Whitney v. Pacific Trading Ventures et al

Filing 3

ORDER DIRECTING APPELLANT TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED FOR FAILURE TO DESIGNATE RECORD. Appellant is ordered to show cause, in writing and filed with the Clerk of the District Court no later than January 10, 2014, why the appeal should not be dismissed pursuant to Rule 8001(a).Signed by Judge Maxine M. Chesney on December 23, 2013. (mmclc1, COURT STAFF) (Filed on 12/23/2013)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 For the Northern District of California United States District Court 10 11 In re No. C-13-5766 MMC 12 PACIFIC THOMAS CORPORATION, dba THOMAS CAPITAL, dba SAFE STORAGE, Bankruptcy Adv. Proc. No. 13-04079 MEH ORDER DIRECTING APPELLANT TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED FOR FAILURE TO DESIGNATE RECORD 13 Debtor. 14 ___________________________________ 15 KYLE EVERETT, Chapter 11 Trustee, 16 Plaintiff 17 v. 18 RANDALL WHITNEY, et al., 19 Defendants. 20 / 21 22 Before the Court is appellant Randall Whitney’s Notice of Appeal, filed with the Clerk 23 of the Bankruptcy Court on December 2, 2013. The Court’s review of the matter indicates 24 that appellant has failed to take any steps to designate the record on appeal, and, 25 consequently, as set forth below, appellant will be ordered to show cause why the appeal 26 should not be dismissed. 27 “Within 14 days after filing the notice of appeal . . . , the appellant shall file with the 28 clerk and serve on the appellee a designation of the items to be included in the record on 1 appeal and a statement of the issues to be presented.” Fed. R. Bankr. P. 8006. “Any party 2 filing a designation of the items to be included in the record shall provide to the clerk a copy 3 of the items designated or, if the party fails to provide the copy, the clerk shall prepare the 4 copy at the party’s expense.” Id. “If the record designated by any party includes a 5 transcript of any proceeding or a part thereof, the party shall, immediately after filing the 6 designation, deliver to the reporter and file with the clerk a written request for the transcript 7 and make satisfactory arrangements for payment of its cost.” Id. 8 9 Here, as noted, appellant filed his notice of appeal on December 2, 2013. The docket of the bankruptcy court proceeding, however, contains no entry showing appellant 10 has, at any time thereafter, let alone within the time required by Rule 8006, filed his 11 designation of items to be included in the record on appeal and his statement of issues to 12 be presented. See Everett v. Whitney, Adversary Proceeding No. 13-04079 MEH. “An 13 appellant’s failure to take any step other than timely filing a notice of appeal does not affect 14 the validity of the appeal, but is ground . . . for such action as the district court . . . deems 15 appropriate, which may include dismissal of the appeal.” Fed. R. Bankr. P. 8001(a); see, 16 e.g., In re Champion, 895 F.2d 490, 492 (8th Cir. 1990) (affirming dismissal of bankruptcy 17 appeal, where appellant “failed to file either a designation of the record or a statement of 18 issues as required by Rule 8006”) 19 Accordingly, appellant is hereby ORDERED TO SHOW CAUSE, in writing and filed 20 with the Clerk of the District Court no later than January 10, 2014, why the above-titled 21 appeal should not be dismissed pursuant to Rule 8001(a). 22 IT IS SO ORDERED. 23 24 Dated: December 23, 2013 MAXINE M. CHESNEY United States District Judge 25 26 27 28 2

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