Rutledge

Filing 7

ORDER DISMISSING CASE for failure to prosecute. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TRAVIS RUTLEDGE,
Appellant,

CASE NO. 17-CV-13743
HON. GEORGE CARAM STEEH

v.
RUBICON REALTY GROUP,
LLC,
Appellee.
/

ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE
On November 17, 2017, pro se Appellant Travis Rutledge timely filed
an appeal of a final decision of the United States Bankruptcy Court for the
Eastern District of Michigan. Appellant did not pay the filing fee or file a
petition to proceed in forma pauperis. Nevertheless, this court considered
his August, 2017 application to proceed without prepaying the filing fee
which he had filed in the Bankruptcy Court, and which the Bankruptcy
Judge had granted, and this Court likewise granted him leave to proceed
on appeal without paying the $298 filing fee. Despite this permission,
Appellant failed to prosecute his appeal in any manner. Although Appellant
was required to file the designation of record on or before Friday,
December 1, 2017, pursuant to Federal Rule of Bankruptcy Procedure
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8009, Appellant failed to do so. Moreover, Appellant never sought a time
extension for compliance.
Accordingly, on January 11, 2018, this court ordered Appellant to
show cause on or before January 26, 2018, why his appeal should not be
dismissed for failure to prosecute. On January 24, 2018, Appellant filed a
response attaching only the names and addresses of two creditors and
stating:
The Debtor, Travis Rutledge was to file the Designation of
Certain allowed claims in the above matter in a timely
manner. Debtor, at times will send other individuals to file
documents with the court clerk when he is unable to for
various reason[s].
Debtor later realized that the
document was not filed when Debtor recently received a
Show Cause Order from the Honorable Steeh that the
document was not filed. Debtor has now cured the defect
and files this Designation of certain Allowed Claims and
Statement to be included in the record of appeal.
(Doc. 6). Appellant offered no explanation for why he is two months late to
file a designation of record. Moreover, in his response to the court’s show
cause order, Appellant still has not complied with Federal Rule of
Bankruptcy Procedure 8009 which requires that within 14 days of the filing
of the notice of appeal, “the appellant 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.

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Bankr. P. 8009. In addition, Rule 8009 specifically provides the documents
the record must include:
(4) Record on appeal
The record on appeal must include the following:
• docket entries kept by the bankruptcy clerk;
• items designated by the parties;
• the notice of appeal;
• the judgment, order, or decree being appealed;
• any order granting leave to appeal;
• any certification required for a direct appeal to the court
of appeals;
• any opinion, findings of fact, and conclusions of law
relating to the issues on appeal, including transcripts of all
oral rulings;
• any transcript ordered under subdivision (b);
• any statement required by subdivision (c); and
• any additional items from the record that the court where
the appeal is pending orders.
Fed. R. Bankr. P. 8009(a)(4). Here, Appellant has failed to comply with any
of the requirements of Rule 8009.
This court has discretion to dismiss an appeal for failure to prosecute.
Fed. R. Bankr. P. 8003(a)(2). The Sixth Circuit has recognized that
dismissal of a bankruptcy appeal is warranted when an appellant “has
shown a complete indifference to the rules of the bankruptcy appeals
proceeding.” Barclay v. U.S. Tr., Hackett, 106 F. App’x 293, 294 (6th Cir.
2004). Moreover, the Sixth Circuit has stated that “a district court may in
particular exercise its discretion to dismiss an appeal for a violation of Rule
[8009] (formerly codified as Rule 8006) where there is a showing of bad
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faith, negligence, or indifference.” In re Kloian, 137 F. App’x 780, 783 (6th
Cir. 2005) (citing In re Winner Corp., 632 F.2d 658, 661 (6th Cir. 1980)).
Here, Appellant had acted with complete indifference to the
bankruptcy appellate rules. He is eight weeks late in filing his designation
of record and his response to this Court’s show cause order indicates that
he is both unaware of his obligations under the Federal Rules of
Bankruptcy Procedure, and has no intention of complying with them. This
is the very type of negligence which courts have recognized justifies
dismissal. See In re Kloian, 137 F. App’x at 783 (affirming district court’s
dismissal of bankruptcy appeal for non-prosecution where appellant filed
his statement of issues more than a month after notice of appeal and
Bankruptcy Court proceedings chronicled his persistent neglect); Barclay,
106 F. App'x at 294 (affirming district court’s dismissal of bankruptcy appeal
where pro se appellant failed to file her opening brief despite numerous
time extensions, and failed to cure deficient record despite the opportunity
to do so); In re Sharwell, 129 F.3d 1265, 1997 WL 681509, *1 (6th Cir.
1997) (dismissing appeal where pro se appellant failed to file a designation
of record and statement of issues and filed brief six months late) (table
only); In re Bock Laundry Mach. Co., 63 B.R. 221 (N.D. Ohio 1986)

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(dismissing appeal where pro se appellant failed to take any action after
filing notice of appeal).
Although this court holds pro se litigants to a less stringent standard
than an attorney, Haines v. Kerner, 404 U.S. 519, 520 (1972); Hahn v. Star
Bank, 190 F.3d 708, 715 (6th Cir. 1999), this does not excuse pro se
Appellant from complying with the bankruptcy appellate procedures.
In a similar bankruptcy appeal, the Sixth Circuit found that despite an
appellant’s pro se status “he was still required to comply with the rules; his
pro se status does not exempt him from compliance.” In re Sharwell, 129
F.3d 1265 (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991)).
Accordingly, because Appellant has failed to take any action in this
case since filing his Notice of Appeal over two months ago, has failed to
offer any excuse for his neglect, and has failed to comply with the
requirements of Federal Rule of Bankruptcy Procedure 8009, this appeal is
DISMISSED for failure to prosecute.
IT IS SO ORDERED.
Dated: January 31, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of
record on January 31, 2018, by electronic and/or
ordinary mail and also on Travis Rutledge,
20251 Ashton, Detroit, MI 48219.
s/Barbara Radke
Deputy Clerk

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