D'AGOSTINO v. PARMER

Filing 20

MEMORANDUM OPINION filed. Signed by Judge Robert Kirsch on 1/7/2025. (kht)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

In re:

JASON FARMER,

Bankruptcy Action No. 22-14343 (MBK)

Debtor.

STEVEN D'AGOSTINO,
Appellant,

Bankruptcy Appeal No. 23-1670 (RK)
V.

JASON FARMER,

MEMORANDUM OPINION

Appellee.

KIRSCH, District Judge
THIS MATTER comes before the Court upon Appellant Steven D'Agostino's

("Appellant") failure to comply with the Court's November 21, 2024 Order directing Appellant to
"order and provide the necessary transcripts for his appeal in accordance with Federal Rule of
Bankruptcy Procedure 8009 within thirty (30) days." (See ECF No. 19.) For the reasons set forth

below, the Bankruptcy Appeal is DISMISSED.

I. BACKGROUND
A. SUBSTANCE OF THE APPEAL
This matter involves Appellant-Creditor Steven D'Agostino's Appeal of the Bankruptcy
Court's denial of his motion to dismiss Appellee-Debtor Jason Farmer's Chapter 13 bankruptcy
proceedings. As part of the bankruptcy petition. Appellant was listed as a creditor with a

contingent, nonliquidated, and disputed claim. (See Bankr. ECF No. 1 at 25.) On July 18, 2022,
Appellant Steven D'Agostino filed a motion to dismiss Debtor Jason Farmer's bankruptcy petition
for bad faith. (Bankr. ECF No. 17.) The Bankruptcy Court held a hearing on January 11, 2023
regarding confirmation of the Chapter 13 plan and Appellant's motion to dismiss the bankruptcy.
(Bankruptcy Court Docket Entries, dated January 11, 2023.) This Court—sitting on appeal—is
without the transcript of that hearing. The day following the hearing, the Bankruptcy Court issued
its short order confirming the Chapter 13 plan and denying Appellant's motion to dismiss. (Bankr.
ECF No. 68.)
On February 8,2023, Appellant filed his motion to reconsider the Bankruptcy Court's order
on the confirmation of the plan and the denial of the motion to dismiss. (Bankr. ECF No. 80.) A
month later, the Bankruptcy Court held a hearing on this motion to reconsider and denied the
motion (see Bankruptcy Court Docket Entry, dated March 8, 2023); this Court is without the
transcript of that hearing as well. The following day, the Bankruptcy Court issued an order
memorializing the same. (Bankr. ECF No. 95). On March, 24, 2023, Appellant filed a Notice of
Appeal of the Bankruptcy Court's March 9, 2023 order denying the motion to reconsider the
motion to dismiss and the confirmation of the Chapter 13 plan. (ECF No. 1.)
B. RELEVANT EVENTS SINCE THE FILING OF THE APPEAL
On March 29, 2023, the Court granted Appellant's request to proceed in forma pauperis.
(ECF No. 3.) Four days later. Appellant filed a "Designation of Record on Appeal" that lists forty
(40) docket entries in the Bankruptcy Action that are "germane to the issues of this appeal." (See

ECF No. 4 at 1.) Additionally, under a section titled "Rule 8009(b)(l)(B) certification," Appellant
writes "Although they may have been helpful to some extent, Appellant believes that transcripts
of the confirmation/motion hearings will not be not (sic) necessary to decide the issues on appeal."
(Id. at 2.) He also further says, "given Appellant's financial situation and the costs that would

otherwise be involved. Appellant will not be ordering transcripts." (Id.) Also contained within this
document are Appellant's statement of issues: (i) "the Bankruptcy Court should not have
confirmed the proposed Chapter 13 plan" and (ii) "Appellant's future claim (i.e. his pending

