Kim et al v. First Evangelicial Church of America

Filing 15

ORDER granting 14 Motion to Dismiss. Any other pending matters are TERMINATED and the Clerk shall close this file. Signed by Judge Edward J. Davila on 11/29/2017. (ejdlc1S, COURT STAFF) (Filed on 11/29/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 DONG WUK KIM, et al., Case No. 5:17-cv-01094-EJD Appellants, 9 ORDER GRANTING MOTION TO DISMISS v. 10 United States District Court Northern District of California 11 12 13 Re: Dkt. No. 14 FIRST KOREAN CHRISTIAN CHURCH OF SAN JOSE, et al., Appellees. Presently before the court is a Motion to Dismiss this bankruptcy appeal, filed by 14 Appellees. Dkt. No. 14. Appellants did not file written opposition to the motion, and the time for 15 filing such opposition has expired under both bankruptcy and district court rules. See Fed. R. 16 Bankr. P. 8013; see also Civ. L.R. 7-3. 17 18 19 20 21 Federal Rule of Bankruptcy Procedure 8018(a)(4) states: If an appellant fails to file a brief on time or within an extended time authorized by the district court or BAP, an appellee may move to dismiss the appeal - or the district court or BAP, after notice, may dismiss the appeal on its own motion. Here, the parties were notified by the district court Clerk that the record on appeal was 22 complete as of April 19, 2017. Dkt. No. 11. Pursuant to the scheduling order issued when this 23 appeal was docketed, Appellants were required to file their principal brief no later than 30 days 24 from the date of that notice, or by May 19, 2017. Dkt. No. 2; Fed. R. Bankr. P. 8018(a). They did 25 not do so and did not explain their default in opposition to this motion. 26 Appellants’ failure to prosecute this appeal in a manner that complies with the scheduling 27 order, and indeed their silence in response to a motion seeking dismissal, each constitutes 28 Case No.: 5:17-cv-01094-EJD ORDER GRANTING MOTION TO DISMISS 1 sufficient grounds to dismiss this action either under Rule 8018(a)(4) or for failing to comply with 2 a local rule or court order. See In re Fitzsimmons, 920 F.2d 1468, 1471-72 (9th Cir. 1990); see 3 also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995), cert. denied, 516 U.S. 838 (1995) (“Failure 4 to follow a district court’s local rules is a proper ground for dismissal.”); see also Fed. R. Civ. P. 5 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant 6 may move to dismiss the action or any claim against it.”); see also Ferdik v. Bonzelet, 963 F.2d 7 1258, 1260 (9th Cir. 1992). Though the court has considered alternatives to dismissal by “placing 8 the case at the bottom of the calendar” and contemplating an additional notice to Appellants (In re 9 Fitzsimmons, 920 F.2d at 1472-75), the court is not convinced that additional time or notice will 10 resolve Appellants’ inaction at this point, especially given their inattention to a motion directly 11 United States District Court Northern District of California 1 seeking termination of their appeal. The court therefore finds that employing any alternatives to 12 dismiss would be futile. 13 Accordingly, Appellees’ Motion to Dismiss (Dkt. No. 14) is GRANTED. This appeal is 14 DISMISSED. Any other pending matters are TERMINATED and the Clerk shall close this file. 15 16 17 IT IS SO ORDERED. Dated: November 29, 2017 ______________________________________ EDWARD J. DAVILA United States District Judge 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:17-cv-01094-EJD ORDER GRANTING MOTION TO DISMISS 2

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