In re: Donald

Filing 7

ORDER DISMISSING CASE for failure to prosecute. See attached order. Signed by Judge Kari A. Dooley on 12/11/2018. (Bempong, Tracy)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

IN RE:
DONALD
Debtor.

No. 3:17-CV-01802 (KAD)

ORDER DISMISSING APPEAL
Introduction
On November 19, 2018, this Court issued an order directing the Appellant to show cause,
by December 3, 2018, why this case should not be dismissed for failure to prosecute. See Doc.
No. 6. No response was made. For the reasons stated below, this appeal is dismissed.
Standard of Review
Federal Rule of Bankruptcy Procedure 8009(a) provides that an appellant must file a
designation of the items to be included in the record on appeal and a statement of issues to be
presented within 14 days from the filing of the appeal. See Fed. R. Bankr. P. 8009(a). The
Second Circuit has made clear that “[f]iling a Designation and Statement is mandatory”, and that
a late filing will only be accepted if the appellant demonstrates that the “failure to act was the
result of excusable neglect” within the meaning of Rule 9006(b)(1) of the Federal Rules of
Bankruptcy Procedure. In re Lynch, 430 F.3d 600, 603 (2d Cir. 2005). Moreover, “a bankruptcy
appeal cannot proceed without a Designation and Statement. If a party fails to file a Designation
and Statement on time, and an untimely filing is disallowed because no excusable neglect has
been shown, the appeal has to be at an end.” Id. at 605.

“Although the time limitations of the Bankruptcy Rules ‘are not jurisdictional’ and ‘the
district court is not required automatically to dismiss the appeal of a party who has failed to meet
those deadlines’, the Second Circuit instructs that ‘the [district] court should exercise its
discretion to determine whether dismissal is appropriate in the circumstances, and its decision to
dismiss will be affirmed unless it has abused its discretion.’” Fetman v. Aish Hatorah of N.Y.
Inc., No. 1:17-CV-01247(ENV), 2018 WL 4288630, at *2 (E.D.N.Y. Sept. 7, 2018) (citing
Balaber-Strauss v. Reichard (In re Tampa Chain Co., Inc.), 835 F.2d 54, 55 (2d Cir. 1987)). In
deciding whether dismissal is appropriate, courts consider whether the appellant has
demonstrated “bad faith, negligence, or indifference.” In re Geaney, No. 08–CV–8208, 2011 WL
336464, at *1 (S.D.N.Y. Jan. 25, 2011) (citing In re Tampa Chain Co., 835 F.2d at 55)); see also
Oren v. Nicholas, 10–CV–2489, 2010 WL 5127664, at *1 (E.D.N.Y. Dec. 9, 2010).
Moreover, a district court has the inherent power to dismiss a bankruptcy appeal for
failure to prosecute sua sponte. See Chambers v. NASCO, Inc., 501 U.S. 32, 49, 111 S. Ct. 2123,
115 L.Ed. 2d 27 (1991) (recognizing a district court’s inherent authority to dismiss sua sponte
for failure to prosecute); see also Sydlar v. Swimelar, No. 6:10-cv-34 (GLS), 2010 WL 2522362
(N.D.N.Y. June 14, 2010) (dismissing a bankruptcy appeal sua sponte for failure to prosecute);
Bristol v. Ackerman (In re Bristol), No. 09-cv-1683 (JFB), 2010 WL 1223053 (E.D.N.Y. Mar.
24, 2010) (same).
Discussion
Here, at the very least, the Appellant has exhibited indifference in prosecuting this action.
The notice of appeal was docketed by the bankruptcy court on October 24, 2017. By operation of
Rule 8009, the Appellant's Designation and Statement were due by November 7, 2017. The
Appellant neither sought an extension of time to file the documents, nor otherwise made any

attempt to demonstrate excusable neglect. Of note, the Appellant’s only communication with this
Court was the filing of the notice of appeal, which in itself is grounds for dismissal. See Fed. R.
Bankr. P. 8003(a)(2) (“An appellant's failure to take any step other than the timely filing of a
notice of appeal…is ground only for the district court or BAP to act as it considers appropriate,
including dismissing the appeal.”). Furthermore, when given an opportunity to show cause why
the appeal should not be dismissed, and being warned that failure to do so could result in
dismissal, the Appellant failed to respond. The Court has considered whether some lesser
sanction is appropriate, but concludes that a lesser sanction is unwarranted. The Appellant not
only missed the requisite deadline, but failed to communicate with the Court for over 13 months.
See In re Bristol, No. 09-CV-1683 JFB, 2010 WL 1223053, at *2. The fact that appellant is pro
se does not alter this analysis. See e.g., Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995) (“[P]ro se
litigants generally are required to inform themselves regarding procedural rules and to comply
with them.”).
Accordingly, the appeal is hereby dismissed. See D. Conn. L. Civ. R. 41(a).
/S/ Kari A. Dooley
Kari A. Dooley
United States District Judge
Dated at Bridgeport, Connecticut this 11th day of December 2018.