lawsuit) against the debtor should not have been impacted (impaired) at all by any Chapter 13
plan." (M) On May 1, 2023, Appellant filed his Letter Brief in Support of Appeal. (ECF No. 6.)
This Appeal began before a different judge in the District and was later transferred to the
Undersigned, who ordered Appellant to, inter alia, be in compliance with the Federal Rules of
Bankruptcy Procedure, and order and provide the relevant transcripts of the Bankruptcy Court
proceedings. (ECF No. 8 at 3.) In its Memorandum Order, the Court highlighted the requirements
under Federal Rule of Bankruptcy Procedure 8009(b)(l) that mandate an appellant must order "a
transcript of such parts of the [bankruptcy] proceedings not already on file as the appellant
considers necessary for the appeal . . ." (Id. at 2 (citing Fed. R. Bankr. 8009(b)(l)).) While
Appellant states that Bankruptcy Court transcripts "will not be [] necessary to decide the issues on
appeal" the Court found that it has "insufficient information to decide the questions Appellant
raises." (Id. at 3.) The Court went on to say that "[w]ithout the transcripts Appellant has declined
to provide, this Court cannot conduct a meaningful review of the Bankruptcy Court's factual
findings or legal conclusions under any standard of review. Appellant must provide the Bankruptcy
Court's reasoning for its decision . . ." (Id) The Court also provided that "if Appellant fails to
order the relevant transcripts. Appellant must show cause in writing by April 3, 2024, why this
appeal should not be dismissed for failure to order and provide the transcripts of the Bankruptcy
Court proceedings in accordance with Rule 8009." (Id.)
Four days after the Court entered its Memorandum Order (ECF No. 8), Appellant filed a
Letter arguing that if the transcripts are required, "they should be obtained at government expense,

given that [Appellant] ha[s] been granted IFP status in this appeal." (ECF No. 9 at 1.) Following
that Letter, the Court entered a Text Order that stated, "the Court may order transcripts produced
for an appellant proceeding IFP if the Court 'certifies that the suit or appeal is not frivolous.'"

(ECF No. 10 (quoting 28 U.S.C. § 753(f)).) The Court found that it was "unable to make this
certification based on the papers submitted and will not order the transcripts at the government's
expense." (Id) Since then, the Court and the Honorable Michael B. Kaplan (U.S.B.J.) have held
various conferences with the parties. (See ECF Nos. 13-17.)
On October, 11, 2024, the Court entered a Text Order "direct[ing] the parties to the
Honorable Michael B. Kaplan, the Bankruptcy Judge in the instant matter, who will determine

whether Appellant's appeal can be certified under Section 753." (ECFNo. 18.) Eighteen (18) days
later, the Bankruptcy Court entered an Opinion and Order denying Appellant's Request for
Transcripts in this Bankruptcy Appeal. (Bankr. ECF No. 109.) There, the Bankruptcy Court found

that "Appellant has failed to satisfy the substantive standards entitling him to such relief, see 28
U.S.C. § 753(f), because Appellant's appeal is frivolous and does not present a substantial
question." (Id. at 1.) In finding the Appeal frivolous, the Bankruptcy Court noted that "Appellant's
allegations are largely repetitive and do not introduce new legal or factual issues." (Id. at 6.)
On November 21,2024, this Court issued an Order finding the Bankruptcy Court's Opinion
denying Appellant's Request for Transcripts was "a comprehensive, well-reasoned written
decision" concluding that "Appellant 'failed to demonstrate that his proposed appeal is
nonfrivolous' or presented a substantial question pursuant to 28 U.S.C. § 753(f)."1 (ECF No. 19 at
2.) The Court's Order denied as moot Appellant's request for transcripts based on the Banlcmptcy

The Court's Order also noted that since the time to appeal the Bankruptcy Court's order denying
Appellant's request for the Court to provide transcripts has lapsed, the Bankruptcy Court's "Order is law
of the case." Mat 2

Court's Opinion and Order on the same. (Id.) Further, the Court ordered Appellant to "order and
provide the necessary transcripts for his appeal in accordance with Federal Rule of Bankruptcy

Procedure 8009 within thirty (30) days" and failure to do so would result in "his appeal [being]
adjudicated solely on the existing record, which includes Judge Kaplan's recent opinion." (Id.)

II. LEGAL STANDARD
Federal Rule of Bankruptcy Procedure 8009(a) "requires the filing of a designation of the
items to be included in the record on appeal and a statement of the issues within 14 days of the
filing of a notice of appeal." In re Farzan, No. 21-2445, 2022 WL 1238354, at *1 (3d Cir. Apr.
27, 2022). According to Rule 8009(a)(4), the "record on appeal must include . . . any opinion,
findings of fact and conclusions of law relating to the issues on appeal, including transcripts of all
oral rulings." Fed. R. Bankr. P. 8009(a)(4). Rule 8009(b) provides that an "appellant must order in
writing... a transcript of such parts of the proceedings not already on file as the appellant considers

necessary for the appeal." Id. 8009(b)(l)(A). The Rules provide that "[a]t the time of ordering, a
party must make satisfactory arrangements with the reporter to pay for the transcript." Id.

8009(b)(4).
A court sitting on appeal has discretion to dismiss an appeal for an appellant's failure to
comply with Rule 8009(a). See In re Farzan, 2022 WL 1238354, at *2 (citing Fed. R. Bankr. P.

