Pelgrim v. Goldstein et al

Filing 15

MEMORANDUM OPINION AND ORDER: ORDERED that the Appeal shall be, and is hereby, DISMISSED; and further it is ORDERED that Madam Clerk shall CLOSE this case. Signed by Judge Julie Rebecca Rubin on 11/26/2024. (kb3s, Deputy Clerk) (c/m Appellant 11.26.24)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KRISTIN ANN TKACH PELGRIM,
Appellant,
Civil No. 1:24-cv-01958-JRR

v.
CHARLES GOLDSTEIN, et al.,

Bankruptcy Case No. 23-12670

Appellees.
MEMORANDUM OPINION AND ORDER
Appellant Kristin Ann Tkach Pelgrim is a debtor in a Chapter 7 bankruptcy proceeding in
the United States Bankruptcy Court for the District of Maryland (Bankr. Case No. 23-12670). On
July 8, 2024, Appellant filed an appeal from an order of the Bankruptcy Court. (ECF No. 1; the
“Appeal.”)
Federal Rule of Bankruptcy Procedure 8009(a)(1) provides that an appellant in a
bankruptcy case “must file with the bankruptcy clerk and serve on the appellee a designation of
the items to be included in the record on appeal and a statement of the issues to be presented.”
FED. R. BANKR. P. 8009(a)(1)(A). It further provides: “[t]he appellant must file and serve the
designation and statement within 14 days after: (i) the appellant’s notice of appeal as of right
becomes effective under Rule 8002; or (ii) an order granting leave to appeal is entered.” FED. R.
BANKR. P. 8009(a)(1)(B). The court may, upon motion of the appellee or upon its own initiative,
“dismiss the appeal for non-compliance with Bankruptcy Rule 8009 after giving the appellant an
opportunity to explain the non-compliance and upon considering whether the non-compliance had
prejudicial effect on the other parties.” Local Rule 404.2 (D. Md. 2023). Relatedly, Federal Rule
of Bankruptcy Procedure 8018 requires an appellant to “serve and file a brief within 30 days after
the docketing of notice that the record has been transmitted or is available electronically.” FED.

R. BANKR. P. 8018(a)(1). The Local Rules of this court similarly provide that the court may, “upon
motion . . . or upon its own initiative, dismiss the appeal after giving the appellant an opportunity
to explain the non-compliance and upon considering whether the noncompliance had prejudicial
effect on the other parties.” Local Rule 404.3 (D. Md. 2023).
The Notice of Appeal in this case was filed on July 8, 2024. (ECF No. 1.) Accordingly,
Appellant was required to file a designation of the record and statement by July 22, 2024.
Appellant did not file a designation and statement. On July 24, 2024, the court issued a show cause
order, notifying Appellant of the deficiencies (failure to designate the record and file a statement
of the issues). (ECF No. 5.) The court informed Appellant that she had 21 days to show cause
why the Appeal should not be dismissed. Id. Appellant then filed a designation, without a
statement of the issues, on August 5, 2024. (ECF No. 6.) The deadline for Appellant to file an
appeal brief was then September 4, 2024. FED. R. BANKR. P. 8018(a)(1). On October 3, 2024, the
court issued another show cause order, again notifying Appellant of the deficiency, and ordering
her to show cause within 21 days why her Appeal should not be dismissed. (ECF No. 12.) In
response thereto, Appellant filed a petition seeking an extension of time to file her brief, citing to
Bankruptcy Judge Alquist’s recusal in her Bankruptcy Case, and noting that she was “unsure of
what specific issues to appeal at this time.” (ECF No. 13.) Appellant’s petition failed to show
good cause, and for the reasons set forth in its order at ECF No. 14, the court denied Appellant’s
petition and ordered her to file her appeal brief on or before November 21, 2024. (ECF No. 14.)
The court again warned that failure to comply with the court’s order would result in dismissal
without further notice. Id. To date, Appellant has still failed to file her brief, despite her having,
in total, more than 90 days to do so.
In Cofield v. Williams, this court succinctly explained:

