Lewis v. U.S. Trustee

Filing 16

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/27/2017. (c/m 2/27/2017 aos, Deputy Clerk)

IN TilE UNITED STATES DISTRICT COURT
FOR TilE DISTRICT OF MARYLAND
Southern Division
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ESTIIER LEWIS

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Appellant,

Case No.: G./l1-16-2440

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v.

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U.S. TRUSTEE,

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Appellee.

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MEMORANDUM

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OPINION

Appellant Esther Lewis. proceeding pro se. has tiled an appeal of the U.S. Bankruptcy
Court's June 9. 2016 order dismissing her case. terminating the automatic stay imposed pursuant
to 11 U.S.c. ~ 362(a) and imposing a two-year equitable servitude as to I.ewis' interests in real
property. See ECF NO.1: ECF NO.1-I. For the reasons that follow. Appellant's Appeal is
dismissed.
I.

DISCUSSION
Bankruptcy Rule 8018 requires Appellant to "serve and lile a brief within 30 days after
the docketing ofnotiee that the reeord has been transmitted or is available eleetronieally," See
Fed. R. Bankr. P. 80 18(a)( 1). The Designation of Record was docketed on August 9. 2016. ECF
Nos. 3-6. and on August 10.2016. Appellant was sent a letter notifying her that she had 30 days
to tile her brief. ECF NO.7. On Oetober 4. 2016. this Court granted Appellant a 30-day extension
to file a brief. ECF No. 10. On November 23. 2016. this Court granted Appellant an additional

30 days to tile a brief. ECF No. 12. For a third time. on January 26. 2017. the Court again
granted Appellant an additional 14 days to tile a brief. ECF No. 14.
On February 10.2017. alier failing to receive Appellant's brief fiJr approximately live
months. the Court ordered Appellant to show cause why her appeal should not be dismissed f()r
failure to comply with Fed. R. 13ankr. 1'. 801 8(a)( I). ECF No. 15. Appellant was warned that
failure to respond to the order within seven days would lead to dismissal of the appeal.1 To date.
the Court has not received any response to the show cause order.
Local Rule 404.3 permits the Court to dismiss an appeal f()r non-compliance with
13ankruptey Rule 8018 "alier giving the appellant an opportunity to explain the non-compliance
and upon considering whether the non-compliance had prejudicial effect on the other parties'"
Sec Loc. R. 404.3 (D. Md. 2016). Also. Fed. R. Bankr. 1'. 8003(2) (formerly cited as Rule
800 I(a») provides that "[a]n appellant's failure to take any step other than the timely tiling of a
notice of appeal docs not aff'cct the validity of the appeal. but is ground only for the district
court. .. to act as it considers appropriate. including dismissing the appeal." In determining
whether to dismiss a bankruptcy appeal for a 8003(2) violation. a district 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 delay had any possible prejudicial eff'cel on the other parties:
[and] (4) indicate that it considered the impact of the sanction and available alternatives."
/farris. 129 F.3d 1259. *2 (4th Cir. 1997) (unpublished) (citing
F.2d 1309. 1311 (4th Cir. 1992): sec a/so

//1

//1

//1

re

re Sara Builda.\'. //1c .. 970

re Weiss. 111 FJd 1159. 1173 (4th Cir. 1997)

(noting all factors should be considered and the second factor alone is insufficient to dismiss an
appeal).
I

Because Appellant is pro-sc. this order. and all other orders in this casco

2

W<lS

mailed to her address of record.

Appellant's
of Bankruptcy

failure to serve and tile a brief within the time required by the Federal Rules

Procedure

is negligent.

2016. ECF Nos. 3-6. and PlaintilTwas
The Court subsequently
comply.

The Designation

of Record was docketed on August 9.

notified that she had 30 days to lile her brief. ECF NO.7.

granted Plaintiff three extensions.

ECF Nos. 10. 12. 14. In addition.

had expired and an opportunity

providing

the Court provided Appellant

"burdens

failure to comply with Bankruptcy

the Court's docket. unnecessarily

is prejudicial

to the prompt administration

R WT 14-CY -0626.2015
procedural
Appellant

II [easel was dismissed

her creditors

Although

McDal1iel \'. Fed. Nal. MONg AS.\'I1. No.
failure to follow

notice of the fact that

statement."

(Bankr. D. Md. 2016). B. Dkt. at 382 Appellant's

by depriving

them of the opportunity

in real property.

the Court recognizes

to take advantage

stay and impose a two-year

delay

of the

equitable

servitude

ECr No. I.
that dismissal

error is a harsh remedy that should not be imposed
1311. anything

in this case. and

lor failure to lile a plan and disclosure

Cou11'S decision to lili the automatic

as to Lewis' interests

of the controversies

Order.

cases since 2008 and the instant case was filed "only months

See 111 Lewis. No. 15.1 7249.DWK
re

Bankruptcy

of justice:'

Rule 8018 and the Court's

appeal). The Court also takes judicial

has filed live bankruptcy

also prejudices

delays resolution

ECr

Irom Appellant.

WI. 1522942. at *3 (D. Md. Mar. 31. 20 IS )(discussing

rules in a bankruptcy

alier a prior Chapter

with notice that her time

to explain her failurc to comply with the liling deadlines.

No. 15. Since then. over two weeks have passed without any response
Further. Appellant's

her with ample time to

of a bankruptcy

appeal for a procedural

lightly. see In re Serra Builders.

less would be littile given that Appellant

970 F.2d at

has failed to pursue this appeal in a

timely manner. See Tekmel1 \'. JOhl1 E. Harms . .II'. & Assocs .. I11C 2011 WI. 5061874 at *5 (D.
..
2

To avoid confusion. documents

found

011

the Bankruptcy Docket '.•.. be identified as "B, Dkt ....
ill

,

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Md. Oct. 25, 2011 )(" ... this Court finds that dismissal is nonetheless appropriate where
Appellants consistently disregarded procedural rules without providing reasonable excuse or
explanation for their neglect.").

II.

CONCLUSION
Accordingly, Appellant's Appeal, ECF No. I, is hereby dismissed. A separate Order
follows.

Dated: FebruaryZ?

&~-

2017

GEORGE J. HAZEL
United States District Judge

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