Salyer et al v. Bank of Montreal et al

Filing 18

ORDER signed by Judge Kimberly J. Mueller on 12/13/13 GRANTING 10 Motion to Dismiss the appeal for failure to prosecute and DENYING 11 Motion to withdraw as attorney as moot. CASE CLOSED. (cc USBC Sacramento) (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SK FOODS, LP,

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Civ. No. S-13-1326 KJM
Debtor,

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ORDER
BANK OF MONTREAL,

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Plaintiff/Appellee,

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v.

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SCOTT SALYER, et al.,

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Defendants/Appellants.

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Plaintiff /Appellee Bank of Montreal has filed a motion to dismiss this appeal for

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lack of prosecution and Attorney Kimberly Wright has filed a motion to withdraw as counsel for

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Scott Salyer and the Salyer Revocable Trust. Appellants have not responded to either motion.

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The court submitted both motions without argument and now GRANTS the motion to dismiss

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and DENIES the motion to withdraw as moot.

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I. BACKGROUND
On July 2, 2013, appellants Frederick Scott Salyer and the Scott Salyer Revocable

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Trust (collectively “Salyer”) filed a notice of appeal of the bankruptcy court’s order granting a

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motion for summary judgment filed by plaintiff/appellee Bank of Montreal (“Bank”); Salyer

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elected to have the district court hear the appeal. ECF No. 1.

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In its order granting the Bank’s motion for summary judgment, the bankruptcy

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judge refused to consider Salyer’s opposition because it was filed late and said that “[a]fter

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pleading with the court for extensions in various other matters, Ms. Wright has exhausted the

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patience of the court.” ECF No. 1 at 9.

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On August 2, 2013, the Bankruptcy Court certified that the record on appeal was

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complete and the Clerk of this Court issued a briefing schedule. ECF Nos. 3, 4-1 at 1. According

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to that schedule, Salyer’s brief and excerpt of record was due September 3, 2013. ECF No. 4-1 at

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1.

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On September 18, 2013, Salyer filed a motion for a thirty day extension of time to

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file the opening brief, which the court granted. ECF Nos. 5, 9. Salyer has not filed his opening

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brief and excerpts of record nor sought a further extension of time.

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On October 25, 2013, the Bank filed the instant motion to dismiss the appeal for
lack of prosecution. ECF No. 10.

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On November 14, 2013, Attorney Wright filed a motion to withdraw as counsel.
II. THE MOTION TO DISMISS FOR FAILURE TO PROSECUTE

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Under Rule 8009(a)(1) of the Federal Rules of Bankruptcy Procedure, an

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appellant’s opening brief shall be filed “within 14 days after entry of the appeal on the docket.”

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Under Rule 8001(a), “[a]n appellant’s failure to take any step other than timely filing a notice of

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appeal does not affect the validity of the appeal, but is grounds for such action as the district court

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. . . deems appropriate, which may include dismissal of the appeal.”

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The Ninth Circuit has said that a procedural violation of a bankruptcy rule may

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justify the dismissal of an appeal but also said the district court should consider alternative

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sanctions short of dismissal. Fitzsimmons v. Nolden (In re Fitzsimmons), 920 F.2d 1468, 1472

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(9th Cir. 1990). The failure to file an opening brief is a nonjurisdictional procedural error.

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Matter of Scheri, 51 F.3d 71, 74 (7th Cir. 1995).

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In this case, the bankruptcy court has already chided Salyer’s counsel for her

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dilatory tactics and sanctioned counsel by refusing to consider her untimely opposition to the

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Bank’s motion for summary judgment. ECF No. 1 at 9. Thereafter, this court granted Salyer’s

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untimely motion for an extension of time, warning counsel that no further extensions would be

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granted absent a showing of good cause. ECF No. 9. Counsel neither sought another extension

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nor filed the opening brief. In light of counsel’s dilatory behavior in the bankruptcy court and the

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lack of prosecution in this court, it is unlikely that any alternative sanction would produce

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compliance, particularly in light of counsel’s motion to withdraw and Salyer’s failure to respond

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to that motion.

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IT IS THEREFORE ORDERED that:

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1. The motion to dismiss the appeal for failure to prosecute, ECF No. 10, is

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granted; and
2. Attorney Kimberly Wright’s motion to withdraw as counsel for this appeal is

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denied as moot.

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Dated: December 13, 2013.

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UNITED STATES DISTRICT JUDGE

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