Abellan et al v. Lieberman et al

Filing 13

ORDER DISMISSING APPEAL. Signed by Judge Hamilton on 6/10/11. (pjhlc3, COURT STAFF) (Filed on 6/10/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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IN RE RIZALINA ABELLAN,
Debtor/Appellant.

No. C 11-0401 PJH
Bankr. Case No. No. 10-34186 DM

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DISMISSAL ORDER
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___________________________/
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On May 13, 2011, the court issued an order to show cause re: why this case should
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not be dismissed based on appellant’s failure to perfect the record in this bankruptcy
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appeal filed nearly five months ago. In that order, the court advised appellant that if he
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wishe[d] to proceed with this appeal, he is ORDERED to file with the
bankruptcy court his designation of the items to be included with the record
on appeal and the statement of issues on appeal as required by FRBP 8006
no later than Friday, May 27, 2011. Given that both items are currently
three months overdue, Abellan is advised that if he fails to timely file the
documents with the bankruptcy court in accordance with this order, the
court will dismiss this bankruptcy appeal for failure to prosecute pursuant to
FRBP 8001.

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Review of this court’s docket and that of the bankruptcy court reveals that appellant

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failed to file the designation of record and statement of issues in accordance with this

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court’s order. Nor has appellant filed any comprehensible explanation regarding his failure

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to comply with the May 13, 2011 order.

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The court notes that throughout this appeal, appellant has filed a number of
incomprehensible documents suggesting that he is unaware of the nature of this

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proceeding. In fact, in its April 8, 2011 order following appellant’s filing of documents

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entirely irrelevant and unrelated to the appeal, including one that purported to be a motion,

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the court

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advised [appellant] that the ONLY issue before this court in this bankruptcy appeal is
whether the bankruptcy court abused its discretion when it dismissed
Abellan’s Chapter 13 case for failure to comply with his filing requirements.
There is NO civil complaint pending before this court - only the appeal, which does
NOT concern the real property at issue. To the extent that Abellan seeks relief
regarding the state court order, that relief is appropriately sought in the state court
case. Abellan is NOT permitted to file an improper appeal of state court orders in
the context of this bankruptcy appeal.

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On May 25, 2011, and June 1, 2011, appellant again filed with this court (and not with the
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bankruptcy court) incomprehensible documents that are neither a designation of the record
nor a statement of the issues, nor do they explain why appellant has failed to file either
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For the Northern District of California

United States District Court

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document as required by the Federal Rules of Bankruptcy Procedure and this court’s prior
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order.
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Accordingly, given appellant’s failure to perfect the appeal and comply with the
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court’s order, the court DISMISSES the appeal for failure to prosecute pursuant to Federal
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Rule of Bankruptcy Procedure 8001 and Federal Rule of Civil Procedure 41(b). See
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Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987).
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IT IS SO ORDERED.
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Dated: June 10, 2011
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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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cc:
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Clerk of the Bankruptcy Court, San Francisco Div.
Honorable Dennis Montali

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