In Re: New Century TRS Holdings Inc.

Filing 44

MEMORANDUM. Signed by Judge Sue L. Robinson on 12/22/2014. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

In re:
NEW CENTURY TRS HOLDINGS INC.,
a Delaware Corporation, et al.,

Chapter 11
Bankr. No. 07-10416 (KJC)
(Jointly Administered)

Debtors.

ANITA B. CARR,
Appellant,

v.

Civ. No. 14-282-SLR

JP MORGAN CHASE BANK, N.A.,
CHASE HOME FINANCE, LLC,
et al., and DOES 1-10,
Appellees.

MEMORANDUM
Appellant Anita B. Carr ("Appellant"), who proceeds pro se, appeals from a February 3,
2014 order of the United States Bankruptcy Court for the District of Delaware dismissing her
case for lack of subject matter jurisdiction. (D. I. 1) Presently before the court is Appellant's
motion for extension of time to file her opening brief (D.I. 30) and Appellee JP Morgan Chase
Bank's ("Chase Bank") motion to dismiss the appeal (D.I. 34). For the reasons that follow, the
court will deny Appellant's motion for extension of time, grant Appellee's motion, and dismiss
this appeal.
1. Standard of review. This court has jurisdiction to hear an appeal from the
bankruptcy court pursuant to 28U.S.C.§158(a). In undertaking a review of the issues on
appeal, the court applies a clearly erroneous standard to the bankruptcy court's findings of
fact and a plenary standard to that court's legal conclusions. See American Flint Glass

Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir. 1999). With mixed
questions of law and fact, the court must accept the bankruptcy court's "finding of historical

or narrative facts unless clearly erroneous, but exercise[s] 'plenary review of the [bankruptcy]
court's choice and interpretation of legal precepts and its application of those precepts to the
historical facts."' Mellon Bank, N.A. v. Metro Commc'ns, Inc., 945 F.2d 635, 642 (3d Cir. 1991)
(citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981)). The
district court's appellate responsibilities are further informed by the directive of the United States
Court of Appeals for the Third Circuit, which effectively reviews on a de nova basis bankruptcy
court opinions. See In re Hechinger, 298 F.3d 219, 224 (3d Cir. 2002); In re Telegroup, 281
F.3d 133, 136 (3d Cir. 2002).
2. Background. On May 21, 2013, Appellant filed a complaint commencing an
adversary proceeding against Chase Bank in the chapter 11 bankruptcy case of New Century
TRS Holdings Corp. (D.I. 1, Att. 2). Appellant sought damages from Chase Bank for various
violations of bankruptcy law and California law arising out of an attempted foreclosure of her
Dublin, California residence. Id. Chase Bank moved to dismiss the complaint for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1 ), which the bankruptcy court granted on
February 3, 2014. Id. Appellant appealed from the order dismissing her adversary proceeding
by filing a notice of appeal with this court on March 4, 2014. (D. I. 1).
3. On March 21, 2014, Chase Bank filed a motion to dismiss this appeal for Appellant's
failure to file her designation of record and statement of issues as required by Fed. R. Bankr. P.
8006. (D.I. 3) On March 25, 2014, Appellant responded by filing a motion for extension of time
to file her designation and statement of issues, citing unpredictable medical conditions as the
cause for her delay. (D.I. 8) ("First Extension Motion") The court denied Chase Bank's motion to
dismiss without prejudice, granted Appellant's motion, and extended her deadline to file those
opening documents to June 30, 2014. (0.1. 17) On June 13, 2014, the court entered an order
withdrawing the appeal from mediation and establishing the initial briefing scheduling. (D.I. 21)
That order set August 11, 2014 as the due date for Appellant's opening brief. Id. On June 30,
2014, Appellant filed her statement of issues and designation of record. (D.I. 22)
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4. On August 7, 2014, Appellant filed another motion for extension of time to file
opening appellant brief. (0.1. 24) ("Second Extension Motion") 1 In that motion, Appellant states
that she conducts her own legal research and writing and, due to a recent surgery, would be
unable to prosecute her appeal until October 13, 2014. (0.1. 24) She filed an accompanying
note from her doctor under seal stating that Appellant is restricted from typing from March 28,
2014 to April 16, 2014. (0.1. 28) The court granted Appellant's motion and extended the
deadline to November 10, 2014 for her to file her opening brief. (0.1. 29) ("September 17
Scheduling Order") The September 17 Scheduling Order expressly provided: "NOTE: FAILURE
OF THE APPELLANT TO TIMELY FILE APPELLANT BRIEF WILL LEAD TO DISMISSAL OF
THE APPEAL." Id.

