FPSDA I, LLC et al v. Larin
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
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,
E.D. Bankr. Adv. Proc.
MEMORANDUM & ORDER
Michael S. Amato, Esq.
Ruskin Moscou Faltischek, P.C.
1425 Rexcorp Plaza East Tower, 15th Floor
Uniondale, NY 11556
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
debtors/appellants FPSDA I, LLC; FPSDA II, LLC; CDDC Acquisition
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;
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.
See Larin v. CDDC Acquisition Company, LLC et al.,
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
following reasons, the Court sua sponte DISMISSES WITH PREJUDICE
appellate brief pursuant to Rule 8009 of the Federal Rules of
Court on March 1, 2013.
The Clerk of the Court docketed that
Notice of Appeal on March 6, 2013.
(See Docket Entry 1.)
Docketing of Bankruptcy Appeal (“Notice of Docketing”) informing
Appellants that the appeal had been docketed and ordering that
Rules and/or the Individual Judge’s Court Rules.”1
“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.
Rule 8009 of the Federal Rules of Bankruptcy Procedure
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.
briefs or specifies different time limits[, t]he appellant shall
serve and file a brief within 14 days after entry of the appeal
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.”
Strauss v. Reichard (In re Tampa Chain Co.), 835 F.2d 54, 55 (2d
Cir. 1987) (collecting cases).
In deciding whether dismissal is
demonstrated “bad faith, negligence, or indifference.”
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.
Bristol), No. 09–CV–1638, 2010 WL 1223053, at *2 (E.D.N.Y. May
24, 2010) (same).
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).
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
prejudice where appellant filed no brief for two years after
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
bankruptcy with prejudice where appellant filed no brief for
eleven months after notice of docketing).
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.
Under these circumstances, the
indifference to pursuing [their] appeal.”
In re Geaney, 2011 WL
336464, at *1 (quoting Oren, 2010 WL 5127664, at *2).
dismissal would be unwarranted given that Appellants have not
communicated with the Court in nine months.
DISMISSED WITH PREJUDICE.
The Clerk of the Court is directed to
enter judgment accordingly and mark this case CLOSED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
8 , 2014
Central Islip, NY
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