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