amended effective
December 1, 2014. The Local Rules Governing Bankruptcy Appeals for the Central District (“C.D.
Cal. L. Bankr. R.”) currently reference the former Fed. R. Bankr. P. number (i.e. Fed. R. Bankr. P.
8009 is now cited at 8018). The substance of the relevant rules remains unaffected, and C.D. Cal. L.
Bankr. R. 4.4 and 4.5 continue to be found at Rule 4.4 and 4.5 respectively.
3

1

did not attach the Notice of Appeal or the Order. Accordingly, the Court DENIES

2

Appellant’s Emergency Application to Advance Hearing Date. (ECF No. 12.)

3

B.

Motion to Set Aside Dismissal
Although Appellant captioned the Motion as “Motion to Set Aside Dismissal,”

4
5

Appellant treats the Motion as one for reconsideration.

6

(ECF No. 10 at 1, 3.)

Therefore, the Court will also consider it as such.

7

In the Central District, a motion for reconsideration must be based upon (a) a

8

material difference of fact or law from that which was presented to the Court before

9

the order, (b) new material facts or law emerging after the order, or (c) a manifest

10

showing that the Court failed to consider material facts presented before the order.

11

C.D. Cal. L.R. 7-18. Appellant may not repeat any written argument made in support

12

of the original motion.

13

reconsideration. Appellant presents no different facts or law, no newly emerging facts

14

or law, and fails to demonstrate, or even allege, that the Court did not consider

15

material facts before issuing the May 28 Order.

Id.

Here, Appellant has demonstrated no basis for

16

Appellant alleges in the Motion that she is subject to “manifest injustice by

17

having her appeal dismissed for reasons that are not set forth by the court.” (ECF No.

18

10 at 3.) But Appellant was notified of the potential consequences of failure to

19

comply with the rules of the Court in the first document docketed in this appeal. The

20

Notice Regarding Appeal stated “failure of either party to comply with time

21

requirements as stated in this notice and applicable rules may result in the dismissal of

22

the appeal . . . .” (ECF No. 1 at 2.) Further, the May 28 Order expressly stated the

23

rules with which Appellant failed to comply and the consequent Court action.

24

Appellant’s confusion does not provide a basis for reconsideration. Therefore, the

25

Court DENIES Appellant’s Motion to Set Aside Dismissal. (ECF No. 10.)

26

///

27

///

28

///
4

1

C.

May 28 Order

2

To address Appellant’s apparent confusion regarding this Court’s procedural

3

rules and Orders, the Court provides the following clarification regarding the May 28

4

Order.

5

1.

Denial of Request for More Time (Motion for Extension)

6

A motion for an extension of time for filing a brief shall be filed within the time

7

limits prescribed by the District Court. Fed. R. Bankr. P. 8018 (formerly 8009); C.D.

8

Cal. L. Bankr. R. 4.5. The Court informed Appellant, via the Notice Regarding

9

Appeal, that any request for an extension of time in the briefing schedule must be filed

10

“well in advance of the due date, and must specify good cause for the requested

11

extension.” (ECF No. 1 at 2.) The Court ordered the opening brief due no later than

12

May 26, 2015, and thus, any motion for an extension of the briefing schedule was due

13

“well in advance of” May 26, 2015. (ECF No. 7.)

14

Additionally, Local Bankruptcy Rule 4.5 requires that a motion for an extension

15

of the briefing schedule must state “the date the brief is due, how many previous

16

extensions have been granted, when the brief was first due, and whether any previous

17

requests for extension of time have been denied.” C.D. Cal. L. Bankr. R. 4.5. Further,

18

the motion must state “the reason(s) why such an extension is necessary, the amount

19

of additional time requested, and the position of the opponent(s) as to the proposed

20

extension or why the moving party has been unable to obtain a statement of the

21

opponent’s position.” Id.

22

Appellant’s Motion for More Time to File Opening Brief did not comply with

23

these requirements. Appellant filed the Motion for More Time on May 26, which is

24

not “well in advance” of that deadline. Further, the Motion for More Time omitted

25

Appellee’s position regarding the extension and any reference of previous requested

26

extensions. The Motion for More Time failed to justify the requested thirty day

27

extension or demonstrate how additional documents could establish good cause for

28

such an extension, especially considering that the record had already been certified as
5

1

complete. Because Appellant’s Motion for More Time to File Opening Brief failed to

2

comply with the requirements, on May 28, the Court properly denied the Motion for

3

More Time.

4

2.

Dismissal of Appeal

5

Briefs on appeal are due as ordered by the Court. Fed. R. Bankr. P. 8018(a);

6

C.D. Cal. L. Bankr. R. 4.1. The Court ordered Appellant to file an opening brief no

7

later than May 26. “If an appellant fails to file a brief within the time provided by

8

these rules, the district court may dismiss the appeal on its own motion . . . .” C.D.

9

Cal. L. Bankr. R. 4.4; see Fed. R. Bankr. P. 8018(a)(4). In addition to these rules, the

10

Court notified Appellant, via the Notice Regarding Appeal, that any “failure of either

11

party to comply with time requirements as stated in this notice and applicable rules

12

may result in the dismissal of the appeal . . . .” (ECF No. 1 at 2.) Appellant did not

13

file a brief as ordered. Therefore, the Court properly dismissed the appeal.
IV.

14

CONCLUSION

15

For the reasons discussed above, the Court DENIES Appellant’s Emergency

16

Application to Advance Hearing Date (ECF No. 12) and DENIES Appellant’s Motion

17

to Set Aside Dismissal (ECF No. 10).

18
19

IT IS SO ORDERED.

20
21

June 23, 2015

22
23
24

____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

25
26
27
28
6