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)

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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

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