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A district court may, sua sponte, dismiss an appeal from an order of
a bankruptcy court based on the appellant’s non-compliance with a
procedural requirement of the Bankruptcy Rules, but only after
deliberate consideration of the factors identified in the case of In re
Serra Builders, 970 F.2d 1309 (4th Cir. 1992). There, the Fourth
Circuit said, id. at 1311:
[T]he district court must take at least one of the
following steps: (1) make a finding of bad faith or
negligence; (2) give the appellant notice and an
opportunity to explain the delay; (3) consider
whether the delay had any possible prejudicial effect
on the other parties; or (4) indicate that it considered
the impact of the sanction and available alternatives.
But, “taking just one of the four steps is not sufficient . . . .” Reid v.
Cohen, PWG-19-752, 2020 WL 886181, at *3 (D. Md. Feb. 4, 2020)
(citing In re Weiss, 111 F.3d 1159, 1173 (4th Cir. 1997)). Indeed,
“giving the appellant notice and an opportunity to explain the delay,
does not by itself suffice to dismiss an appeal.” In re Weiss, 111 F.3d
at 1173. Rather, the Fourth Circuit explained in In re SPR Corp., 45
F.3d 70, 74 (4th Cir. 1995):
[A] proper application of [this] test will normally
require a district court to consider and balance all
relevant factors, including the good faith of the
appellant (see step one) and possible prejudice to
other parties (see step three). Finally, throughout the
process, a district court should bear in mind that
although dismissal is an option, less drastic
alternatives must be considered.
The case of In re Serra Builders, 970 F.2d 1309, arose in the context
of a dismissal for appellant’s failure to file a timely appellate brief.
Nonetheless, judges of this Court have used a similar analysis to
determine whether an appellant’s failure to file a designation of the
record on appeal warrants dismissal of a bankruptcy appeal. See,
e.g., Reid, 2020 WL 886181, at **2-3 (D. Md. Feb. 24, 2020); Bird
v. Specialized Loan Servicing, LLC, RDB-16-3743, 2017 WL
1001257, at *5 (D. Md. Mar. 15, 2017); Slavinsky v. Educ. Credit
Mgmt. Corp., 362 B.R. 677, 678-79 (D. Md. 2007).
No. CV ELH-21-1070, 2022 WL 195492, at *6 (D. Md. Jan. 21, 2022). Here, all four factors
weigh in favor of dismissal.

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With respect to the first factor, the court may consider an appellant’s “overall
behavior . . . throughout the procedure,” including “failure to explain satisfactorily her non-filing
of a brief after the district court gave her an opportunity to do so.” In re Weiss, 111 F.3d 1159,
1173 (4th Cir. 1997). While the court appreciates the challenges that a pro se appellant may face,
Appellant’s repeated failures to comply with the procedural requirements of her Appeal, the Local
Rules of this court, and court orders evinces bad faith or negligence on Appellant’s part. See In re
Weiss, 111 F.3d 1159, 1173 (4th Cir. 1997) (“Bad faith [is] inferable from the overall behavior of
the [appellants] throughout the procedure.”); In re Grice, No. 13-50689, 2015 WL 11112155, at
*2 (E.D. Va. Nov. 12, 2015), aff’d, 654 F. App’x 589 (4th Cir. 2016) (“First, the court finds that
Appellant’s continued failure to act, despite the warnings and deadline extensions provided by the
court, evidences either bad faith or negligence.”); Reid v. Cohen, No. PWG-19-752, 2020 WL
886181, at *3 (D. Md. Feb. 24, 2020) (finding bad faith where the appellants “have not met
multiple procedural deadlines for this appeal, which leads me to believe that this appeal is also an
effort to delay the inevitable”). In addition, Appellant is well-versed in appealing orders from the
Bankruptcy Court; her litigation history in Bankruptcy Court makes clear that she is, or should be,
aware of the procedural requirements applicable to her proceeding. See Cofield, 2022 WL 195492,
at *7 (considering the appellant’s extensive litigation history in Bankruptcy Court to highlight that
appellant either was or should have been aware of the procedural requirements of bankruptcy
proceedings). While Appellant eventually designated the items to be included after the court’s
show cause order, she has persisted in failing to provide either a statement of the issues presented
as required by Bankruptcy Rule 8009(a)(1)(A) or an appeal brief as required by Bankruptcy Rule
8018(a)(1). Accordingly, this factor weighs in favor of dismissal.

