Stranger v. Ross
Filing
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ORDER granting 4 the Appellee, Elizabeth B. Ross's Motion to Dismiss Appeal for Failure to Timely File Initial Brief. Appellant Gregory Andrew Stranger's Appeal of the Bankruptcy Court's Final Judgment is hereby DISMISSED. The Clerk shall enter judgment accordingly, transmit a copy of this Order and the Judgment to the Clerk of the Bankruptcy Court, terminate the appeal, and close the file. Signed by Judge Sheri Polster Chappell on 11/20/2015. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE:
STRANGER
GREGORY
ANDREW
GREGORY ANDREW STRANGER,
Appellant,
v.
Case No: 2:15-cv-275-FtM-38
ELIZABETH ROSS,
Appellee.
/
ORDER1
This matter comes before the Court on the Appellee, Elizabeth B. Ross's Motion
to Dismiss Appeal for Failure to Timely File Initial Brief (Doc. #4) filed on August 10, 2015.
No response has been file by the Appellant, Gregory Andrew Stranger, and the time to
do so has expired.
BACKGROUND
Ross and the Appellant began a business relationship in California in 2006. In
2008, Ross filed suit against the Appellant in the Superior Court of the State of California
in and for Marin County, alleging the Appellant had committed fraud by intentional
misrepresentations. In August of 2010, the jury awarded Ross $969,849.73 in actual
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Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility
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user to some other site does not affect the opinion of the Court.
damages and $1,500,000.00 in punitive damages.
The California State Court then
awarded Ross $2,483,281.82. Appellant appealed the judgment in California Court of
Appeals, First Appellate District, Division Two. Appellant subsequently lost his appeal and
the judgment award of $2,483,281.82 was upheld by the California Appellate Court.
On April 28, 2011, the Appellant filed for Chapter 7 bankruptcy in the United States
Bankruptcy Court for the Middle District of Florida. On September 23, 2011, Ross filed
an adversary proceeding complaint in the United States Bankruptcy Court for the Middle
District of Florida Ross v. Stranger, 11-ap-1115 FMD.
Ross filed a two (2) Count
Complaint pursuant to Fed R. Bankr. P. 7001(4), (6) and (9) seeking a determination that
the debt owed by Appellant to Ross was non-dischargeable. Count I asserts a claim
pursuant to 11 U.S.C. § 523(a)(2)(A) (false pretenses, false representations or actual
fraud) and Count II asserts a claim pursuant to 11 U.S.C. § 523(a)(6) (willful and malicious
injury).
During the course of the adversary proceeding Ross filed a Motion for Summary
Judgment which was subsequently granted by the Bankruptcy Court as to Count I on
October 31, 2014. Ross, 11-ap-1115 (Doc. #125) (Amended Order).
Count II was
voluntarily dismissed by Ross. On February 2, 2015, the Bankruptcy Court issued the
Final Judgment in the underlying adversarial proceeding holding that the judgment debt
from the California Court case owed by Appellant to Ross was non-dischargeable .
The Appellant moved to appeal the Bankruptcy Court’s Final Judgment. Appellant
filed his Notice of Appeal of the Bankruptcy Court’s Final Judgment in the adversary
proceeding with the bankruptcy clerk on April 7, 2015. On June 30, 2015, the Bankruptcy
Court served the Transmittal Record to this Court. Ross received the Transmittal via
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CM/ECF.
Ross’ Counsel promptly emailed same to Appellant so that he would
immediately receive notice that the record had been transmitted. The Clerk of the Court
also mailed copies of the Notice of docketing the bankruptcy appeal on June 30, 2015, at
the Appellant’s address provided by Appellant to this Court. In addition, Ross also sent
a copy to Appellant via certified and regular U.S. mail at the address listed on the
Transmittal, which is a post office box that Appellant has continually requested his mail
be sent to. The Notice of Electronic Filing (“NEF”) that Ross received from this Court also
indicated that the Court e-mailed the document directly to Appellant at the same e-mail
address that Ross’ Counsel utilized. To date, Appellant has not filed his brief with the
Court nor requested an extension of time. Because Appellant has not filed his brief, Ross
moves to dismiss the appeal for failure to file a brief in compliance with Fed. R. Bankruptcy
8018(a)(1)and (4).
DISCUSSION
Ross moves the Court to dismiss the Appellant’s Appeal of the Bankruptcy Court’s
Final Judgment because the Appellant has failed to file his appeal brief in a timely manner.
