Linn v. Cooper et al
ORDER DISMISSING CASE for failure to prosecute.. Signed by District Judge Max O. Cogburn, Jr on 8/7/2017. (Pro se litigant served by US Mail.)(chh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:17-cv-00062-MOC
In re: Shelly Linn Wilder Overby, Debtor.
SHELLY LINN, Executrix of Shelly-Linn-Wilder
LANGDON M. COOPER, TRUSTEE, et al.,
THIS MATTER is before the Court on its prior Order (#3), which required Appellant to
either file her designation of record and a statement of the issues to be presented or a statement of
good cause explaining her failure to do so, all by July 14, 2017. Appellant has filed nothing. This
Court now considers whether Appellant's failure to comply with Federal Rule of Bankruptcy
Procedure 8009 and this Court’s earlier Order warrants dismissal of the appeal under Federal Rule
of Bankruptcy Procedure 8003(a).
Federal Rule of Bankruptcy Procedure 8009(a)(1) requires an appellant to “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 fourteen (14) days after the
appellant files his notice of appeal. Rule 8009(b)(1) also requires the appellant to order, within
fourteen (14) days of filing the notice of appeal, “a transcript of such parts of the proceedings not
already on file as the appellant considers necessary for the appeal, and file a copy of the order with
the bankruptcy clerk; or file with the bankruptcy clerk a certificate stating that the appellant is not
ordering a transcript.” Rule 8003(a)(2) states that a “failure to take any step other than the timely
filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the
district court or BAP to act as it considers appropriate, including dismissing the appeal.” Therefore,
“[i]f an appellant violates one of the rules of bankruptcy procedure, the district court may dismiss
the appeal.” In re Weiss, 111 F.3d 1159, 1173 (4th Cir. 1997).
The Fourth Circuit has observed that “the sanction of dismissal for failure to comply with
a non-jurisdictional, procedural guideline ... [is] a harsh sanction which a district court must not
impose lightly.” In re Serra Builders, Inc., 970 F.2d 1309, 1311 (4th Cir. 1992). However, an
appellant's negligent failure to comply with procedural requirements may lead to dismissal of the
entire appeal. Id. Here, the Clerk of the Bankruptcy Court has provided appellant with notice that
went unheeded and this Court has provided appellant with notice, an opportunity to make the
required filings or explain her earlier failure, and advised her of the consequences of failing to
respond. Based on the lack of any response, the Court concludes that appellant has abandoned this
appeal and will now dismiss the appeal for failure to prosecute.
IT IS, THEREFORE, ORDERED that this Appeal is DISMISSED.
The Clerk of Court shall send a copy of this Order to the Bankruptcy Clerk of Court,
attention Deputy Truesdale.
Signed: August 7, 2017
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