5. On November 10, 2014, the extended due date for the opening brief, Appellant did
not file her brief, but instead filed another motion for extension of time. (D.I. 30) ("Third
Extension Motion") 2 She again claimed that the recovery from her surgery prevented her from
conducting her own legal research and writing. Id. Appellant filed another note from her doctor
that again stated she was restricted from keyboarding or typing from October 13, 2014 to
November 21, 2014. (0.1. 31) On November 18, 2014, Chase Bank filed a response opposing
the Third Extension Motion and a motion to dismiss Appellant's appeal for lack of prosecution.
(D.I. 33; D.I. 34) Appellant responded to Chase Bank's motion to dismiss on November 24,
2014. (0.1. 38)
6. Chase Bank's motion to dismiss. "Under Rule 8001 (a) of the Federal Rules of
Bankruptcy Procedure, the District Court is empowered to dismiss an appeal for failure to
prosecute or otherwise follow the procedures set out in the Bankruptcy Rules." In re Richardson
Indus. Contractors, Inc., 189 F. App'x 93, 96 (3d Cir. 2006) (unpublished). Federal Rule of

1

Appellant stylized this motion as her "First Motion for Extension of Time to File" on the
electronic docket.
2 Appellant stylized this motion as her "Second Motion for Extension of Time to File" on
the electronic docket.
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Bankruptcy Procedure Rule 8009(a) establishes that "[u]nless the district court or the
bankruptcy appellant panel by local rule or by order excuses the filing of briefs or specifies
different time limits: (1) The appellant shall serve and file a brief within 14 days after entry of the
appeal on the docket pursuant to Rule 8007." Chase Bank argues that Appellant's repeated
delays and failure to file an opening brief justifies dismissing this appeal for failure to prosecute.
(D.I. 35, at 11) Appellant's response primarily focuses on the merits of her underlying claim, but
also contends that her medical situation compels further extending her filing deadlines. (D.I. 38)
7. When considering motions to dismiss for failure to prosecute, the U.S. Court of
Appeals for the Third Circuit has instructed that a district court must weigh the following factors:
(1) the extent of the party's personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the
attorney was willful or in bad faith; (5) the effectiveness of sanctions other than
dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.
Pou/is v. State Farm Fire & Gas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Before dismissing, the

Court must consider less severe sanctions. See Jewelcor Inc. v. Asia Commercial Co., 11 F.3d
394, 397 (3d Cir. 1993). A district court must weigh all six Pou/is factors, though not all of them
must be satisfied to dismiss the case. United States v. $8,221,877.16 in U.S. Currency, 330
F.3d 141, 162 (3d Cir. 2003).
8. The extent of the party's personal responsibility. Appellant has filed this appeal
pro se and, therefore, is personally responsible for her actions. See Emerson v. Thiel Coll., 296
F.3d 184, 190 (3d Cir. 2002). The court finds that this factor weighs in favor of dismissal.

