IN RE: William Cheng; Janet Cheng

Filing 26

ORDER signed by District Judge Troy L. Nunley on 3/9/2016 ORDERING the Court DISMISSES Appellants' appeal for failure to adhere to this Court's scheduling order and as MOOT. CASE CLOSED(Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM CHENG and JANET CHENG,

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No. 2:15-cv-01617-TLN

Appellants,
ORDER DISMISSING APPEALLANTS’
BANKRUPTCY APPEAL

v.
ARTHUR OSTERBACK, et al.
Appellees.

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This matter is before the Court pursuant to Appellants William and Janet Cheng’s

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bankruptcy appeal. (ECF No. 1.) The Notice of Appeal in this case was filed on July 28, 2015.

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(ECF No. 1.) Pursuant to Federal Rule of Bankruptcy Procedure 8006 and 8007, Appellants were

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required to file within fourteen (14) days their designation of record, statement of issues on

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appeal, and a notice regarding the ordering of transcripts with the bankruptcy court. (ECF No. 2.)

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Appellant moved for an extension of time twice, and this Court granted both extensions, however,

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the Court admonished Appellant that no further extensions would be granted. (See Min. Orders

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ECF No. 4, 9.) Even after extending the deadlines, Appellants failed to timely file the necessary

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documents, and this Court was forced to issue Orders to Show Cause on two different occasions

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in order to compel Appellants’ cooperation. (See Orders to Show Cause, ECF No. 13, 16.)

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Appellants finally filed the necessary documentation and were issued a certificate of record on

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January 11, 2016, almost six months past the original deadline. (ECF No. 20.) In an effort to
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provide Appellants with a decision on the merits, this Court deemed such documents timely.

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However, the Court warned Appellants that it would not continue to accept late filings. On

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February 2, 2016, Appellants again petitioned this Court for an extension to file their opening

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brief. (ECF No. 21.) The Court denied the request and reiterated that the brief was due on or

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before February 4, 2016 and further warned Appellants that failure to timely file their opening

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brief would result in dismissal of their appeal.

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Appellants failed to meet the Court’s deadline. Instead, Appellants filed their brief on

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February 8, 2016. The time for compliance has come and gone, and this Court will not accept

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Appellants’ late filing. However, even in the event that the Court would deem Appellant’s brief

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timely, this appeal would be denied as moot.
On February 19, 2016, the Court was informed by Geoffrey Richard, the former Chapter 7

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Trustee in Appellants’ bankruptcy case, that the entire bankruptcy estate has been administered

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and that Mr. Richards has been discharged as the Trustee in this case as there is no longer a

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bankruptcy estate. (See ECF No. 24; see also Bankruptcy Court Dkt. No. 878.)

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The general test for mootness of an appeal is whether the appellate court can fashion

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effective relief under the current facts and circumstances. In other words, a case is not moot if the

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appellate court can give appellant any effective relief in the event that the matter is decided on the

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merits in appellant’s favor. Matter of Thorpe Insulation Co., 677 F3d 869, 880 (9th Cir. 2012).

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Although the Ninth Circuit has not expressly articulated a comprehensive test, it has extrapolated

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that its “precedents have looked at whether a stay was sought, whether the plan has been

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substantially consummated, whether third party rights have intervened, and, if so, whether any

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relief can be provided practically and equitably.” In re Thorpe Insulation Co., 677 F.3d 869,

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880‒81 (9th Cir. 2012).

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In the instant action, there is no proof that Appellants sought a stay, nor have Appellants

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alleged as much. Furthermore, the bankruptcy estate has been administered and the trustee

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discharged. Appellants’ failure to procure a stay and this Court’s inability to award relief due to

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the discharge of the estate all weigh in favor of finding that Appellant’s appeal is moot. See

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Baker & Drake, 35 F.3d at 1351 (1994) (“moot if a party opposing a reorganization plan has
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failed to obtain a stay pending appeal, and the plan has been carried out to ‘substantial

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[culmination].’”); In re Roberts Farms, Inc., 652 F.2d at 797–98 (1981) (moot if plan has been so

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far implemented that impossible to fashion effective relief or where party challenging plan fails to

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use due diligence to seek a stay); In re Spirtos, 992 F.2d at 1006 (1993) (moot if no stay and

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rights of third parties have intervened, but not if able to fashion relief that is both effective and

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equitable). As such, even had Appellants timely filed their briefing, the Court finds that the

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appeal is moot.

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For the foregoing reasons, the Court DISMISSES Appellants’ appeal for failure to adhere
to this Court’s scheduling order and as MOOT.
IT IS SO ORDERED.

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Dated: March 9, 2016

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Troy L. Nunley
United States District Judge

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