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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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In re:

No. C-11-3812 MMC

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BRUCE ALLEN BLANKENHORN,

Bankruptcy Case No. 11-31835 TC

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Debtor.
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ORDER DISMISSING APPEAL

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DANIEL J. ROSENBLEDT,

For the Northern District of California

United States District Court

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Movant
v.

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BRUCE ALLEN BLANKENHORN, et al.,

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Respondents.

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By order filed September 22, 2011, the Court directed appellant Bruce Allen

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Blankenhorn (“Blankenhorn”) to show cause, in writing and no later than October 7, 2011,

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why the above-titled appeal should not be dismissed for failure to prosecute. Blankenhorn

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has not filed a response to the order to show cause. Having reviewed the matter, the Court

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rules as follows.

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At the outset, the Court notes that, subsequent to the above-referenced order,

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Blankenhorn filed a notice of appeal from a different order issued by this Court on

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September 22, 2011, specifically, an Order Denying Appellant’s Motion for Stay Pending

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Appeal.1 Although “the filing of a notice of appeal generally divests the trial court of

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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.)

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jurisdiction,” see In re Silberkraus, 336 F.3d 864, 869 (2003), “an appeal from an

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interlocutory order does not divest the trial court of jurisdiction to continue with other

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phases of the case,” see Plotkin v. Pacific Telephone & Telegraph Co., 688 F.2d 1291,

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1293 (9th Cir. 1982) (holding district court had jurisdiction to “enter summary judgment

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during pendency of [an] appeal from [an] interlocutory order denying injunctive relief”); see

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also In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1299-1300 (7th Cir. 1997) (1997)

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(holding district court order denying stay of bankruptcy court order pending appeal is

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interlocutory order). Accordingly, the Court has jurisdiction to consider whether the instant

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appeal should be dismissed for failure to prosecute.

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As noted, Blankenhorn failed to file a response to the September 22, 2011 order to

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show cause, and, consequently, has provided no explanation for his failure to prosecute

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and, in particular, for his failure to comply with Rule 8006 of the Federal Rules of

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Bankruptcy Procedure. See Fed. R. Bankr. P. 8006 (providing that “[w]ithin 14 days after

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filing the notice of appeal . . . , the appellant shall file with the clerk and serve on the

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appellee a designation of the items to be included in the record on appeal”).2 In an

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abundance of caution, the Court nonetheless has reviewed the docket of the bankrupty

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court proceedings. See In re Blankenhorn, Case No. 11-31835 TC. As was the case at the

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time the Court filed its order to show cause, however, said docket contains no entry

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designating the items to be included in the record on appeal.

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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.

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Dated: October 28, 2011
MAXINE M. CHESNEY
United States District Judge

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The notice of appeal from the Bankruptcy Court’s order was filed on July 26, 2011.
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