Rood v. Southern Management Corporation Retirement Trust

Filing 27

MEMORANDUM AND ORDER GRANTING 21 motion to dismiss appeal and DISMISSING the appeal filed by Appellant Nik Hepler (c/m to Messrs. Hepler and Jewell 3/6/12 sat). Signed by Chief Judge Deborah K. Chasanow on 3/6/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IN RE: ROBERT F. ROOD, IV
:
________________________________
ROBERT FULTON ROOD, IV,
:
CHARLES TIMOTHY JEWELL, and
NIK HEPLER
:
Appellants

:

v.

:

Civil Action No. DKC 11-3059

:
GARY A. ROSEN, et al.
:
Appellees
:
MEMORANDUM OPINION AND ORDER
Appellants Robert Fulton Rood, IV, Charles Timothy Jewell,
and Nik Hepler noted separate appeals from a final judgment
entered

against

them

by

United

States

Bankruptcy

Judge

Paul

Mannes in an adversary proceeding filed by Appellees Southern
Management Corporation Retirement Trust and Gary A. Rosen, the
Chapter 7 trustee in Mr. Rood’s bankruptcy case.
subsequently

consolidated

and

a

briefing

The cases were

schedule

was

set.

Under that schedule, Appellants’ briefs were due by January 31,
2012; Appellees’ briefs were due by February 15; and Appellants
were provided ten days in which to file replies.

(ECF No. 14).

Mr. Jewell filed his brief on February 1, 2012.

(ECF No. 17).

Mr. Rood requested, and was granted, an extension of time in
which to file his brief, then filed a timely brief on March 2.

(ECF No. 26).

Mr. Hepler, however, did not request an extension

or file a brief.
On February 10, 2012, Appellees filed the pending motion to
dismiss Mr. Hepler’s appeal.

(ECF No. 21). Because Mr. Hepler

is

clerk

proceeding

February

15,

pro

se,

advising

the
him

of

his

transmitted
right

to

a

letter,

respond

to

on

this

potentially dispositive motion within seventeen days, warning
that his failure to do so in a timely manner could result in
dismissal of the case.

(ECF No. 23).

Over seventeen days have

passed since the date that letter was issued and Mr. Hepler has
failed to respond.
The relevant standard to be applied in this case was set
forth by the United States District Court for the District of
South Carolina in In re Ryan, 350 B.R. 632, 635 (D.S.C. 2006):
To determine whether to dismiss a bankruptcy
appeal for failure to timely file a brief,
the
district
court
must
exercise
its
discretion under Bankruptcy Rule 8001(a)
[“An appellant’s failure to take any step
other than timely filing a notice of appeal
does not affect the validity of the appeal,
but is ground only for such action as the
district court . . . deems appropriate,
which may include dismissal of the appeal”].
In re SPR Corp., 45 F.3d 70, 74 (4th Cir.
1995).
In applying Rule 8001(a), the
district court must take one of the four
steps outlined in In re Serra Builders,
Inc.,
970
F.2d
1309
(4th
Cir.
1992).
Specifically, the court must: “(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
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delay had any possible prejudicial effect on
the other parties; or (4) indicate that it
considered the impact of the sanction and
available alternatives,” keeping in mind
that dismissal is a “harsh sanction which
the district court must not impose lightly.”
Id. at 1311.
Proper application of the
Serra test requires the court to consider
and balance all relevant factors.
The
court’s exercise of its discretion without
considering
and
balancing
all
relevant
factors amounts to an abuse of discretion.
See James v. Jacobson, 6 F.3d 233, 239 (4th
Cir. 1993).
(internal footnote omitted).
Here,

Mr.

Hepler

was

provided

notice

of

the

filing

deadlines and his failure to file a brief or to request an
extension of time in which to do so can only be viewed as
negligence.

Moreover, he had an opportunity to explain his

failure in this regard by opposing Appellees’ motion to dismiss;
in fact, he was specifically advised of his right to do so by
the court clerk.

Nevertheless, he again failed to respond.

Under these circumstances, and considering the factors set forth
in In re Serra Builders, the court finds that dismissal of his
appeal is appropriate.
Accordingly, it is this 6th
United

States

District

Court

for

ORDERED that:

3

day of March, 2012, by the
the

District

of

Maryland,

1.
Southern

The

motion

Management

to

dismiss

Corporation

appeal

Retirement

filed
Trust

by

Appellees

and

Gary

A.

Rosen (ECF No. 21), BE, and the same hereby IS, GRANTED;
2.

The appeal filed by Appellant Nik Hepler BE, and the

same hereby IS, DISMISSED; and
3.

The

clerk

is

directed

to

transmit

copies

of

this

Memorandum Opinion and Order to counsel for Appellees and Mr.
Rood and directly to Mr. Hepler and Mr. Jewell.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

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