Taal v. St. Mary's Bank et al

Filing 37

ORDER denying as moot 19 Motion for Leave to File Brief; granting in part and denying in part 21 Motion to Strike and Dismiss; denying as moot 28 Motion to Extend Time to Object/Respond; denying as moot 31 Motion to Extend Time to Object/Respond; denying as moot 34 Motion for Leave to File Reply Brief. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Baboucar B. Taal
v.

Case No. 13-cv-194-PB
Opinion No. 2013 DNH 105

St. Mary's Bank, Discover Bank,
and Niederman, Stanzel & Lindsey
MEMORANDUM AND ORDER
Baboucar Taal appeals from a Bankruptcy Court ruling
dismissing his Chapter 13 petition.
than a month late.

Taal filed his brief more

The brief is largely unintelligible and

fails to comply with Federal Rule of Bankruptcy Procedure
8010(a)(1).

Appellee St. Mary’s Bank (“SMB”) has moved to

strike Taal’s brief and dismiss his appeal.

I determine that:

(1) Taal’s untimely filing was the result of excusable neglect;
(2) his brief must nevertheless be stricken because it is
unintelligible and fails to comply with Bankruptcy Court Rules;
and (3) Taal will be given 14 days to file a brief that clearly
sets forth his appellate arguments and complies with Rule
8010(a)(1).

Accordingly, I grant in part and deny in part SMB’s

motion to strike and dismiss.

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(Doc. No. 21.)1

Taal asserts that SMB’s motion is a nonconforming document that

I.

PROCEDURAL BACKGROUND

Taal filed a notice of appeal from a bankruptcy court
decision on April 23, 2013.

Doc. No. 1.

On May 2, 2013, he

filed a “Motion to Amend / Alter ‘Motion to Stay Pending Appeal’
Order,” Doc. No. 9, which I denied on May 21, 2013.
Endorsed Order dated May 21, 2013.

On May 20, 2013, Taal filed

a Motion to Compel Production of Discovery.
denied that motion on June 24, 2013.
June 24, 2013.

See

Doc. No. 12.

I

See Endorsed Order dated

Taal finally submitted his appeals brief, Doc.

No. 18, on June 28.
On July 3, SMB filed a motion to strike Taal’s brief and
dismiss the case for failure to comply with the briefing
schedule in Rule 8009 or the briefing requirements set out in
Rule 8010.

See Fed. R. Bankr. P. 8009, 8010; Doc. No. 21.

NSL

and Discover Bank joined SMB’s motion to strike and dismiss.

violates Local Rule 7.1(a)(1) because it seeks two forms of
relief. Taal is incorrect. Although that Rule states that
“[f]ilers shall not combine multiple motions seeking separate
and distinct relief into a single filing,” when one form of
relief ordinarily follows from another form of relief, it does
not violate the Rule to seek both forms of relief in a single
motion. Here, where SMB requests an order striking appellant’s
brief, and dismissal of the case would ordinarily follow that
relief, the document is not considered a nonconforming document.
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Doc. Nos. 23, 30.

Taal neither filed a response, nor offered

any explanation for his failure to timely file a brief.

II.

STANDARD OF REVIEW

This court has jurisdiction to hear appeals from final
judgments, orders, and decrees issued in bankruptcy court
pursuant to 28 U.S.C. § 158(a)(1).

Generally, when reviewing a

decision by a bankruptcy court, the district court upholds
findings of fact unless they are clearly erroneous, and reviews
legal conclusions de novo.

Fed. R. Bankr. P. 8013; Palmacci v.

Umpierrez, 121 F.3d 781, 785 (1st Cir. 1997); Askenaizer v.
Moate, 406 B.R. 444, 447 (D.N.H. 2009).

In this case, however,

the appellees responded to Taal’s appeal by raising the
threshold argument that the appeal should be dismissed for
failure to comply with the briefing schedule and briefing
requirements in the Bankruptcy Rules.

Because I strike Taal’s

brief for failure to comply with Rule 8010(a), I do not address
the merits of his appeal.

See Hermosilla v. Hermosilla, 447

B.R. 661, 664 (D. Mass. 2011).

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III.

ANALYSIS

The briefing schedule for a bankruptcy appeal to a federal
district court is established by law.
8009.

See Fed. R. Bankr. P.

According to Rule 8009, an appellant has fourteen days

after filing a notice of appeal within which to file a
supporting brief.

Id. at 8009(a)(1).

on the docket on April 24, 2013.

Taal’s appeal was entered

See Doc. No. 1.

brief should have been filed by May 8, 2013.
P. 8009(a)(1).

Thus, his

See Fed. R. Bankr.

Taal failed to meet that deadline and, instead,

filed an untimely brief on June 28, 2013.

See Doc. No. 18.

Untimely filing of a supporting brief permits but does not
require dismissal of a bankruptcy appeal.

See Hermosilla, 447

B.R. at 667 (noting that the First Circuit has not issued a
decision directly on point, but that “most other courts in the
First Circuit believe that the decision to dismiss bankruptcy
appeals for failure to comply with Rule 8009 is discretionary”
and collecting cases in support); see also In re Truong, 327
Fed. Appx. 260, 261 (2d Cir. 2009) (“[D]istrict courts should
exercise their discretion and determine whether dismissal is
appropriate where a party fails to comply with this rule.”).
To determine whether to accept a late filed brief, a court
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considers whether “the failure to act was the result of
excusable neglect.”

