FPSDA I, LLC et al v. Larin

Filing 6

MEMORANDUM AND ORDER - For the foregoing reasons, Appellants' appeal is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 1/8/2014. E.D. Bankr. Adv. Proc. No. 8-12-08032. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
FPSDA I, LLC; FPSDA II, LLC;
CDDC ACQUISITION COMPANY, LLC;
MIDDLE COUNTRY ROAD DONUTS, LLC;
MILLER PLACE DONUTS, LLC; COMMACK
ROAD DONUTS, LLC; FIVE POINTS
DEVELOPMENT PARTNERS, LLC; BLUE
POINT VENTURES, LLC; CDDC HOLDING
COMPANY, LLC; BENFIELD DONUTS, LLC;
MOUNTAIN ROAD DONUTS, LLC;
HIGHBRIDGE DONUTS, LLC; KINGDOM
DONUTS LLC; D3C, LLC; UPPER
MARLBORO, LLC; and METRO SHOPS,
LLC,

E.D. Bankr. Adv. Proc.
No. 8-12-08032
MEMORANDUM & ORDER
13-CV-1093(JS)

Appellants,
-againstLISSETH LARIN,
Appellee.
------------------------------------X
APPEARANCES
For Appellants:
Michael S. Amato, Esq.
Ruskin Moscou Faltischek, P.C.
1425 Rexcorp Plaza East Tower, 15th Floor
Uniondale, NY 11556
For Appellee:

Peter Arcadio Romero, Esq.
Frank & Associates, P.C.
500 Bi-County Blvd., 112n
Farmingdale, NY 11735

SEYBERT, District Judge:
Pending before the Court is an appeal arising out of a
Chapter

11

Bankruptcy

bankruptcy
Court

for

action
the

filed

Eastern

in

the

District

of

United
New

States
York

by

debtors/appellants FPSDA I, LLC; FPSDA II, LLC; CDDC Acquisition
Company,

LLC;

Middle

Country

Road

Donuts,

LLC;

Miller

Place

Donuts, LLC; Commack Road Donuts, LLC; Five Points Development
Partners, LLC; Blue Point Ventures, LLC; CDDC Holding Company,
LLC; Benfield Donuts, LLC; Mountain Road Donuts, LLC; Highbridge
Donuts, LLC; Kingdom Donuts, LLC; D3C, LLC; Upper Marlboro, LLC;
and

Metro

Shops,

Appellants

LLC

commenced

the

(collectively
bankruptcy

“Appellants”).
action,

After

appellee

Lisseth

Larin (“Appellee”) commenced a class action (the “Class Action”)
on behalf of herself and as class representative of all those
similarly situated in the Eastern District of New York pursuant
to, inter alia, the Fair Labor and Standards Act, 29 U.S.C.
§§ 206-07.
No.

See Larin v. CDDC Acquisition Company, LLC et al.,

11-CV-5921

adversary

(E.D.N.Y.).

proceeding

against

As

such,

Appellee

Appellants

seeking

to

filed
extend

an
the

automatic stay to non-debtor parties pursuant to 11 U.S.C. § 362
and for a preliminary injunction to enjoin pursuit of the Class
Action against particular non-debtors.

On December 21, 2012,

the Bankruptcy Court denied Appellants’ motion for a preliminary
injunction.

Appellants

now

appeal

that

order.

For

the

following reasons, the Court sua sponte DISMISSES WITH PREJUDICE
Appellants’

appeal

due

to

inexcusable

neglect

to

file

an

appellate brief pursuant to Rule 8009 of the Federal Rules of
Bankruptcy Procedure.

2

BACKGROUND
Appellants

filed

Court on March 1, 2013.

their

Notice

day,

the

Appeal

with

this

The Clerk of the Court docketed that

Notice of Appeal on March 6, 2013.
following

of

Clerk

of

the

(See Docket Entry 1.)
Court

entered

a

The

Notice

of

Docketing of Bankruptcy Appeal (“Notice of Docketing”) informing
Appellants that the appeal had been docketed and ordering that
“[f]iling

and

accomplished

service
in

of

the

accordance

briefs

with

Rule

and

appendix

8009

of

are

the

Rules and/or the Individual Judge’s Court Rules.”1
Docketing,

Docket

accompanying

the

Entry
Notice

5.)
of

Accordingly,

Docketing

to

be

Bankruptcy
(Notice of

the

docket

text

explicitly

ordered

that

“Appellant’s [sic] brief shall be served and filed with[in] 14
days after the entry of the appeal on the docket . . . .”
Appellants have not filed a brief in support of their
appeal, nor have they communicated with this Court since filing
the Notice of Appeal over nine months ago.
DISCUSSION
Rule 8009 of the Federal Rules of Bankruptcy Procedure
states

