Hurtado v. Jones

Filing 12

ORDER Denying 5 Motion to Dismiss, signed by District Judge Dale A. Drozd on 2/21/2016. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATTI JONES,

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No. 1:15-cv-01417-DAD
Plaintiff/Appellee,

v.

ORDER DENYING MOTION TO DISMISS

JUAN ENRIQUE HURTADO,

(Doc. No. 5)

Defendant/Appellant.

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On July 17, 2015, appellant Juan Enrique Hurtado filed a notice of appeal from a May 18,

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2015 judgment by the United States Bankruptcy Court for the Eastern District of California in

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Adversary Proceeding No. 11-01102. (Doc. No. 1, p. 2-6.) On September 18, 2015, the U.S.

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Bankruptcy Appellate Panel of the Ninth Circuit issued an order transferring this appeal to the

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district court. (Doc. No. 1, p. 1.) On September 21, 2015, this court issued a “Notice to

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Bankruptcy Court” that the district court had received and docketed the notice of appeal in the

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matter. (Doc. No. 2-1.) On September 21, 2015, the Clerk of the Court also issued an opening

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letter informing appellant that his appeal from the bankruptcy court had been received. The

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opening letter advised appellant that:

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[T]he parties’ next step in prosecuting this appeal is compliance
with F.R.B.P. 8006 and 8007. These rules require the appellant to
file within 14 days a designation of record, statement of issues on
appeal and a notice regarding the ordering of transcripts with the
bankruptcy court.
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(Doc. No. 2.)

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Nonetheless, appellant did not file a designation of record, a statement of issues on appeal,

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or a notice regarding the ordering of transcripts as required. Consequently, on January 4, 2016,

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appellee Patti Jones filed a motion to dismiss the appeal for lack of prosecution on the grounds

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that these procedural requirements had not been fulfilled. (Doc. No. 5, 1:23-2:3.) On January 13,

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2016, this court issued an order directing appellant to file with the court, on or before February 9,

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2016, a designation of record, a statement of issues on appeal, and a notice regarding the ordering

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of transcripts. (Doc. No. 6.) The court warned the failure to comply with the order would result

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in dismissal of appellant’s appeal. (Id.) On February 10, 2016, appellant did in fact file a

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designation of record on appeal (Doc. No. 9), a statement of issues on appeal (Doc. No. 8), and a

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notice regarding transcripts on appeal (Doc. No. 7).1
On February 16, 2016, appellee’s motion to dismiss the appeal appeared on this court’s

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calendar for hearing, but neither party appeared when the matter was called. Under these

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circumstances, and since the basis for appellee’s motion to dismiss the appeal for lack of

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prosecution has been rendered moot point, the motion to dismiss the appeal will be denied.
For the reasons set forth above, appellee Patti Jones’ motion to dismiss for lack of

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prosecution (Doc. No. 5) is hereby DENIED.

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IT IS SO ORDERED.

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Dated:

February 21, 2016
UNITED STATES DISTRICT JUDGE

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The court notes that appellant’s filings with this court were one day late under the terms of the
court’s order. However, because the delay was minor and in light of appellant’s explanation that
a ministerial mishap was the cause (Doc. No. 10), the court will excuse the one-day late filing.
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