Viola v. Davis

Filing 22

STIPULATION AND ORDER re 20 Amended MOTION to Stay. 17 MOTION to Stay terminated. Signed by Judge Edward M. Chen on 3/25/16. (bpf, COURT STAFF) (Filed on 3/25/2016)

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TRACY HOPE DAVIS
United States Trustee
TERRI H. DIDION State Bar # CA133491
Trial Attorney
UNITED STATES DEPARTMENT OF JUSTICE
Office of the United States Trustee
2500 Tulare Street, Suite 1401
Fresno, CA 93721
Telephone: [phone] ext. 235
Fax: [phone]
[e-mail]
Attorney for Tracy Hope Davis,
United States Trustee

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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In re:

)
)
JOSEPH JOHN VIOLA,
)
)
)
Appellant,
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v.
)
)
UNITED STATES TRUSTEE,
)
Appellee. )
_____________________________ )

Case No. 3:16-cv-00181-EMC
Bankruptcy Case No. 10-30904 DM
Adversary No. 10-3154 DM
San Francisco Division
AMENDED
UNITED STATES TRUSTEE’S
MOTION TO STAY APPEAL
BRIEFING DEADLINES

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Appellee, Tracy Hope Davis, the United States Trustee for Region 17

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(United States Trustee”), hereby file this Motion to Stay Appeal Briefing

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Deadlines until the Court has considered the Motion for Dismissal of Untimely

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Appeal filed by the United States Trustee. (Dkt. No. 9). This motion is brought

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pursuant to Fed. R. Bankr. P. 8013(b) and 9006(b)(1) and Civil LR 6-1(b) and 6-

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3:16-cv-00181 EMC
MOTION TO STAY APPEAL DEADLINES

3. The motion is made with reference to the following:

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1. Status of the Appeal

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This proceeding was commenced on January 8, 2016, when Appellant

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filed a notice of appeal of the bankruptcy court’s entry of default under Fed. R.

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Civ. P. 55(a)(made applicable by Fed. R. Bankr. P. 7055) after Appellant failed to

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file and serve an answer to a complaint objecting to his bankruptcy discharge.

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(A.P. Dkt. No. 54). 1 Appellant filed a designation of record and a statement of the

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issues. (A.P. Dkt. No. 67).
In accordance with Fed. R. Bankr. P. 8009, Appellee timely filed her

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supplement designation of record. (A.P. Dkt. No. 69). The record on appeal was

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transmitted by the bankruptcy court on March 11, 2016. (A.P. Dkt. No. 72). The

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District Court issued its Notice of Briefing setting forth the deadlines for the filing

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of the opening, responsive, and reply briefs in this appeal. (Dkt. No. 6).
In its report and recommendation to this court, the bankruptcy court stated

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(1) that the appeal is untimely under Fed. R. Bankr. P. 8002(a); (2) does not

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identify any specific order being appealed in violation of Fed. R. Bankr. P.

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8003(a)(3)(B); (3) utilizes a shotgun approach to designating documents that has

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severely impeded the bankruptcy court’s ability to certify and transmit the record

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in accordance with Fed. R. Bankr. P. 8009; (4) no appeal filing fee has been paid;

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and (5) that, as trial court, it certified pursuant to 28 U.S.C. § 1915(a)(3) that the

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appeal has not been taken in good faith, and thus may not be taken in forma

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pauperis. (Dkt. No. 11).
2. Request to Stay Appeal Deadlines

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a. When the briefs are currently due. Appellant’s opening brief was

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due on March 16, 2016. The brief was filed with the court on March 17, 2016, and

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“A.P. Docket” refers to the docket for Adversary Proceeding No. 3:10-ap-3154-DM of the
United States Bankruptcy Court, Northern District of California, San Francisco Division.

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3:16-cv-00181 EMC
MOTION TO STAY APPEAL DEADLINES

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served on the United States Trustee on March 14, 2016. (Dkt. No. 16). Pursuant to

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the text of docket entry no. 16, Appellee’s answering brief is due on April 7, 2016.

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A reply brief by Appellant is due on or about April 21, 2016.
b. How many extensions of time or stays have been granted? No

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prior extensions or stays have been requested.

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c. Reason why the stay is necessary. The United States

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Trustee filed a Motion for Dismissal of Untimely Appeal on March 10, 2016, and

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it is pending on this court’s docket. (Dkt. No. 9). Until such time that the court

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considers and decides the motion to dismiss Appellant’s appeal, any further

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briefing deadlines should be stayed. A short suspension of the appellate

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proceedings will not prejudice any of the parties.
d. Specific amount of time requested. The United States Trustee

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seeks a stay of the remaining briefing deadlines pending the outcome of her

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motion to dismiss the appeal.2 If the motion is granted, there will be no need for

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any further briefs to be filed. If the motion is denied, the United States Trustee will

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file her responsive brief within thirty (30) days after the entry of the Court’s order

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denying the motion to dismiss, and the bankruptcy appeal will proceed on the

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merits. See Declaration of Terri H. Didion filed concurrently with the motion.
3. Conclusion

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Wherefore, the United States Trustee requests that this motion to stay appeal

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deadlines be granted as follows:
a. The District Court shall suspend all remaining appeal briefing deadlines,

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effective the date of the filing of this motion, pending the decision

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Fed. R. Bankr. P. 8013(b) provides authority for seeking a motion for a procedural order,
which includes a motion for enlargement of time, if the motion is made prior to the expiration of
the original deadline. The court may rule on such a motion at any time without notice or waiting
for a response. Fed. R. Bankr. P. 8013(b) and 9006(b)(1).
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MOTION TO STAY APPEAL DEADLINES

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regarding the United States Trustee’s motion to dismiss the appeal filed

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as docket number 9.