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As to the second Serra Builders factor, the court issued a show cause order and gave
Appellant ample notice and opportunity to file her statement of the issues and her appeal brief. As
stated above, Appellant failed to address her rule noncompliance and still has not filed a statement
in accordance with Bankruptcy Rule 8009(a)(1)(A) or an appeal brief in accordance with
Bankruptcy Rule 8018(a)(1). Moreover, Appellant has not provided a compelling reason for the
delay. See Reid, 2020 WL 886181, at *3, supra. This factor weighs in favor of dismissal.
In regard to the third factor of possible prejudicial effect on other parties, this Appeal has
been pending for over four months with little to no progression. (Appellant’s failure to comply
with the rules here reprises Appellant’s myriad appeals that have been dismissed for failure to
comply with the Federal Rules of Bankruptcy Procedure. See, e.g., Case Nos. 1:24-cv-00244JRR; 1:23-cv-02741-JRR; 1:24-cv-00243-JRR; 1:24-cv-01655-JRR.) Only after the court issued
a show cause order did Appellant take any action whatsoever, and the action she took was still
deficient. Appellant’s “failure to prosecute [her] appeal burdens this Court’s docket and is
prejudicial to the prompt administration of justice.” Strickland-Lucas v. Herr, 600 F. Supp. 3d
585, 589 (D. Md. 2022). In addition, excessive delays impair Bankruptcy Trustees’ disposition of
estate assets. Andresen v. Rosen, No. PJM-05-3164, 2006 WL 4550187, at *3 (D. Md. Sept. 26,
2006); see Brandeen v. Liebmann, No. BR 15-24248-JS, 2017 WL 1398266, at *2 (D. Md. Apr.
19, 2017) (same). “The Bankruptcy Code sets deadlines for a reason.” Bell v. Dyck O’Neal, Inc.,
No. CV JKB-22-849, 2023 WL 2187643, at *6 (D. Md. Feb. 23, 2023). “While the Court aspires
to secure the ‘just, speedy, and inexpensive determination of every case,’ . . . ‘[t]he shorter time
period for bankruptcy appeals reflects the frequent need for greater expedition in the resolution of
bankruptcy appeals.” Id. (emphasis in original) (first quoting FED. R. BANKR. P. 1001; next

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quoting FED. R. BANKR. P. 8018 advisory comm.’s note to 2014 amendment). Therefore, this
factor weighs in favor of dismissal.
In view of Appellant’s delay and failure to comply with the court’s show cause orders, “a
less severe sanction, such as additional correspondence or further extension of the deadline for
filing a brief, would be insufficient.” Brandeen v. Liebmann, No. BR 15-24248-JS, 2017 WL
1398266, at *2 (D. Md. Apr. 19, 2017); see Cofield, 2022 WL 195492, at *7 (“[W]ith respect to
the impact of dismissal, I am persuaded that no available alternative remedy is appropriate in this
case, where Appellants consistently disregarded procedural rules without providing reasonable
excuse or explanation.”) (citations omitted); Kelly v. McNamee, Hosea, Jernigan, Kim, Greenan
& Lynch, P.A., No. GJH-21-1184, 2022 WL 861395, at *4 (D. Md. Mar. 23, 2022), aff’d sub nom.,
No. 22-1378, 2023 WL 5524036 (4th Cir. Aug. 28, 2023) (“[G]iven that Appellants have wholly
failed to designate the record (or file an appeal brief) as required under the Federal Rules of
Bankruptcy Procedure, this Court is persuaded that a less severe sanction would be futile here,
where Appellants consistently disregarded procedural rules without providing reasonable excuse
or explanation.”) (citations omitted)).
The court recognizes that dismissal is severe and has considered alternative avenues to
avoid such a severe result if reasonably practicable. Considering all the Serra Builders factors,
including, notably, the many chances Appellant was given to comply with applicable rules
described above, dismissal is proper. See Kelly, 2022 WL 861395, at *4 (“Although the Court is
mindful that a dismissal is a ‘harsh sanction which the district court must not impose lightly,’ In
re Serra Builders, Inc., 970 F.2d at 1311, it is, nonetheless, appropriate in this case where
Appellants’ ‘overall objective appears largely to defer rather than reach meaningful resolution on

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the merits.’”) (quoting Myers v. McNamee, Hosea, Jernigan, Kim, Greenan, & Lynch, P.A., No.
8:18-CV-03460-PX, 2020 WL 758151, at *3 (D. Md. Feb. 14, 2020)).
Accordingly, it is this 26th day of November 2024,
ORDERED that the Appeal shall be, and is hereby, DISMISSED; and further it is
ORDERED that Madam Clerk shall CLOSE this case.
Madam Clerk shall transmit a copy of this order and the accompanying memorandum
opinion to Appellant and counsel of record.

/s/_____________________
Julie R. Rubin
United States District Judge

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