Theresa Marie Gerstle Family Limited Partnership

Filing 8

MEMORANDUM OPINION AND ORDER denying 4 Motion to Dismiss. Signed by Judge Jennifer B. Coffman on 9/9/11. cc:counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 11-308-C
IN RE:
THERESA MARIE GERSTLE FAMILY
LIMITED PARTNERSHIP
Debtor
THERESA MARIE GERSTLE FAMILY
LIMITED PARTNERSHIP
V.

APPELLANT,

MEMORANDUM OPINION AND ORDER

INNWOOD CONDOMINIUM
PROPERTY ASSOCIATIONS, INC.,

APPELLEE.

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This matter is before the court on Innwood Condominium Property
Associations’ motion to dismiss (R. 4). The court will deny the motion because the
Theresa Marie Gerstle Family Limited Partnership has not exhibited negligence,
indifference, or bad faith with regard to this appeal.
Innwood asserts that this court should dismiss the Partnership’s appeal
because the Partnership has repeatedly missed filing deadlines and otherwise
exhibited noncompliance in the underlying bankruptcy action and because the
Partnership was a day late in filing its designation of record and statement of issues
on appeal; however, none of this justifies dismissing the Partnership’s appeal.
First, the court cannot give weight to alleged noncompliance by the Partnership in

the underlying bankruptcy action. This court is not in a position to measure the
effects of that alleged noncompliance. Any cumulative impact of the asserted
noncompliance, which occurred prior to this appeal, cannot be interpreted as
negligence, indifference, or bad faith with regard to this appeal. See In re Smith,
119 B.R. 558, 560 (S.D. Ohio 1990) (citing In re Winner Corp., 632 F.2d 658,
661 (6th Cir. 1980)). This court will not invade the province of the bankruptcy
court by sanctioning the Partnership for conduct that is not at issue in this appeal.
Second, while a district court is empowered to dismiss a bankruptcy appeal
for failure to comply with appellate process deadlines, see FED. R. BANKR. P.
8001(a), Innwood has failed to establish that the Partnership acted in bad faith
with regard to the appeal or that the failure to timely file the designation of record
was due to the Partnership’s negligence or indifference. See In re Smith at 560.
The Partnership’s attorney has provided evidence that the one-day delay was due
to computer problems in his office. When those problems arose, he moved for
extension of time and served the required documents the next day, one day late.
These actions do not constitute negligence or indifference. Furthermore, Innwood
has not asserted that it was prejudiced in any way by the delay. See id. This
minimal delay cannot justify dismissing this case and denying the Partnership the
opportunity to argue its appeal on the merits. See id. Accordingly,
IT IS ORDERED that the motion to dismiss (R. 4) is denied.

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Signed on September 9, 2011

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