9. The prejudice to the adversary caused by the failure to meet scheduling orders.
The docket indicates that Chase Bank has filed numerous motions and briefs in this case, none
of which have addressed the merits of Appellant's appeal. (D.I. 3; D.I. 4; D.I. 13; D.I. 14; D.I. 27;
D.I. 33; D.I. 34; D.I. 35) Instead of devoting resources to defending the appeal on its merits,

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Chase Bank has had to expend resources responding to Appellant's delay. The court finds that
Appellant's failure to comply with scheduling order deadlines has prejudiced Chase Bank.
10. A history of dilatoriness. Appellant filed this appeal on March 4, 2014, and nine
months later, she has yet to file her opening brief. Appellant's repeated requests for extensions
evidences dilatoriness in this appeal. (See D.I. 8; D.I. 24; D.I. 30) Appellant has demonstrated
an ability to file motions for extension of time and timely responses to Chase Bank's motions to
dismiss-thus keeping the appeal active-yet repeatedly delaying filing the necessary
documents that would allow the appeal to progress on its merits. The court finds that this factor
weighs in favor of dismissal.
11. Whether the conduct of the party was willful or in bad faith. The facts support a
finding that Appellant's failure to prosecute her case was willful, though not necessarily in bad
faith. Throughout this appeal, Appellant has claimed that medical reasons have restricted her
ability to type, specifically from February 27, 2014 to April 15, 2014, and July 15, 2014 to
November 21, 2014, with surgery occurring in between those two time frames. (See D.I. 28; D.I.
31) Appellant has provided some documentation from her doctor supporting the need for
extensions, and the court has accommodated her requests thus far. (See D. I. 17; D. I. 29)
During those time frames, however, the record indicates that Appellant has filed numerous
typed papers via ECF filing, purportedly on her own behalf. (See D.I. 8; D.I. 9; D.I. 24; D.I. 30)
This undercuts Appellant's claimed necessity for medical extensions. Moreover, Appellant was
served with the court's September 17 Scheduling Order, which expressly warned: "FAILURE
OF APPELLANT TO TIMELY FILE APPELLANT BRIEF WILL LEAD TO DISMISSAL OF THE
APPEAL." (D.I. 29); (see also D.I. 17) (providing similar warning to Appellant) Instead of

complying with that order, Appellant filed the Third Extension Motion on the last day of the
newly-extended deadline rather than her opening brief. The court finds that Appellant has
demonstrated a clear, knowing disregard for the established deadlines in this case, leading this

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factor to weigh in favor of dismissal. See Emerson, 296 F.3d at 191; see Sisk v. Sussex Cnty.,
No. CIV.A. 11-121-RGA, 2013 WL 240606, at *7 (D. Del. Jan. 22, 2013).
12. The effectiveness of sanctions other than dismissal. Appellant represents
herself in this appeal pro se and the bankruptcy court has permitted her to proceed in forma
pauperis. (D.I. 1, Att. 3). It is unlikely that monetary sanctions would be effective. See Krieger v.
Russell, 286 F.R.D. 261, 263 (D. Del. 2012).

13. The meritoriousness of the claim or defense. In considering whether a claim or
defense appears to be meritorious, "[the court does not] use summary judgment standards. A
claim, or defense, will be deemed meritorious when the allegations of the pleadings, if
established at trial, would support recovery by plaintiff or would constitute a complete defense."
Pou/is, 747 F.2d at 869-70. The bankruptcy court found that it did not have subject matter

jurisdiction over Appellant's claim and dismissed the claim pursuant to Fed. R. Civ. P. 12(b)(1 ).
(D.I. 1, Att. 2). Appellant has not presented any facially plausible argument that suggests the
bankruptcy court erred in dismissing her adversary complaint for lack of subject matter
jurisdiction. The bankruptcy court's ruling weighs in favor of dismissal.
14. Conclusion. On balance, all Pou/is factors weigh in favor of dismissing Appellant's
appeal for failure to prosecute. Thus, the court will grant Chase Bank's motion to dismiss this
appeal and deny Appellant's motion for extension of time to file opening brief as moot. An
appropriate order shall issue.

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