In Re: Estrella and James Kincaid

Filing 35

ORDER for DISMISSAL of case signed by District Judge Troy L. Nunley on 3/26/2015. Court is DISMISSING and CLOSING this action for appellants' failure to prosecute and failure to adhere to Court's rules. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES KINCAID and ESTELLA
KINCAID,
Appellants,

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No. 2:13-cv-01032-TLN

ORDER DISMISSING AND CLOSING
CASE FOR FAILURE TO PROSECUTE

v.
SUSAN K. SMITH AND THE OFFICE
OF THE U.S. TRUSTEE,

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Trustees.

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This case was originally brought before this Court on May 24, 2013. (See Notice of

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Bankruptcy Appeal, ECF No. 1.) On August 20, 2014, the Deputy Clerk of the U.S. Bankruptcy

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Court of the Eastern District of California certified that the record with respect to Appellants

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James Kincaid and Estella Kincaid (“Appellants”) was complete for purposes of this appeal.

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(ECF No. 17.) Pursuant to Federal Rule of Bankruptcy Procedure 8009, Appellants’ opening

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brief and excerpts of record were due, filed in the district court, within fourteen (14) days of the

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certification. (ECF No. 17.) On September 5, 2014, Appellants filed a motion for a fourteen (14)

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week extension to file their opening brief. (ECF No. 18.) The Court granted this request, but

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warned Appellants that the Court would not grant any further extension. (See Minute Order, ECF

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No. 19.)

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On December 1, 2014, Appellants filed an ex parte application requesting another
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extension. (ECF No. 20.) The Court denied this application, finding that Appellants failed to

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show good cause for another extension, especially in light of the Court’s previous admonishment.

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(See Order, ECF No. 22.) In response, Appellants filed an Emergency Ex Parte Motion for

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Reconsideration (ECF No. 23), in which Appellants contended that Appellant James Kincaid’s

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health has deteriorated and is causing delays. The Court denied Appellants’ motion stating that it

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was sympathetic to Appellants’ health issues, but finding that Appellants’ health considerations

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were constant and could not be allowed to indefinitely postpone this case. (Order, ECF No. 28.)

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In fact, the Court noted that Appellants complained of this issue back in June of 2014, and the

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Court took that into consideration when it reopened Appellants’ case which had previously been

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closed for filing deficiencies. (See ECF Nos 15, 16.)

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The time for compliance has come and gone and Appellants have failed to file their

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opening brief, nearly two years after this case was originally filed. Appellants leave this Court no

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other option than to dismiss this case for Appellants’ failure to prosecute.

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“The authority of a federal trial court to dismiss a [an] action with prejudice because of [a]

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failure to prosecute cannot seriously be doubted.” Link v. Wabash R. Co., 370 U.S. 626, 629

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(1962). The Ninth Circuit has set forth four factors that a district court must consider before

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dismissing a case for failure to prosecute:

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[1] the court’s need to manage its docket, [2] the public interest in
expeditious resolution of litigation, [3] the risk of prejudice to
defendants from delay, [4] the policy favoring disposition of cases
on their merits.

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Morris v. Morgan Stanley & Co., 942 F.2d 648, 651 (9th Cir. 1991). For the reasons set forth

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below, the Court finds that these factors weigh in favor of dismissing this case.

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First, the Court has an inherent need to manage its docket. Appellants filed this case in

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May 2013, and still has not filed their opening brief. Pursuant to Federal Rule of Bankruptcy

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Procedure 8009, Appellants’ opening brief and excerpts of record were due, filed in the district

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court, within fourteen (14) days of the certification, which occurred on August 20, 2014.

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Appellants’ failure to adhere to Rule 8009 and this Court’s orders show that the first factor— the

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court’s need to manage its docket —weighs in favor of dismissing this case.
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Second, the public’s interest in expeditious resolution of litigation also favors dismissing

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this case because the Court is wasting its time and resources attempting to compel Appellants’

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cooperation in litigating their own case. Third, Appellants’ failure to file their brief prevents

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Appellees from seeking some sort of resolution. Finally, although the disposition of cases based

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on their merits is preferred, it is unlikely that such is an option here. The Court simply cannot

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move forward without Appellants’ assistance.

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Thus, for the aforementioned reasons, the Court finds that all four factors support

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dismissing Appellants’ case. As such, the Court hereby DISMISSES this action. This case is

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CLOSED.

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IT IS SO ORDERED.
Dated: March 26, 2015

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Troy L. Nunley
United States District Judge

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