In Re: Tammy Lynn Figuera

Filing 7

ORDER signed by Judge Garland E. Burrell, Jr., on 9/4/14 ORDERING that Appellant's appel is DISMISSED. CASE CLOSED (Kastilahn, A)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 In re Tammy Lynn Figuera, 8 No. Debtor, BK Case No. 9 10 2:14-cv-00863-GEB Tammy Lynn Figuera, 11 DISMISSAL ORDER Appellant, 12 v. 13 14-21730-A-7 Jesbir Brar, 14 Appellee. 15 16 17 Appellant Tammy Lynn Figuera (“Appellant”) filed a 18 Notice 19 Bankruptcy Appeal 7, ECF No. 1.) Appellee subsequently elected to 20 have this Court decide the appeal; therefore, the appeal was 21 transferred from the Ninth Circuit Bankruptcy Appellate Panel to 22 this Court on April 7, 2014. (Id. at 1-4.) of Bankruptcy Appeal on March 26, 2014. (Notice of 23 On April 9, 2014, the Clerk’s Office notified Appellant 24 the “next step in prosecuting [her] appeal is compliance with 25 F.R.B.P. 8006 and 8007[, which] require the appellant to file 26 within 14 days a designation of record, statement of issues on 27 appeal[,] and a notice regarding the ordering of transcripts with 28 1 1 the 2 omitted).) bankruptcy court.” (Opening Letter, ECF No. 2 (emphasis 3 Appellant filed a motion in this Court on April 23, 4 2014, which was construed as a request to extend time under 5 Federal Rules of Bankruptcy Procedure (“Rules”) 9001(b) to file a 6 designation 7 (Appellant’s Mot., ECF No. 3.) That request was denied without 8 prejudice on April 29, 2014, since it “should [have] be[en] filed 9 in the bankruptcy court.” (Order 2:1-3, ECF No. 4.) of record and statement of issues on appeal. 10 There was no further activity concerning the appeal in 11 this Court. Further, a “Notice of Incomplete or Delayed Record to 12 District 13 bankruptcy court on July 23, 2014, which states Appellant has not 14 filed in the bankruptcy court a designation of record, statement 15 of 16 transcript. (ECF No. 5.) The July 23, 2014 Notice further states 17 Appellant has not paid her filing fee. (Id.) Court issues, Re: Bankruptcy reporter’s Cases” transcript, was or received notice from regarding the the 18 Therefore, Appellant was Ordered to Show Cause (“OSC”) 19 in a writing to be filed in this Court no later than August 18, 20 2014, why her bankruptcy appeal should not be dismissed under 21 Federal 22 prosecute 23 Bankruptcy Procedure. (OSC, ECF No. 6.) Rule of Civil and/or comply Procedure with the 41(b) Federal for her Rules of failure Civil to and 24 Appellant has not responded to the OSC. Therefore, the 25 Court considers whether this action should be dismissed under 26 Rule 41(b) for failure to prosecute. Ash v. Cvetkov, 739 F.2d 27 493, 496 (9th Cir. 1984) (“It is within the inherent power of the 28 court to sua sponte dismiss a case for lack of prosecution.”). 2 1 In determining whether to dismiss a[n appeal] for failure to prosecute . . . , the Court must weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to [Appellee]; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. 2 3 4 5 6 7 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The 8 9 dismissal first here has and because factors Appellant’s to prosecute her 12 manage its docket. See Yourish v. Cal. Amplifier, 191 F.3d 983, 13 990 14 resolution of litigation always favors dismissal.”); Pagtalunan, 15 291 F.3d at 642 (“It is incumbent upon the Court to manage its 16 docket 17 litigants. . . .”). without being public’s subject to in of resolution of litigation and undermines the Court’s ability to (“The interest favor 11 1999) public’s failure in appeal Cir. the weigh 10 (9th impaired second interest routine in expeditious expeditious noncompliance of 18 The third factor concerning the risk of prejudice to 19 Appellee considers the strength of Appellant’s excuse for non- 20 compliance. See Pagtalunan, 291 F.3d at 642-43 (indicating “the 21 risk of prejudice” is related to Appellant’s reason for failing 22 to prosecute). Since Appellant has provided no reason for her 23 failure to prosecute her appeal, the third factor also favors 24 dismissal. 25 The fourth factor concerning the public policy favoring 26 disposition of cases on their merits, weighs against dismissal of 27 the appeal. Id. at 643 (“Public policy favors disposition of 28 cases on the merits.”). 3 1 The fifth the warning that her appeal could be dismissed as a result. See 5 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (stating 6 “a district court’s warning to a party that his failure to obey 7 the 8 ‘consideration of alternatives’ requirement”). Since the balance of in dismissal the factors can in favor has 4 result weighs Court dismissal since Appellant failed to respond to the OSC despite will also the 3 order sanctions, whether considered 9 drastic concerning 2 court’s less factor satisfy strongly of the favors 10 dismissal of this appeal, Appellant’s appeal is dismissed. The 11 Clerk of the Court shall close this action. 12 Dated: September 4, 2014 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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