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)

Download PDF
IN TilE UNITED STATES DISTRICT COURT FOR TilE DISTRICT OF MARYLAND Southern Division ) ').'.r * * ESTIIER LEWIS * Appellant, Case No.: G./l1-16-2440 * v. * U.S. TRUSTEE, * Appellee. * * * * * * * * MEMORANDUM * * * * * * 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 , .' 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 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?