in re Jacqueline C. Melcher aka Jacqueline Carlin

Filing 16

ORDER DISMISSING APPEAL FOR FAILURE TO PROSECUTE; DENYING MOTION TO STAY PROCEEDINGS re 12 (rmwlc2, COURT STAFF) (Filed on 7/16/2012)

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E-FILED on 7/16/12

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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JACQUELINE CARLIN MELCHER,

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No. 12-cv-00336 RMW

Appellant,

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v.

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JOHN W. RICHARDSON, Trustee in
Bankruptcy,

ORDER DISMISSING APPEAL FOR
FAILURE TO PROSECUTE; DENYING
MOTION TO STAY PROCEEDINGS

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Appellee.
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Jacqueline C. Melcher commenced the above appeal on January 12, 2012. The record on

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appeal has not been transmitted by the Bankruptcy Court to the District Court, apparently because

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Ms. Melcher has not provided the clerk with an adequate designation of the record. See Declaration

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of Charles P. Maher Regarding Status of Appeal, Dkt. No. 8. Ms. Melcher has also failed to file an

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opening brief. On May 24, 2012, the court issued an order to show cause requiring Ms. Melcher to

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file a brief by June 3, 2012 explaining why her appeal should not be dismissed for failure to

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prosecute.

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On June 1, 2012, Ms. Melcher filed a brief entitled "Motion for Stay of Proceedings Pending

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Outcome of Court Ordered Mediation." Dkt. No. 12. She indicated that the Bankruptcy Court had

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"ordered mediation with efforts to resolve all appeals and other litigation" to be concluded in May or
ORDER DISMISSING APPEAL FOR FAILURE TO PROSECUTE; DENYING MOTION TO STAY PROCEEDINGS —No.
12-cv-00336 RMW
EDM

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June 2012, and requested a stay of her appeal pending that resolution of that process. Id. She

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attached an order of the Bankruptcy Court dated March 13, 2012, which included a handwritten note

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from Judge Weissbrodt indicating that "the trustee and debtor are strongly encouraged to work to see

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if a solution/settlement can be reached." Id.

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On June 4, 2012, Ms. Melcher filed a response to the order to show cause, referencing her

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June 1, 2012 brief and attaching a May 17, 2012 order from the Bankruptcy Court staying the effect

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of two earlier orders allowing the Trustee to market Ms. Melcher's residence pending the outcome of

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this appeal. See Dkt. No. 14, Ex. C. The May 17, 2012 order found that "a stay pending appeal is

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appropriate at least until the parties have concluded their efforts to mediate their disputes privately.

United States District Court
For the Northern District of California

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Both the Trustee and Debtor have consented to mediation and to allow the Trustee to market the

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property during mediation is antithetical to that consensual process." Id. at 4.

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As of the date of this order, it appears that no mediation has taken place, although each party

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blames the other for the delay. Thus, the bankruptcy proceedings have been stayed pending

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resolution of this appeal, and Ms. Melcher now seeks to stay this appeal pending resolution of a

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mediation that has not yet been scheduled.

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This court finds that Ms. Melcher has not shown good cause for either staying or sustaining

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this appeal. Simply put, the fact that a settlement is on the horizon does not excuse Ms. Melcher

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from perfecting a record or filing an opening brief for more than six months, particularly given her

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familiarity with the appeals process. Furthermore, regardless of any action taken by this court, if the

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Bankruptcy Court determines that the Trustee has delayed mediation in bad faith, it may uphold the

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stay of its previous orders if it determines that it is appropriate to do so. See Leyva v. Certified

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Grocers of California, Ltd., 593 F.2d 857, 863-864 (9th Cir. 1979) ("A trial court may, with

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propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of

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an action before it, pending resolution of independent proceedings which bear upon the case. This

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rule applies whether the separate proceedings are judicial, administrative, or arbitral in character,

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and does not require that the issues in such proceedings are necessarily controlling of the action

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before the court."). Indeed, as the Bankruptcy Court is more familiar with the instant proceedings

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ORDER DISMISSING APPEAL FOR FAILURE TO PROSECUTE; DENYING MOTION TO STAY PROCEEDINGS —No.
12-cv-00336 RMW
EDM
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than this court, it is in a far better position to decide whether a further stay is warranted.

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Accordingly, the court denies the motion to stay, and dismisses this appeal for failure to prosecute.

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It is so ordered.

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DATED:
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July 16, 2012
RONALD M. WHYTE
United States District Judge

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United States District Court
For the Northern District of California

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ORDER DISMISSING APPEAL FOR FAILURE TO PROSECUTE; DENYING MOTION TO STAY PROCEEDINGS —No.
12-cv-00336 RMW
EDM
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