Fed. R. Bankr. P. 9006(b)(1); see Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 383
(1993) (noting that “Rule 9006 is a general rule governing the .
. . enlargement . . . of periods of time prescribed in other
bankruptcy rules”).

“The burden of proving excusable neglect

lies with the late-claimant.”

Jones v. Chemetron Corp., 212

F.3d 199, 205 (3d Cir. 2000); see In re Enron Corp., 419 F.3d
115, 121 (2d Cir. 2005); Hanson v. First Bank of S.D., N.A., 828
F.2d 1310, 1314 (8th Cir. 1987); In re Moretti, 260 B.R. 602,
608 (B.A.P. 1st Cir. 2001).
To demonstrate “excusable neglect,” an appellant must first
demonstrate that his filing was delayed due to “neglect.”

See

Pioneer, 507 U.S. at 388 (stating that “neglect” “encompasses
both simple faultless omissions to act and . . .
caused by carelessness”).

omissions

The appellant must then demonstrate

that his neglect was “excusable.”

Id. at 395.

Courts consider

a variety of factors in assessing whether a late-claimant’s
neglect was excusable, including “the danger of prejudice to the
debtor, the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including
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whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.”

Pioneer, 507 U.S. at

395; Graphic Commc’ns Int’l Union, Local 12-N v. Quebecor
Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir. 2001).
Considering the Pioneer factors, and mindful that pro se
pleadings are to be “liberally construed,” Estelle v. Gamble,
429 U.S. 97, 106 (1976), I decline to dismiss Taal’s appeal for
failure to timely file a supporting brief.

SMB does not argue

that it has been prejudiced by the late filing, and I discern no
prejudice.

The length of the filing delay was only one month.

Cf. In re Braniff Airways, Inc., 774 F.2d 1303, 1304-05 (5th
Cir. 1985) (upholding district court’s dismissal of a bankruptcy
appeal where, after nineteen months, appellant still had not
filed a brief); In re Tampa Chain Co., 835 F.2d 54, 55 (2d Cir.
1987) (upholding district court’s dismissal of bankruptcy appeal
for failure to prosecute where the debtor failed to file a brief
for seven months and failed to explain why).
case has not impacted the proceedings.

The delay in this

Although Taal has not

attempted to explain the delay, after reviewing the record
generously, it appears that Taal believed his motion to
amend/alter motion to stay pending appeal, Doc. No. 9, and his
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motion to compel discovery, Doc. No. 12, tolled the time period
for filing a brief in support of his appeal, since he filed his
brief, Doc. No. 18 (dated June 28, 2013), just four days after I
denied the latter motion.
Compel dated June 24, 2013.

See Endorsed Order denying Motion to
Finally, I see no evidence of bad

faith on Taal’s part in failing to timely file his brief.
Thus, I conclude that Taal’s untimeliness does not warrant
dismissal.
As SMB notes, however, there is a second problem with
Taal’s filing: it is unintelligible and fails to comply with
Rule 8010(a)(1), which lists the elements of an adequate brief.
See Fed. R. Bankr. P. 8010(a)(1).

Rule 8010(a)(1) states that

an appellant’s brief must contain the following sections, set
out in the following order:
1- A table of contents, with page references;
2- A table of cases cited in the brief, listed alphabetically,
with references to the pages of the brief on which they are
cited;
3- A list of statutes and other authorities cited in the
brief, with references to the pages of the brief on which
they are cited;
4- A statement of the basis of appellate jurisdiction;
5- A statement of the issues presented for review;
6- A statement of the applicable standard of appellate review;
7- A statement of the case, that explains: the nature of the
case, its procedural history, and the bankruptcy court’s
rulings;
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8- A statement of facts that are relevant to the issues on
appeal, with references to the bankruptcy court record;
9- An argument section: The contentions the appellant wishes
to make, supported by legal arguments and citations to
legal authorities; and
10A conclusion that indicates the relief the appellant
is seeking.
See id.

Taal’s brief does not come close to satisfying these

requirements, and I am accordingly unable to determine what
issues he is seeking to appeal.

Thus, I grant SMB’s motion to

strike the brief without prejudice to Taal’s right to file a new
brief within fourteen days that conforms to Rule 8010(a)(1).

I

deny SMB’s motion to the extent it seeks dismissal of Taal’s
appeal.

IV.

CONCLUSION

For the foregoing reasons, I grant in part and deny in part
SMB’s motion to strike and dismiss.

(Doc. No. 21.)

I deny

appellant’s motion for leave to file brief, (Doc. No. 19),
appellees’ motions to extend time to respond to appellant’s
brief (Doc. Nos. 28 and 31), and appellant’s motion for leave to
file reply brief (Doc. No. 34) as moot.

If the appellant

submits a revised brief within fourteen days, as permitted by

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this Order, the parties shall thereafter follow the briefing
schedule established by Rule 8009.2
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
August 5, 2013
cc:

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Baboucar B. Taal, pro se
Gregory T. Uliasz, Esq.
Adam Zlotnick, Esq.
Jay M. Niederman, Esq.
Lawrence P. Sumski, Esq.
Geraldine L. Karonis, Esq.

Appellees NSL and Discover Bank sought to join SMB’s motion to
strike and dismiss. See Doc. Nos. 23, 30. They, too, will have
an opportunity to respond if Taal submits a new brief. Their
briefs, Doc. Nos. 32, 33, are stricken.
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