Recinos et al v. Morequity Inc et al

Filing 21

ORDER Granting 10 Motion to Dismiss Appeal. Signed by Judge James C. Mahan on 06/28/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DAVID RECINOS; ELSA PERALTA,

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Plaintiffs,

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2:12-CV-826 JCM (GWF)
Bankruptcy Case No. 09-28799-MKN

v.
MOREQUITY, INC., et al.,

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Defendants.

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ORDER

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Presently before the court is appellee MorEquity, Inc.’s motion to dismiss appeal or,

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alternatively, motion for entry of order affirming the bankruptcy court’s order. (Doc. #10). Pro se

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appellants David Recinos and Elsa Peralta filed an opposition. (Doc. #15). Appellee then filed a

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reply. (Doc. #20).

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Appellants instituted adversary proceeding number 11-01287-MKN on October 11, 2011.

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(Doc. #9, Ex. 11). The bankruptcy court entered an order dismissing appellants’ amended complaint

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for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 12, 2012.

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(Doc. #9, Ex. 16). Appellants appealed the dismissal order on March 22, 2012 (doc. #9, ex. 17), and

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on March 28, 2012, appellee filed a statement of election requesting transfer of the appeal from the

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bankruptcy appellate panel (“BAP”) to this court (doc. #9, ex. 18). Appellants filed their opening

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brief with the BAP on May 14, 2012. The BAP transferred the appeal to this court on May 16, 2012.

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(Doc. #1).

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...

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James C. Mahan
U.S. District Judge

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Appellee now moves to dismiss the instant appeal, asserting that appellants failed to file

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excerpts of record with their opening brief. (Doc. #10). Appellee further notes that appellants’

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opening brief does not contain any citations to the record in support of the factual contentions in the

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appeal. Therefore, appellee argues that this court does not have an adequate record on appeal, and

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the appeal should be dismissed.

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In response, appellants acknowledge that they did not file excerpts of record with their

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opening brief. (Doc. #15). However, appellants state that they filed an appendix and excerpts of

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record simultaneously with their opposition to the motion to dismiss. (Docs. #14 and #15).

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Appellants filed an amended appendix and excerpts of records on June 20, 2012. (Doc. #17).

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“Pro se litigants are not excused from complying with [bankruptcy] rules.” In re Clinton,

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449 B.R. 79, 83 (9th Cir. BAP 2011) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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“[T]he failure to present a sufficient record can itself serve as a basis for summary affirmance . . .

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or for a dismissal of the appeal.” In re O’Brien, 312 F.3d 1135, 1137 (9th Cir. 2002) (internal

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citations omitted). The rules of practice and procedure “serve a critical function in that they

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maximize ever more scarce judicial resources.” Id.

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Federal Rule of Bankruptcy Procedure 8009(b) states that “the appellant shall serve and file

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with the appellant’s brief excerpts of the record as an appendix . . . .” Further, Local Rule 8009(a)

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states that the parties must file excerpts of record to the district court in the same manner as required

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by Federal Rule of Bankruptcy Procedure 8009(b). Finally, Local Rule 8070(a) states that the court

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“may dismiss the appeal, impose sanctions, or both . . . (a) [w]hen an appellant fails to timely . . . file

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the excerpts of record . . . .”

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Appellants’ untimely efforts to present the court with sufficient excerpts of record do not cure

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the deficiencies in their opening brief. Pursuant to Federal Rule of Bankruptcy Procedure 8009(b)

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and Local Rule 8009(a), appellants were required to file excerpts of record with their brief. Instead,

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appellants filed their excerpts of record more than two months after they filed their opening brief.

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Appellants’ amended appendix and excerpts of record are more than 550 pages long, and the opening

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brief does not cite to any material within these records. (Docs. #4 and #17). Accordingly, the

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James C. Mahan
U.S. District Judge

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current record is insufficient to present an adequate basis for review by this court.

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Further, while neither of the parties discussed this issue, the court notes that the clerk of the

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bankruptcy court has not issued a certificate of record on appeal in this case. On May 16, 2012, the

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court issued a minute order, stating that if the designation of reporters and recorders transcripts “was

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previously filed with the clerk of the BAP, counsel shall file a copy of the same with the clerk of the

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bankruptcy court” so the certificate of record on appeal may be transmitted timely to the district

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court. (Doc. #2). On May 29, 2012, the clerk of the bankruptcy court issued a status report

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regarding the record on appeal, noting that the certificate of record on appeal has not been forwarded

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because there was no reporter’s transcript filed. (Doc. #6). To date, there is no certificate of record

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on appeal on the docket in this case.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that appellee MorEquity, Inc.’s

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motion to dismiss appeal (doc. #10) be, and the same hereby is, GRANTED.

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IT IS FURTHER ORDERED that the appeal in the instant matter, Recinos, et. al. v.

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MorEquity Inc., et. al., case number 2:12-cv-826-JCM-GWF, be, and the same hereby is,

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DISMISSED.

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DATED June 28, 2012.

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UNITED STATES DISTRICT JUDGE
NITED STATES
D
JUD
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James C. Mahan
U.S. District Judge

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