8003(a)(2)); see also In re Buccolo, 308 F. App'x 574, 575 (3d Cir. 2009) (failing to provide
transcripts of Bankruptcy Court proceedings as required by Rule 8006 is grounds for dismissal). It
is good practice, however, for a district court to provide the appellant with "notice and an
opportunity to respond before dismissing [the] appeals." Id.

III. DISCUSSION
Twenty-two (22) months since the filing of this Appeal, this Court is still without the
relevant transcripts. (See ECF No. 19 (directing appellant to provide the necessary transcripts by
December 21, 2024).) Without the relevant records. Appellant has failed to provide the Court with
a complete record of the relevant factual or legal basis for the Bankruptcy Court's decision.
Therefore, in considering the relevant factors, dismissal of Appellant's Appeal is warranted.
A party appealing a Bankruptcy Court's ruling, must designate certain items to be included
in the record of appeal, including "findings of fact, and conclusions of law relating to the issues
on appeal, including transcripts of all oral rulings." See In re Znllo, No. 19-8384, 2020 WL
5425787, at *1 (D.N.J. Sept. 10, 2020) (quoting Fed. R. Bankr. P. 8009(a)). While the Federal
Rules of Bankruptcy Procedure "do[] not require that the record on appeal include all transcripts
of the proceedings below, its provisions make clear that those documents which include findings
of fact or conclusions of law are deemed part of the record, including transcripts." Id. Thus,
dismissal "is appropriate where the order being appealed from does not disclose the factual or legal
basis of the bankruptcy judge's decision because the court may not 'conduct a meaningful review
of the issue without reviewing the transcript.'" In re Olick, 466 B.R. 680, 695 (E.D. Pa. 2011),

affd, 498 F. App'x 153 (3d Cir. 2012) (quoting In re Corio, No. 07-1899, 2008 WL 4372781, at
*6 (D.N.J. Sept. 22, 2008)).
Here, the Appellant fails to provide the transcripts for both the January 11, 2023 hearing
on the motion to dismiss and the March 8, 2023 hearing on the motion to reconsider the denial of
the motion to dismiss. As is typical in bankruptcy courts, the Bankruptcy Court's orders are short,
while the hearings, and the transcripts memorializing the same, contain the legal and factual bases

underlying the orders. (See Bankr. ECF Nos. 68, 95.) Without the transcripts, this Court cannot
conduct any review whatsoever of the Bankruptcy Court's decision.
Even still, the Third Circuit, in an unpublished decision, "stressed that failure to provide
transcripts alone does not usually justify dismissal" and the reviewing court "should consider a
host of factors, including whether the defaulting party's action is willful or merely inadvertent,
whether a lesser sanction can bring about compliance and the degree of prejudice the opposing
party has suffered because of the default." In re Heine, 2022 WL 883938, at *2. Courts should also
consider whether the noncompliant party was given notice or an opportunity to respond. See id.
That decision and another unpublished decision by the Third Circuit also referenced the
Poulis factors in considering whether dismissal of an appeal is an appropriate sanction. See id; see

also In re Smiles, No. 22-1038, 2023 WL 3563000, at *3 (3d Cir. May 19, 2023) (citing Poulis v.
State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)). Under the Poulis factors, a court
is to consider six factors in determining whether to dismiss a case: (1) the extent of the party's
personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling
orders and respond to discovery; (3) a History of dilatoriness; (4) whether the conduct of the party
or the attorney was mllful or in bad faith; (5) the effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or

defense. Poulis, 747 F.2d at 868 (italics in original).
As an initial matter, the lack of transcripts has caused this Bankruptcy Appeal to linger on
much longer than it should have. The issue of whether the transcripts could be ordered and
produced through other sources is final, not on review here, and is the law of the case as provided
in the Court's November 21, 2024 Order (ECF No. 19) and the underlying Bankruptcy Court's

Opinion and Order regarding the same (Bankr. ECF No. 109). Therefore, in light of the foregoing,
the Court examines whether dismissal is appropriate at this junctire.
Throughout this protracted Bankruptcy Appeal, Appellant was provided ample notice
about the need for the proper records, principally the Bankruptcy Court transcripts, including on
the following occasions:

(i) March 20, 2024 - the Memorandum Order requiring (a) Appellant to be "in
compliance with the Federal Rules of Bankruptcy Procedure [and] order and
provide the relevant transcripts of the proceedings before the Bankruptcy Court in
which the Bankruptcy Court made factual findings and legal conclusions that
Appellant challenges on appeal in compliance with the Federal Rules of Bankruptcy
Procedure" and (b) notifying Appellant that if he "fails to order the relevant

transcripts, [he] must show cause in writing by April 3, 2024, why this appeal
should not be dismissed for failure to order and provide the transcripts of the
Banlcruptcy Court proceedings in accordance with Rule 8009." (ECF No. 8)

(ii) October 29, 2024 - the Bankruptcy Court's Opinion and Order Denying
Appellant's Request for Transcripts for failing to satisfy the standards for free
transcripts under 28 U.S.C. § 753(f). (Bankr. ECF No. 109)
(iii) November 21, 2024 - the Court's denial as moot Appellant's Request for
Transcripts based on the Bankruptcy Court's Opinion and Order on the same. (ECF
No. 19 at 2.) The Court ordered Appellant to "order and provide the necessary
transcripts for his appeal in accordance with Federal Rule of Bankruptcy Procedure

8009 within thirty (30) days." (Id.)
During this time, status conferences took place before both this Court and the Bankruptcy
Court. (See ECF Nos. 14-17.) In all, the record in this Bankruptcy Appeal is clear: Appellant has
long been alerted of the need to come into compliance with Rule 8009 and still failed to do so.
Therefore, there appears to be nothing, including a lesser sanction, that the Court can do to put
Appellant in compliance. While the degree of prejudice to the Appellee may be less because they
have not yet filed their appeal brief, they have, nevertheless, had to divert time away from their
bankruptcy proceeding to participate in this Appeal, including the numerous conferences before
the Bankruptcy Court, and on occasion, this Court. (See ECF Nos. 11, 13-17.) To be sure, the
nature of the prejudice to the Appellee does not warrant a different outcome here.

For completeness, the Court also finds that Appellant's failure to comply with Rule 8009
analyzed under the Poulis factors, also favors dismissal: (1) Appellant is personally responsible
for his noncompliance as he is acting pro se, see Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir.

2008); (2) Appellee is prejudiced by an ongoing protracted Bankruptcy Appeal, involving many
conferences; (3) Appellant and his unwillingness to pay for the relevant transcripts is the primary
reason this Bankruptcy Appeal is nearing two years' old; (4) there is no confusion here as to what
Appellant is required to do, yet he remains in noncompliance; (5) no other sanction is appropriate
as the Court has no way to conduct a meaningful review without the transcripts; and (6) while the
Court cannot itself assess the meritoriousness of the Appeal without reviewing the transcripts, the
Court is persuaded by the Bankruptcy Court's Opinion and Order (Bankr. ECF No. 109), which

concluded that Appellant has provided no indicia that this Appeal is nonfrivolous and is anything
but a regurgitation of prior arguments. See Poulis, 747 F.2d at 868. Examining the Poulis factorswhich largely overlap with the other factors the Court considers—does not change this Court's
decision to dismiss the Appeal.2
Here, the Appellant's failure to provide the necessary transcripts prevents the Court from
evaluating the merits of Appellant's arguments on appeal, and thus the only outcome, after availing
the Appellant significant opportunities to comply with Rule 8009, is dismissal. Therefore,

consistent with other judges in this District, the Court will dismiss Appellant's Appeal for failure
to comply with Federal Rule of Bankruptcy Procedure 8009. See, e.g., In re Zullo, 2020 WL
5425787, at *2; ^e ^o Heine v. Wells Fargo Bank, NA, No. 20-10268, 2020 WL 7417812,at *4

2 Given the doubtful merit of Appellant's Appeal as just evaluated, the Court finds it unlikely that it would
disturb the Bankruptcy Court's decision even if the Court had the relevant transcripts. The Bankruptcy
Court's determination of whether bad faith permeated over a bankruptcy proceeding or a bankruptcy plan
would be reviewed for abuse of discretion, a difficult standard for Appellant to satisfy. See In re Forever
Green Ath. Fields, Inc., 804 F.3d 328, 335 (3d Cir. 2015).

(D.NJ. Dec. 18, 2020), affdsub nom. In re Heine, 2022 WL 883938; In re Hopkins, No.23-2421,
2023 WL 8437234, at *4 (D.N.J. Dec. 5, 2023), reconsideration denied. No. 23-2421, 2024 WL

3597239 (D.N.J. July 31, 2024).

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CONCLUSION
For the foregoing reasons, the Appeal is DISMISSED under Federal Rule of Bankruptcy
Procedure 8003 and 8009.

ROBERT KlRSCH
UNITED STATES DISTRICT JUDGE
Dated: January 7,2025

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