Raintree Healthcare of Forsyth, LLC v. AA Holdings-Winston-Salem, LLC

Filing 10

ORDER DISMISSING CASE WITHOUT PREJUDICE for failure to comply with Rule 8009(b) or the Orders of the United States Bankruptcy Court. Signed by District Judge Max O. Cogburn, Jr on 2/7/2018. (jaw) Modified text on 2/7/2018 (jaw).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00654-MOC
RAINTREE HEALTHCARE OF FORSYTH,
LLC DOING BUSINESS ASINTEGRITY
ASSISTED LIVING,
Appellant,
Vs.
AA HOLDINGS-WINSTON-SALEM, LLC,

Appellee.

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ORDER OF DISMISSAL

THIS MATTER is before the Court on Certification from the Clerk of the Bankruptcy
Court that Appellant has failed to file the designation of the items to be included in the record on
appeal and a statement of the issues to be presented to this court as required by Fed. R. Bankr. P.
8009(b). Review of such certification reveals that Appellant has already been provided with
written notice of such deficiency by the Bankruptcy Clerk, given ten days to comply, and has failed
to heed such notice.
The history of the proceedings below was outlined in Appellees’ Response (#3) to
Appellant’s first Motion for Extension (#2). In that Response, Appellee argued that the Court
should not grant the Appellant an extension because Appellant was “unequivocally attempting to
cause further delay and is simply failing to properly prosecute the appeal.” Response (#3) at ¶ 10.
Despite that warning, this Court granted the first extension finding that “the undersigned can find
no record of delay or frivolous filings by counsel for appellant in this Court” and that it would treat

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“the motion as one made by any attorney in good standing with the Bar of this Court, which carries
with it a presumption of good faith.” Order (#4) at 2.
Appellant thereafter sought a second extension, representing therein that “it had not
received a transcript of the proceedings below” and needed additional time to prepare the record
and file its statement of issues on appeal. Motion (#5). Appellee again responded, pointing out
that the reason Appellant had not received the transcript was because Appellant had never ordered
the transcript. Response (#6). The omission of this salient fact resulted in the Court denying the
second Motion for Extension and setting a deadline of January 10, 2018, for Appellant to prepare
the record on appeal and an appropriate statement of the issues on appeal and file such with this
Court. Appellant filed its Statement of Issues Appeals on January 10, 2018. The record on appeal
has not been filed with this Court or the Bankruptcy Court. On February 6, 2018, the Bankruptcy
Clerk advised this Court that as of such date, Appellant had neither ordered the transcript as
required by Rule 8009(b) or tendered the transcript despite having been provided written notice
and given ten business days to comply.
At this point, the Court determines that Appellant has failed to properly prosecute this
action. Further, the Court finds that counsel for Appellant’s omission of the fact that he not
ordered the transcript when he represented that he not received the transcript is a material
omission: had counsel for Appellee not pointed out that salient missing fact, the Court would have
granted the extension. The Court will, therefore, dismiss the appeal without prejudice.
Counsel for Appellant now has a track record of dilatory conduct with the United States
Court for the Western District of North Carolina. A closer review of the docket has been initiated
and it reveals that Appellant’s counsel has had at least one other incident resulting in the issuance

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of a Show Cause Order (#173) by the Honorable Frank D. Whitney, Chief United States District
Judge. See Rudolph v. Bacon Independent Living, LLC, 3:11cv00617 (W.D.N.C. 2012).

ORDER
IT IS, THEREFORE, ORDERED that this appeal is DISMISSED WITHOUT
PREJUDICE for failure to comply with Rule 8009(b) or the Orders of the United States
Bankruptcy Court.
Signed: February 7, 2018

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