Fed R. Bankr. P. 8018(a) states that the appellant must serve and file the initial
brief “within 30 days after the docketing of the notice that the record has been
transmitted.” If an appellant fails to file a brief on time or within an extended time
authorized by the district court or Bankruptcy Rules, an appellee may move to dismiss
the appeal-or the district court or Bankruptcy Appellate Panel (BAP), after notice, may
dismiss the appeal on its own motion. Reverse Mortgage Sols., Inc. v. Inmon, No. 8:15CV-809-T-36, 2015 WL 6124049, at *2-3 (M.D. Fla. Oct. 16, 2015). An appellee who fails
to file a brief will not be heard at oral argument unless the district court or BAP grants
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permission. Fed. R. Bankr. P. 8018(a)(4). Failure to timely file briefs is “a non-jurisdictional
defect in the prosecution of [an] appeal, and such defect does not require dismissal in
every case.” In re Daughtrey, No. 2:15-CV-29-FTM-29, 2015 WL 1268324, at *2 (M.D.
Fla. Mar. 19, 2015) (In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir.1985) (citations
omitted) (alteration in original).
Nevertheless, the Eleventh Circuit has held that a
debtor’s failure to timely file an initial brief or otherwise prosecute his bankruptcy appeal
is grounds for dismissal. Lawrence v. Educational Credit Management, Corp., 522 Fed.
Appx. 836, 840 (11th Cir. 2013).
In Lawrence, the Appellant (debtor) failed to file his initial brief within the time limits
imposed by Fed. R. Bankr. P. 8009(a)(1). The Eleventh Circuit held that the district court
did not abuse its discretion in dismissing Lawrence's bankruptcy appeal without first
finding him in contempt. Instead, the Eleventh Circuit found that, the district court did not
need to make a finding of willful contempt; rather, a finding of “bad faith, negligence or
indifference” was sufficient. Lawrence, 522 Fed. Appx. at 839-40 (citing Brake, 778 F.2d
at 667).
The Eleventh Circuit found that standard was met in light of Lawrence's nearly
“complete failure to take any steps” to prosecute his bankruptcy appeal before the district
court. Lawrence, 522 Fed. Appx. at 839-40. The Eleventh Circuit noted that Lawrence
never inquired about the status of his appeal or file any documents to perfect the appeal.
Instead, the record demonstrated that Lawrence did not (1) inquire as to the status of his
appeal in the more than five months between the time that he served the Notice on ECMC
and the date of the district court's order of dismissal; (2) request an extension of time to
file his initial brief; or (3) take any other action to prosecute his appeal. Id.
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Likewise, the Appellant in this case has failed to file a brief, request an extension
of time pursuant to Fed. R. Bankr. P. 9006, or inquire in any way to this Court about his
appeal. The Bankruptcy Record was filed with this Court on June 30, 2015, as well as
the Notice of Docketing the Bankruptcy Record. (Doc. #1 and 2). As such, Appellant’s
brief was due on July 30, 2015. Fed R. Bankr. P. 8018(a)(1). A total of 144 days have
passed since the date of the Bankruptcy Record and Notice being filed without any filings
from the Appellant.
Further a review of the Bankruptcy Court’s Docket Sheet
demonstrates Appellant repeatedly failed to file motions and replies in a timely manner in
the adversarial proceeding below. In fact, at one point in the proceeding, the Bankruptcy
Court entered a clerk’s default, which was later removed, for Appellant’s failure to
respond.
The particular circumstances in this case demonstrate sufficient indifference and
consistent dilatory conduct on the part of the Appellant, that dismissal for failure to file a
brief is due to be granted. Thus, in light of the Appellant’s failure to prosecute his own
appeal and file an initial appellant brief, the Court finds good cause to grant Ross’ Motion
to Dismiss, the appeal.
Accordingly, it is now
ORDERED:
The Appellee, Elizabeth B. Ross's Motion to Dismiss Appeal for Failure to Timely
File Initial Brief (Doc. #4) is GRANTED.
1. Appellant Gregory Andrew Stranger’s Appeal of the Bankruptcy Court’s
Final Judgment is hereby DISMISSED.
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2. The Clerk shall enter judgment accordingly, transmit a copy of this Order
and the Judgment to the Clerk of the Bankruptcy Court, terminate the
appeal, and close the file.
DONE and ORDERED in Fort Myers, Florida this 20th day of November, 2015.
Copies: All Parties of Record
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