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b. If the District Court grants the motion to dismiss, no further briefing will
be required by the parties to this bankruptcy appeal.
c. If the District Court denies the motion to dismiss, the United States

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Trustee will file her responsive brief within thirty (30) days after the

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entry of the order denying the motion to dismiss. Appellant’s reply brief

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will be due fourteen (14) days after service of the United States Trustee’s

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responsive brief.

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Dated: March 23, 2016

Respectfully Submitted,
By: /s/ TERRI H. DIDION
Terri H. Didion
Trial Attorney for U.S. Trustee

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3:16-cv-00181 EMC
MOTION TO STAY APPEAL DEADLINES

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Exhibit A
[Proposed Order Granting Motion to Stay Appeal Deadlines]

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MOTION TO STAY APPEAL DEADLINES

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TRACY HOPE DAVIS
United States Trustee
TERRI H. DIDION CSB #133491
Trial Attorney
UNITED STATES DEPARTMENT OF JUSTICE
Office of the United States Trustee
2500 Tulare Street, Suite 1401
Fresno, CA 93721
Telephone: [phone] ext. 235
Fax: [phone]
[e-mail]
Attorney for Tracy Hope Davis,
United States Trustee

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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In re:

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JOSEPH JOHN VIOLA,
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Debtor.
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______________________________ )
JOSEPH JOHN VIOLA,
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Appellant, )
vs.
)
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UNITED STATES TRUSTEE,
)
)
Appellee. )
____________________________ )

Case No. 3:16-cv-00181-EMC

Bankruptcy Case No. 10-30904 DM
Adversary No. 10-3154 DM
San Francisco Division

[PROPOSED] ORDER GRANTING
UNITED STATES TRUSTEE’S
MOTION TO STAY APPEAL
BRIEFING DEADLINES

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On March 23, 2016, Tracy Hope Davis, the United States Trustee for
Region 17 (“Appellee”), filed her motion to stay appeal briefing deadlines until the
Court has considered a pending Motion for Dismissal of Untimely Appeal filed

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3:16-cv-00181 EMC
MOTION TO STAY APPEAL DEADLINES

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by Appellee. (Dkt. No. 9). Pursuant to Fed. R. Bankr. P. 8013(b) and 9006(b)(1),

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the court may stay the briefing deadlines without notice or waiting for a response.

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The court finds that a short suspension of the appellate proceedings will not

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prejudice any of the parties.
IT IS HEREBY ORDERED THAT

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1. The United States Trustee’s motion to stay appeal briefing deadlines is
granted.

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2. The Court shall suspend all remaining appeal briefing deadlines, effective

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the date of the filing of this motion, pending the decision regarding the

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United States Trustee’s motion to dismiss the appeal filed as docket

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number 9.

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3. If the Court grants the motion to dismiss, no further briefing will be
required by the parties to this bankruptcy appeal.

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4. If the Court denies the motion to dismiss, the United States Trustee will file

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her responsive brief within thirty (30) days after the entry of the order

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denying the motion to dismiss. Appellant’s reply brief will be due fourteen

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(14) days after service of the United States Trustee’s responsive brief.

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IT IS SO ORDERED.

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M. Chen

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ORDERED

Judge Edward

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NO

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ERED

________________________
O ORD
IT IS S
Hon. Edward M. Chen
United States District Court Judge
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3/25/16

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Dated:

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MOTION TO STAY APPEAL DEADLINES

PROOF OF SERVICE

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I, Terri H. Didion, declare as follows:

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I am a resident of and employed in the State of California, County of Fresno. I am over
the age of 18 years and not a party to the above-entitled action. On March 23, 2016, I served a
true and correct copy of the following documents:

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1.
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United States Trustee’s Amended Motion to Stay Appeal Briefing Deadlines
Amended Declaration of Terri H. Didion in Support of Motion to Stay Appeal
Briefing Deadlines
Proposed Order Granting United States Trustee’s Motion to Stay Appeal
Briefing Deadlines

on parties in this action as follows:
BY CM/ECF: I electronically filed the foregoing with the Clerk of the Court for the United
States District Court, Northern District of California, by using the CM/ECF system. I certify that
parties of record to this case who are either registered CM/ECF users, or who have registered for
electronic notice, or who have consented in writing to electronic service will be served through
the CM/ECF system as follows: NONE.
BY U.S. MAIL: All non-registered CM/ECF users are served by 1st class mail, postage prepaid
as follows:

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Appellant, Pro Se
Joseph John Viola
Aspc Yuma-Cibola, 6a47
P.O. Box 8909
San Luis, AZ 85349

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I declare under penalty of perjury that the documents were served by methods indicated above
and the foregoing is true and correct.

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Dated: March 23, 2016.

/s/ Terri H. Didion
Terri H. Didion
Attorney for United States Trustee

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MOTION TO STAY APPEAL DEADLINES