Wynn

Filing 16

ORDER Debtor/Appellant, James I. Wynn, Sr., is directed to perfect his appeal within twenty (20) days of entry of this Order. This includes designating the Record on Appeal, providing transcripts of court proceedings, and filing a brief, in conforma nce with Rules 8009, 8010, 8014 and 8015 of the Federal Rules of Bankruptcy Procedure. Failure to do so within the allotted time could result in dismissal of the appeal and affirmance of United States Bankruptcy Judge Paul R. Warren's July 27, 2017 Decision and Order converting appellant's Chapter 13 proceeding to a Chapter 7 proceeding. Signed by Hon. David G. Larimer on 1/2/2018. Copy of this Order sent by First Class Mail to plaintiff James I. Wynn, Sr. to his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________

IN RE JAMES I. WYNN, SR.,

ORDER

Debtor

17-CV-6547L

________________________________________________

The appellant debtor, appearing pro se, appeals from an order by the Bankruptcy Court
(Warren, J.) dated July 27, 2017, which converted his pending Bankruptcy case (#2-13-20304,
Dkt. #285) from a Chapter 13 proceeding to a Chapter 7 proceeding. (Dkt. #14 at 13).
On August 8, 2017, appellant filed a Notice of Appeal with the Bankruptcy Court, which
was docketed in this Court on August 9, 2017 (Dkt. #1). Per Rule 8009(a) (formerly designated
as Rule 8006) of the Federal Rules of Bankruptcy Procedure, the appellant was required to file a
designation of items to be included in the record and a statement of the issues presented within
fourteen days thereafter. Fed. R. Bankr. Proc. 8009(a).
Appellant did not timely file a record designation or statement of issues presented. On
September 28, 2017, appellant moved (Dkt. #6) for an extension of time to compile the record and
file a brief. The Court granted that request (Dkt. #7) on October 6, 2017, and ordered that
appellant designate the record on appeal and file his brief within thirty days – on or before
November 5, 2017.
On or about October 10, 2017, the appellant filed a second Notice of Appeal, and requested
that it be combined with the first. (Dkt. #8). The Court granted that request on October 24, 2017,
and reminded the appellant that “he must comply with the Bankruptcy Rules and Procedures for
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filing the Record on Appeal and Debtor’s Brief, as referenced in this Court’s [October 6, 2017]
Order.” (Dkt. #9).
To date, appellant has failed to file a designation of the record on appeal and statement of
issues, or an opening brief, and has taken no other action to perfect his appeal.1
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., Livecchi v. Gordon, 2013 U.S.
Dist. LEXIS 159724 (W.D.N.Y. 2013); Frumusa v. Frumusa, 2010 U.S. Dist. LEXIS 34921
(W.D.N.Y. 2010); 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 timely perfect an appeal has
been held to be inexcusable, where the appellant provides no explanation for the failure after
several months. See e.g., In re Tampa Chain Co., 835 F.2d 54, 55 (2d Cir. 1987); Livecchi, 2013
U.S. Dist. LEXIS 159724 at *2; Frumusa, 2010 U.S. Dist. LEXIS 34921 at *4-*5.
The appellant has offered no explanation or excuse for his failure to timely perfect his
appeal, despite having already obtained (and exhausted) one extension of time to do so.
Nonetheless, in deference to the appellant’s pro se status and recognizing that defects in timely
filing of record designations and briefs are not jurisdictional, the Court will grant, sua sponte, one
additional extension of time for the appellant to perfect the appeal. Appellant is warned that
failure to timely perfect the appeal in accordance with the deadlines set forth below may result in

1 Appellant has filed additional papers since the Court’s October 24, 2017 Order, including a Notice of Interlocutory
Appeal to the Second Circuit (Dkt. #10) purporting to appeal this Court’s decisions which granted the appellant’s own
motions for an extension of time and to combine the two Notices of Appeal, correspondence asking the District Court
to forward various items to the Second Circuit (Dkt. #11, #13), and a motion to stay the underlying Bankruptcy
proceedings in order to allow the appellant more time to sell certain properties (Dkt. #14). None of these items
satisfies the appellant’s duty to perfect his appeal, explains his failure to do so, or includes a request for more time to
comply with his obligations to file a designation of record or a brief.

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dismissal of the appeal for failure to prosecute, and/or an affirmance of the decision appealedfrom, without any further input from the appellant.
CONCLUSION
Debtor/Appellant, James I. Wynn, Sr., is directed to perfect his appeal within twenty (20)
days of entry of this Order. This includes designating the Record on Appeal, providing transcripts
of court proceedings, and filing a brief, in conformance with Rules 8009, 8010, 8014 and 8015 of
the Federal Rules of Bankruptcy Procedure. Failure to do so within the allotted time could
result in dismissal of the appeal and affirmance of United States Bankruptcy Judge Paul R.
Warren’s July 27, 2017 Decision and Order converting appellant’s Chapter 13 proceeding
to a Chapter 7 proceeding.

IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 2, 2018.

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