McCoy v. Waukeen Q McCoy et al

Filing 14

ORDER DENYING MOTION TO DISMISS FOR LACK OF PROSECUTION by Hon. William Alsup denying 9 Motion to Dismiss.(whalc1, COURT STAFF) (Filed on 6/24/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WAUKEEN Q. MCCOY,

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For the Northern District of California

United States District Court

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Appellant,

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No. C 16-01536 WHA

v.
E. LYNN SCHOENMANN,

ORDER DENYING MOTION
TO DISMISS FOR LACK
OF PROSECUTION

Appellee.
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The record in this bankruptcy appeal was docketed and certified on May 3 (Dkt.

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Nos. 3–6). A scheduling order provided that appellant’s opening brief was due “no more than

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30 days after docketing of notice that the record has been transmitted or is available

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electronically on the District Court’s docket” (Dkt. No. 7). The bankruptcy court transmitted

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further documents for consideration as part of the record on May 25 (Dkt. No. 8).

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On June 8, appellee moved to dismiss the appeal for lack of prosecution because

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appellant had not yet filed his opening brief, although 30 days had elapsed since the initial

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record had been docketed. On June 9, appellant, who is proceeding pro se, responded stating

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that he understood his brief would be due on June 27, thirty days following the supplementation

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of the record. On June 24, appellee replied that the supplementation of the record did not

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amend the scheduling order, so appellant should have sought an extension. Appellant filed his

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opening brief on June 24.

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The scheduling order did not specify a deadline of June 2. That date only appeared in

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the description of the docket entry on ECF. Appellant perhaps reasonably believed that the

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supplementation of the record restarted the clock. Moreover, appellee will suffer no prejudice

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as a result of this delay. Appellee’s motion to dismiss the action for lack of prosecution is

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DENIED.

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IT IS SO ORDERED.

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Dated: June 24, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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