Poonja et al v. International Contract Technologies

Filing 11

ORDER RE RECORD ON APPEAL. Signed by Judge Hamilton on 11/7/11. (pjhlc3, COURT STAFF) (Filed on 11/7/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In re MESATRONIC USA, INC,
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Debtor.
______________________________________/

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INTERNATIONAL CONTACT TECHNOLOGIES
INCORPORATED,

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Defendant/Appellant,
v.

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For the Northern District of California

United States District Court

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No. C 10-5868PJH
Bankr. Case No. 08-53287 SLJ
Adv. Case No. 09-5049 SLJ
ORDER RE RECORD ON APPEAL

MOHAMMED POONJA, TRUSTEE,
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Plaintiff/Appellee.
____________________________________/

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On December 22, 2010, defendant/appellant International Contact
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Technologies (“ICT”) appealed the bankruptcy court’s findings of fact and conclusions of
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law as contained in its December 6, 2010 memorandum decision following a bench trial in
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the above adversary case. ICT subsequently elected to have the appeal heard by this
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court as opposed to the Ninth Circuit Bankruptcy Appellate Panel. On December 23, 2010,
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the appeal was assigned to the Honorable Jeremy Fogel. On September 16, 2011,
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because there appeared to have been no activity on the appeal, Judge Fogel dismissed the
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appeal for failure to prosecute.
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However, on October 21, 2011, Judge Fogel subsequently vacated the dismissal
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because there appeared to have been some error regarding perfection of the record below
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in the bankruptcy court. That same day, the case was reassigned to the undersigned
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judge.
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This court has reviewed the papers filed and the docket below and notes that this
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court’s clerk’s office has not received copies of the record below. Both ICT and Poonja
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designated copies of the items to be included in the record on appeal, but neither appears

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to have provided the bankruptcy court with copies of the items to be included in the record.

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Federal Rule of Bankruptcy Procedure 8006 requires the parties to provide the bankruptcy

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clerk with copies of the designated items or for the bankruptcy clerk to prepare the copies

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at the parties’ expense and then bill the parties. It is unclear to the court exactly why the

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record still has not been transmitted to this court. Accordingly, because this appeal has

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already been pending for nearly a year and the record is still not perfected, the court

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ORDERS both parties to provide the bankruptcy court clerk with copies of all of the

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designated items for transmission to this court no later than fourteen days from the date

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of this order.
Additionally, the court notes that ICT suggests that it will not be ordering the

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For the Northern District of California

United States District Court

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transcripts of the bench trial for this court’s adjudication of the appeal. To the extent that

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ICT elects not to provide this court with a transcript of the proceedings below on appeal, the

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court will defer to the bankruptcy court as to any issues of fact or mixed issues for which

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transcripts would normally be required. To the extent that ICT intends to raise any such

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issues on appeal, it is strongly encouraged to provide this court with transcripts from the

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November 30, 2010 bench trial before the bankruptcy court. The court therefore grants ICT

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leave to amend its designation to include transcripts from the hearing. ICT is required to

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amend its designation and to ensure preparation and transmission of the transcripts to this

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court no later than thirty days from the date of this order.

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If the parties fail to provide the bankruptcy court clerk with copies of the record for

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transmission to this court or to properly secure any transcripts on appeal in accordance

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with this order, the appeal will be dismissed for failure to prosecute. The court will issue a

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briefing order once this court’s clerk’s office has received the entire record on appeal,

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including any transcripts subsequently designated.

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IT IS SO ORDERED.
Dated: November 7, 2011

______________________________
PHYLLIS J. HAMILTON
United States District Judge

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