Laird v. Nichelson et al

Filing 9

ORDER denying 5 Motion to Dismiss; granting 7 Motion for Extension of Time to File; granting 8 Motion for Extension of Time to File. Appellant shall file his brief within ten (10) days from the date of entry of this Order. Signed by Honorable David C. Bramlette, III on 9/26/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOHN LAIRD
VS.

APPELLANT
CIVIL ACTION NO. 5:16-cv-56(DCB)(MTP)

VALERIE DENISE NICKELSON

APPELLEE

_________________________________________________________________
IN RE: VALERIE DENISE NICKELSON,
DEBTOR

CASE NO. 15-01271-NPO
CHAPTER 13

VALERIE DENISE NICKELSON

PLAINTIFF

VS.

ADV. PROC. NO. 15-00046-NPO

FRANKLIN CHECK SERVICE, LLC,
and JOHN LAIRD

DEFENDANTS
ORDER

This bankruptcy appeal is before the Court on Appellee Valerie
Denise Nickelson’s Motion to Dismiss Appeal (docket entry 5), and
on Appellant John Laird’s Motions for Extension of Time to File
Brief (docket entries 7 and 8).
Appellant filed his Notice of Appeal on June 21, 2016.

The

Bankruptcy Clerk for the United States Bankruptcy Court for the
Southern District of Mississippi transmitted the Record to the
Clerk of the United States District Court on August 2, 2016.

Rule

8018(a)(1) of the Federal Rules of Bankruptcy Procedure requires
the appellant to serve and file a brief within thirty (30) days
after the docketing of notice that the Record has been transmitted
or is available electronically.

Appellee moves for dismissal of

the appeal pursuant to Rule 8018(a)(4) of the Federal Rules of
Bankruptcy Procedure on grounds that the Appellant failed to file
a timely brief.
Appellant advises the Court that he is proceeding pro se, and
claims that he was advised by the Clerk’s office and Magistrate
Judge’s office “that no further action was required until further
notice by the court.” Appellant’s Opposition to Motion to Dismiss,
¶ III.

He admits that he has not timely filed a brief, and

attributes this in part to his self-representation.

Id., ¶ IV.

A pro se litigant is required to familiarize himself with the
rules

of

court,

including

the

Federal

Rules

of

Bankruptcy

Procedure, and to comply with the rules as must every litigant.
Nevertheless, the Fifth Circuit Court of Appeals has held that
“only the failure to file a notice of appeal, which deprives the
reviewing court of jurisdiction, mandates dismissal.

In contrast,

the district court does not invariably dismiss for breaches of
other procedural rules ....” In re CPDC Inc., 221 F.3d 693, 698-99
(5th Cir. 2000)(citing In re Tampa Chain Co., Inc., 835 F.2d 54, 55
(2nd Cir. 1987)).
In this case, Appellee has not shown prejudice from the delay,
and the Court finds no obstinately dilatory conduct on the part of
Appellant.

In his motions for extension of time, Appellant

requests only ten (10) days to file his brief.
The Court finds that the delay was not intentional and was not

2

for purposes of delay.

The Court further finds that Appellee’s

motion to dismiss appeal should be denied, and Appellant’s motions
for extension of time should be granted.
Accordingly,
IT IS HEREBY ORDERED that Appellee Valerie Denise Nickelson’s
Motion to Dismiss Appeal (docket entry 5) is DENIED;
FURTHER

ORDERED

that

Appellant

John

Laird’s

Motions

for

Extension of Time to File Brief (docket entries 7 and 8) are
GRANTED, and Appellant shall file his brief within ten (10) days
from the date of entry of this Order.
SO ORDERED, this the 26th day of September, 2016.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

3