In Re: Blankenhorn

Filing 15

ORDER DISMISSING APPEAL. Signed by Judge Maxine M. Chesney on October 28, 2011. (mmclc1, COURT STAFF) (Filed on 10/28/2011) (Additional attachment(s) added on 10/28/2011: # 1 Certificate of Service) (tlS, COURT STAFF).

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 In re: No. C-11-3812 MMC 10 BRUCE ALLEN BLANKENHORN, Bankruptcy Case No. 11-31835 TC 11 Debtor. ___________________________________ ORDER DISMISSING APPEAL 12 DANIEL J. ROSENBLEDT, For the Northern District of California United States District Court 9 13 14 Movant v. 15 BRUCE ALLEN BLANKENHORN, et al., 16 Respondents. / 17 18 By order filed September 22, 2011, the Court directed appellant Bruce Allen 19 Blankenhorn (“Blankenhorn”) to show cause, in writing and no later than October 7, 2011, 20 why the above-titled appeal should not be dismissed for failure to prosecute. Blankenhorn 21 has not filed a response to the order to show cause. Having reviewed the matter, the Court 22 rules as follows. 23 At the outset, the Court notes that, subsequent to the above-referenced order, 24 Blankenhorn filed a notice of appeal from a different order issued by this Court on 25 September 22, 2011, specifically, an Order Denying Appellant’s Motion for Stay Pending 26 Appeal.1 Although “the filing of a notice of appeal generally divests the trial court of 27 1 28 In the notice of appeal thereof, Blankenhorn incorrectly characterizes the Order Denying Appellant’s Motion for Stay as an order “denying [Blankenhorn’s] appeal of the bankruptcy court as moot.” (See Notice of Appeal, filed September 26, 2011, at 1.) 1 jurisdiction,” see In re Silberkraus, 336 F.3d 864, 869 (2003), “an appeal from an 2 interlocutory order does not divest the trial court of jurisdiction to continue with other 3 phases of the case,” see Plotkin v. Pacific Telephone & Telegraph Co., 688 F.2d 1291, 4 1293 (9th Cir. 1982) (holding district court had jurisdiction to “enter summary judgment 5 during pendency of [an] appeal from [an] interlocutory order denying injunctive relief”); see 6 also In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1299-1300 (7th Cir. 1997) (1997) 7 (holding district court order denying stay of bankruptcy court order pending appeal is 8 interlocutory order). Accordingly, the Court has jurisdiction to consider whether the instant 9 appeal should be dismissed for failure to prosecute. 10 As noted, Blankenhorn failed to file a response to the September 22, 2011 order to 11 show cause, and, consequently, has provided no explanation for his failure to prosecute 12 and, in particular, for his failure to comply with Rule 8006 of the Federal Rules of 13 Bankruptcy Procedure. See Fed. R. Bankr. P. 8006 (providing that “[w]ithin 14 days after 14 filing the notice of appeal . . . , the appellant shall file with the clerk and serve on the 15 appellee a designation of the items to be included in the record on appeal”).2 In an 16 abundance of caution, the Court nonetheless has reviewed the docket of the bankrupty 17 court proceedings. See In re Blankenhorn, Case No. 11-31835 TC. As was the case at the 18 time the Court filed its order to show cause, however, said docket contains no entry 19 designating the items to be included in the record on appeal. 20 21 22 Accordingly, Blankenhorn having failed to prosecute his appeal and having failed to set forth any explanation for said failure, the Court hereby DISMISSES the appeal. IT IS SO ORDERED. 23 24 Dated: October 28, 2011 MAXINE M. CHESNEY United States District Judge 25 26 27 28 2 The notice of appeal from the Bankruptcy Court’s order was filed on July 26, 2011. 2

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