Livecchi v. Gordon

Filing 7

-CLERK TO FOLLOW UP-ORDER dismissing appellant's 1 Bankruptcy Appeal in its entirety, with prejudice. Signed by Hon. David G. Larimer on 11/7/13. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
CHARLES R. LIVECCHI, SR.,

Appellant,
DECISION AND ORDER
13-CV-6236L
v.
KENNETH W. GORDON,
Chapter 7 Trustee,
Appellee.
________________________________________________
The appellant debtor, appearing pro se, appeals from an order by the Bankruptcy Court
(Warren, J.) dated March 4, 2013, which approved and ordered payment of commissions and
expenses to a Chapter 7 Trustee. (Dkt. #1-9).
On March 15, 2013, appellant filed a notice of appeal with the Bankruptcy Court, which was
docketed in this Court on May 8, 2013 (Dkt. #1-7). On May 14, 2013, this Court issued a scheduling
order directing appellant to file and serve his brief within twenty days, on or before June 3, 2012
(Dkt. #2).
Despite the passage of over five months, appellant has not filed a brief or obtained an
extension of time to do so.
It is well settled that federal courts are vested with the authority to dismiss a bankruptcy
appellant’s claims for failure to prosecute, sua sponte. See e.g., Bristol v. Ackerman, 2010 U.S. Dist.
LEXIS 27647 (E.D.N.Y. 2010); Babcock v. Philp, 2008 U.S. Dist. LEXIS 88329 (E.D.N.Y. 2008).
Failure to file a timely brief has been held to be inexcusable, where the appellant provides no
explanation for the failure after several months. See e.g., Balaber-Strauss v. Reichard, 835 F.2d 54,
55 (2d Cir. 1987); Bristol, 2010 U.S. Dist. LEXIS 27647 at *6; Adler v. Bancplus Mortgage Corp.,
108 B.R. 435, 438 (S.D.N.Y. 1989).

Appellant here has failed to file a brief despite the fact that it is now five months overdue,
and has not provided the Court with any explanation for his delay. I find this failure to be
inexcusable under the circumstances, notwithstanding plaintiff’s pro se status. See Edwards v. INS,
59 F.3d 5, 8 (2d Cir. 1995) (pro se plaintiffs are required to inform themselves of relevant procedural
rules, and to comply with them). Appellant was clearly on notice of the need to comply with the
applicable procedural rules and filing deadlines, having been provided with adequate notice of those
requirements in this Court’s scheduling order. (Dkt. #2). Appellant was also aware of the
consequences of failing to comply with the applicable deadlines for filing briefs, having had prior
bankruptcy actions dismissed for the same failure. See e.g., Livecchi v. Gordon, 10-CV-6615 at
Dkt. #2 (November 18, 2010 order of Hon. Charles Siragusa, warning Livecchi to correct his failure
to timely perfect the appeal within ten days or else the matter would be dismissed) and Dkt. #3
(December 20, 2010 letter order of Hon. Charles Siragusa, directing that the matter be dismissed due
to Livecchi’s “multiple failures . . . to properly present [his] appeal, despite detailed guidance from
the Bankruptcy Court and this Court”). See also Livecchi v. Gordon, 11-CV-6227 at Dkt. #5 (April
12, 2012 order of this Court, dismissing a prior bankruptcy appeal by Livecchi for failure to file a
brief more than eleven months after it was due).
The Court has considered whether lesser sanctions would be appropriate, and concludes that
given the length of the appellant’s delay and his apparent unwillingness to continue prosecution of
the instant appeal, his conduct is willful and dismissal is warranted.1
The Court need not reach the merits of the pending appeal, as this action is subject to
dismissal for failure to prosecute. Nonetheless, the Court has reviewed the order appealed-from, and
finds no basis on the merits to disturb it.

1

Although appellant has engaged in filings within the last year, they were unrelated to
his obligations to file a brief. Instead, appellant moved, twice, for recusal of the judge. (Dkt. #3,
#5). Those motions were denied as meritless. (Dkt. #4, #6).
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Accordingly, the instant appeal is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
November 7, 2013.

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