In Re: MF Global Holdings Ltd.

Filing 3

MEMORANDUM OPINION AND ORDER: This bankruptcy appeal is dismissed without prejudice. The Clerk of Court is directed to close this case. The Clerk of Court is further directed to mail a copy of this order to Appellant by certifiedmail. SO ORDERED. (Signed by Judge Gregory H. Woods on 2/23/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In Re: MF Global Holdings Ltd.
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Debtor. :
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Michelle Y. Coe,
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Appellant, :
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v.
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MF Global Holdings Ltd.
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as Plan Administrator,
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Appellee. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 2/23/17

1:17-cv-167-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:
I.

BACKGROUND
Appellant Michelle Coe, proceeding pro se, appeals a number of bankruptcy court orders

entered in this Chapter 11 proceeding. For the reasons stated below, this appeal is dismissed
without prejudice.
II.

DISCUSSION
Federal Rule of Bankruptcy Procedure 8009(a) provides that an
appellant must file with the 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 . . . within 14 days after: (i) the appellant’s notice of
appeal as of right becomes effective under Rule 8002; or (ii) an order granting
leave to appeal is entered.

Fed. R. Bankr. P. 8009(a). Appellant’s notice of appeal was docketed by the bankruptcy court on
January 3, 2017, which meant that by operation of Rule 8009, Appellant’s Designation and
Statement were due by January 17, 2017. Appellant did not filer her Designation and Statement by
that date, however.

On February 8, 2017, the Court ordered Appellant to show cause no later than February 17,
2017 as to why this appeal should not be dismissed for failure to comply with Federal Rule of
Bankruptcy Procedure 8009(a). Dkt. No. 2. Appellant did not respond to the Court’s order to show
cause by the deadline provided in that order, nor, to date, has Appellant filed the Designation and
Statement required by Rule 8009(a) or requested an extension of time in which to do so.
Rule 8003(a)(2) of the Federal Rules of Bankruptcy Procedure permits a district court to “act
as it considers appropriate, including dismissing the appeal,” where an appellant “fail[s] to take any
step other than the timely filing of a notice of appeal.” The Second Circuit has made clear that
“[f]iling a Designation and Statement is mandatory,” and that a late filing will only be accepted if the
appellant demonstrates that the “failure to act was the result of excusable neglect” within the
meaning of Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure. In re Lynch, 430 F.3d
600, 603 (2d Cir. 2005). Moreover, “a bankruptcy appeal cannot proceed without a Designation and
Statement. If a party fails to file a Designation and Statement on time, and an untimely filing is
disallowed because no excusable neglect has been shown, the appeal has to be at an end.” Id. at 605;
accord Helen-Mays Holdings, LLC v. Geltzer, 2013 WL 12080931, at *2 (S.D.N.Y. Dec. 6, 2013)
(“[S]hould a party fail to timely file a designation and statement and fail to meet the conditions of
Rule 9006(b)(1), it is not allowed to file its designation and statement, and its appeal cannot
proceed.”) (quotation marks and brackets omitted) (quoting Lynch, 430 F.3d at 603), aff’d sub nom. In
re Kollel Mateh Efraim, LLC, 582 F. App’x 61 (2d Cir. 2014).
In this case, Appellant did not file the Designation and Statement required by Rule 8009(a)
in a timely manner, and did not make any submission in response to the Court’s order to show
cause. Under the circumstances, where Appellant has failed to comply with the clear dictates of
Rule 8009, the Court concludes that dismissal of this appeal is warranted. Cf. Andruzzi v. Pryor, 2007
WL 1100784, at *3 (E.D.N.Y. Apr. 4, 2007) (dismissing bankruptcy appeal for failure to “timely
serve a designation and statement of the issues”).
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III.

CONCLUSION
This bankruptcy appeal is dismissed without prejudice. The Clerk of Court is directed to

close this case.
The Clerk of Court is further directed to mail a copy of this order to Appellant by certified
mail.
SO ORDERED.
Dated: February 23, 2017
New York, New York

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_____________________
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GREGORY H. WOODS
REGORY H
OR
OR
United States District Judge
nited

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