that

“[u]nless

the

district

court

or

the

bankruptcy

appellate panel by local rule or by order excuses the filing of

The electronic “receipt” generated by the Electronic Case
Filing system indicates that Appellants’ counsel was sent notice
of the entry on March 7, 2013 and that the entry was regenerated
and sent to counsel for both sides again on March 15, 2013.
1

3

briefs or specifies different time limits[, t]he appellant shall
serve and file a brief within 14 days after entry of the appeal
on

the

docket

8009(a)(1).

pursuant

to

Although

jurisdictional,

“the

Rule

compliance
court

FED.

8007.”2
with

should

exercise

BANKR.

8009

Rule

R.

is

P.
not

discretion

to

determine whether dismissal [for failure to file a timely brief]
is appropriate in the circumstances, and its decision to dismiss
will be affirmed unless it has abused its discretion.”

Balaber–

Strauss v. Reichard (In re Tampa Chain Co.), 835 F.2d 54, 55 (2d
Cir. 1987) (collecting cases).
appropriate,

courts

In deciding whether dismissal is

consider

whether

the

appellant

demonstrated “bad faith, negligence, or indifference.”

has
In re

Geaney, No. 08-CV-8208, 2011 WL 336464, at *1 (S.D.N.Y. Jan. 25,
2011) (citing In re Tampa Chain Co., 835 F.2d at 55)); see also
Oren v. Nicholas, 10-CV-2489, 2010 WL 5127664, at *1 (E.D.N.Y.
Dec.

9,

2010)

(same);

Bristol

v.

Ackerman

(In

re

Marcel

C.

Bristol), No. 09–CV–1638, 2010 WL 1223053, at *2 (E.D.N.Y. May
24, 2010) (same).
An

appellant’s

failure

to

file

an

appellate

brief

without any explanation for many months constitutes inexcusable
indifference to pursuing the appeal.

Under such circumstances,

The time period to file the brief is “only triggered once the
appeal has been docketed in the district court and notice of the
docketing of the appeal has been sent to all parties.” Glatzer
v. Enron (In re Enron Corp.), 475 F.3d 131, 134 (2d Cir. 2007).
2

4

a

district

prejudice.

court

may

sua

sponte

dismiss

the

appeal

with

See In re Tampa Chain Co., 835 F.2d at 56 (affirming

dismissal of bankruptcy appeal where defendants filed no brief
for seven months after the due date); In re Geaney, 2011 WL
336464,

at

*1

(sua

sponte

dismissing

bankruptcy

appeal

with

prejudice where appellant filed no brief for two years after
filing

his

notice

of

appeal,

one

month

after

notice

of

docketing, and two weeks after the due date); Oren, 2010 WL
5127664, at *2 (sua sponte dismissing bankruptcy appeal with
prejudice where appellant filed no brief for six months after
filing notice of appeal and ten days after the due date); In re
Bristol,

2010

WL

1223053,

at

*2-3

(sua

sponte

dismissing

bankruptcy with prejudice where appellant filed no brief for
eleven months after notice of docketing).
Here,

Appellants

have

not

sought

to

litigate

the

appeal in any manner since filing the Notice of Appeal more than
nine months ago.

Appellants have not filed an appellate brief

as required by Rule 8009 and the Court’s Notice of Docketing nor
have they communicated with the Court or sought to explain the
delay in filing their brief.
Court

finds

that

Appellants

Under these circumstances, the
have

demonstrated

indifference to pursuing [their] appeal.”

“inexcusable

In re Geaney, 2011 WL

336464, at *1 (quoting Oren, 2010 WL 5127664, at *2).

Although

the

outright

Court

may

order

sanctions
5

less

severe

than

dismissal,

the

Court

finds

that

anything

less

than

outright

dismissal would be unwarranted given that Appellants have not
communicated with the Court in nine months.
CONCLUSION
For

the

foregoing

DISMISSED WITH PREJUDICE.

reasons,

Appellants’

appeal

The Clerk of the Court is directed to

enter judgment accordingly and mark this case CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

is

January
8 , 2014
Central Islip, NY

6