Mallory v. Sterling Pacific Lending, Inc. et al

Filing 3

ORDER TO SHOW CAUSE. Signed by Judge Beth Labson Freeman on 2/10/2016. (blflc2S, COURT STAFF) (Filed on 2/10/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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STAR MALLORY,

Case No. 15-cv-04005-BLF

Appellant,
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v.

ORDER TO SHOW CAUSE

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STERLING PACIFIC LENDING, INC.,

[Re: ECF 2]

Appellee.

United States District Court
Northern District of California

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To Appellant Star Mallory, you are hereby ORDERED to SHOW CAUSE why this case

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should not be dismissed for failure to prosecute and failure to comply with the Federal Rules of

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Bankruptcy Procedure and the Bankruptcy Local Rules.

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On September 1, 2015, the Clerk docketed Appellant’s Notice of Appeal of the Bankruptcy

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Court’s order dismissing her Chapter 13 bankruptcy for ineligibility under 11 U.S.C. § 109(e).

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ECF 1; see also In re Star Mallory, 15-bk-50839, Docket. No. 35. On September 3, 2015, the

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Clerk filed an Initial Case Management Scheduling Order, directing the parties to perfect the

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record pursuant to the Federal Rules of Bankruptcy. ECF 2.

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Under Bankruptcy Rule 8009, formerly Rule 8006, parties appealing a bankruptcy court

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order must file “a designation of the items to be included in the record on appeal and a statement

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of the issues to be presented” within 14 days of filing a notice of appeal. Fed. R. Bankr. P.

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8009(a). Within that same period, the appellant must order a transcript of the proceedings and file

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a copy of the order with the bankruptcy clerk or file a certificate stating that s/he is not ordering a

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transcript. Fed. R. Bankr. P. 8009(d). To date, Appellant has filed nothing but her Notice of

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Appeal in relation to this appeal before this Court or the bankruptcy court.

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The federal and local rules make clear that such failure may result in dismissal. “An

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appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect

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the validity of the appeal, but is ground only for the district court or BAP to act as it considers

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appropriate, including dismissing the appeal.” Fed. R. Bankr. P. 8003(a)(2) (emphasis added).

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Pursuant to the local rule, “[i]f the appellant fails to perfect the appeal in the manner prescribed by

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Bankruptcy Rule 800[9], any appellee may file a motion in the District Court to dismiss the

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appeal” or the Bankruptcy Court may recommend that the appeal be dismissed. Bankr. L. R. 8007-

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1. See also In re Fitzsimmons, 920 F.2d 1468, 1472 (9th Cir. 1990) (discussing previous versions

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of federal and local rules with same language as “two rules that warn[] of dismissal”).

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Approximately five months have passed since Appellant filed her Notice of Appeal. She has
taken no action in the case since then. Accordingly, the Court hereby ORDERS Appellant to show

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United States District Court
Northern District of California

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cause why these cases should not be dismissed for failure to prosecute and failure to comply with the

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Federal Rules of Bankruptcy Procedure and the Bankruptcy Local Rules. Appellant has until

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February 24, 2016 to file a response to this order. Failure to do so may result in dismissal.

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IT IS SO ORDERED.
Dated: February 10, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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