in re Jacqueline C. Melcher aka Jacqueline Carlin
Filing
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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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