Lona v. Abreu

Filing 16

ORDER by Judge Ronald M. Whyte denying 8 Motion to Dismiss for Lack of Prosecution; granting 14 Motion for Extension of Time to File. (rmwlc1, COURT STAFF) (Filed on 1/21/2009)

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 E-FILED on: 1/21/2009 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re: CORRINA CURIEL LONA, Debtor. No. C-08-03563 RMW [Re Docket Nos. 8, 14] ORDER GRANTING EXTENSION OF TIME TO FILE APPEAL BRIEF CORRINA CURIEL LONA, Appellant, v. JOSE ABREU dba INTERTEL COMMUNICATIONS, Appellee. Debtor Corrina Curiel Lona appeals from a bankruptcy court order after trial overruling Lona's objection to appellee Jose Abreu dba Intertel Communications claim against her in the amount of $439,000. Shortly after beginning the appellate process, Lona decided to represent herself. See Docket No. 3 (Aug. 4, 2008). This change in counsel may have led to Lona's failure to receive the clerk's notice setting a briefing schedule for the appeal.1 The briefing schedule called for The court's records, however, suggest that a copy of the briefing schedule was mailed to Lona's present address. See Docket No. 7 Service Receipt (Oct. 7, 2008). ORDER GRANTING EXTENSION OF TIME TO FILE APPEAL BRIEF No. C-08-03563 RMW TSF 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lona's opening brief to be due on November 6, 2008. Docket No. 7 (Oct. 7, 2008). It also set deadlines in November and December for Abreu's opposition brief and any reply briefing. See id. Lona failed to file her opening brief on appeal. On December 11, Abreu moved to dismiss the appeal for failure to prosecute. Upon receipt of Abreu's motion to dismiss, Lona claims that she became aware of the briefing schedule. Thus, on December 31, 2008, Lona filed a motion for an extension of time to file her opening brief, which the court also construes as an opposition to the motion to dismiss. The court has reviewed the papers and determined that this matter can be determined without oral argument. See Civil L.R. 7-1(b). The failure to comply with the court's briefing order may justify dismissal of an appeal. Bankr. R. 8001; In re Scheri, 51 F.3d 71, 74 (7th Cir. 1995). Nonetheless, the case law is clear that dismissal the ultimate sanction is not favored as a first corrective measure. See, e.g., English-Speaking Union v. Johnson, 353 F.3d 1013, 1022-23 (D.C. Cir. 2004) (suggesting alternative sanctions like fines or paying the appellee's attorney's fees). Indeed, as a general matter, dismissal tends to only be appropriate upon a showing of the appellant's bad faith or prejudice to the appellee. See id. Abreu has made no showing of prejudice in support of his motion to dismiss, and any evidence of Lona's bad faith has not been developed. The court therefore grants Lona's motion for an extension of time. Since many months have passed since Lona designated the record and identified the issues she seeks to appeal, the court extends the time for her to file her appellate brief to February 6, 2009. An opposition brief (and any cross-appeal) from Abreu will be due on February 27, 2009. Any reply brief (and opposition to any cross-appeal) will be due on March 11. Any reply to the opposition to any cross-appeal will be due on March 25. If the court deems a hearing necessary, it will schedule one. A failure by Lona to file her appellate brief by February 6 will result in the court issuing an order to show cause why the appeal should not be dismissed for want of prosecution. DATED: 1/21/2009 RONALD M. WHYTE United States District Judge ORDER GRANTING EXTENSION OF TIME TO FILE APPEAL BRIEF No. C-08-03563 RMW TSF 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of this document has been electronically sent to: Counsel for Appellee: Stevan Chazen Adelman Office of the U.S. Trustee Nanette Dumas Nanette.Dumas@USDOJ.gov sca@millermorton.com Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. Notice of this document has been mailed to: Appellant: Corrina Curiel Lona 360 Kiely Blvd. Suite 100 San Jose, CA 95129 Trustee, John W. Richardson: Charles P. Maher Luce, Forward, Hamilton & Scripps, LLP Rincon Center II 121 Spear Street Suite 200 San Francisco, CA 94105 USBC Manager San Jose USBC Manager-San Jose US Bankruptcy Court 280 South First Street Room 3035 San Jose, CA 95113 Honorable Roger L. Efremsky Roger L. Efremsky U.S. Bankruptcy Court 280 South First Street Room 3035 San Jose, CA 95113 Dated: 1/21/2009 TSF Chambers of Judge Whyte ORDER GRANTING EXTENSION OF TIME TO FILE APPEAL BRIEF No. C-08-03563 RMW TSF 3

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