Duran v. Dill et al
REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea. Objections to R&R due by 9/15/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cbf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CRAIG H. DILL et al.,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
On June 21, 2017, the United States Bankruptcy Court for the District of New Mexico
entered an order approving the sale of eight bowling lanes and related equipment pursuant 11
U.S.C. § 363(f). Dissatisfied with the result, Appellant Steve Duran, who had objected to the
sale below and lost following a bench trail in the Bankruptcy Court, appealed. Although Duran
filed the appropriate notice, and the parties elected to proceed in this Court, Duran did not perfect
the appeal by designating the record and filing a statement of issues. See Fed. R. Bankr. P.
8009(a)(1)(A). Acting under an order of reference to conduct proceedings, see 28 U.S.C. § 636,
the Court issued Duran an order to cure the defects by August 11, 2017. Duran failed to do so
and, in fact, has not taken any action on the matter since filing the notice of appeal. The Court
now RECOMMENDS that the appeal be DISMISSED for lack of prosecution.
The governing law is straightforward. Duran was required to “file with 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. Bankr. P. 8009(a)(1)(A). Duran filed his notice
of appeal on June 28, 2017, giving him until July 12, 2017 to submit the designation and
statement. See Fed. R. Bankr. P. 8002(a)(1); 8009(a)(1)(B)(i) (together requiring the designation
Proposed Findings &
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and statement to be filed within fourteen days after the notice of appeal is filed). Duran did not
file these documents, and the Clerk of the Bankruptcy Court therefore filed a notice that the
Clerk was unable to transmit the record on appeal.
After this Court received the Clerk’s notice, the Court gave Duran the opportunity to file
paperwork to perfect his appeal and allowed him until August 11, 2017 to cure the procedural
defects. Despite this additional chance, neither the Bankruptcy Court docket nor the record in
this case reflects that Duran has complied with his obligations under Rule 8009. At this juncture,
Duran has taken no action on the appeal that the Court can discern since paying the filing fee.
The Court therefore recommends dismissal because Duran has not prosecuted his appeal. See
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (upholding district court dismissal of pro
se appeal from the bankruptcy court for failure to prosecute where “plaintiffs had failed both to
designate the record on appeal and to file a statement of the issues to be raised” and also “did not
file a brief within the time designated by the district court”).
For the reasons stated above, the Court RECOMMENDS the appeal be DISMISSED for
lack of lack of prosecution.
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
WITHIN FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT PARTY MAY,
PURSUANT TO 28 U.S.C. § 636(B)(1), FILE WRITTEN OBJECTIONS TO SUCH PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION. A PARTY MUST FILE ANY OBJECTIONS
WITH THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED IF THAT PARTY
WANTS TO HAVE APPELLATE REVIEW OF THE PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION. IF NO OBJECTIONS ARE FILED, NO APPELLATE
REVIEW WILL BE ALLOWED. PURSUANT TO FED. R. CIV. P. 72(B)(2), A PARTY MAY
RESPOND TO ANOTHER PARTY’S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER
BEING SERVED WITH A COPY OF THE OBJECTIONS.
Proposed Findings &
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