V.R. King Construction, LLC v. US Bankruptcy Administrator et al

Filing 4

ORDER that Appellant shall order a transcript pursuant to Federal Bankruptcy Rule 8009(b) and submit a statement to this Court explaining her initial failure to do so. Both the order and the statement shall be due by May 21, 2021. Signed by District Judge Max O. Cogburn, Jr on 5/11/2021. (Pro se litigant served by US Mail.)(ams)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:21-cv-00094-MOC
In re: V.R. King Construction, LLC v. Y2 Yoga Cotswold, LLC et. al
V.R. KING CONSTRUCTION, LLC

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Appellant,
Vs.
Y2 YOGA COTSWOLD, LLC ET. AL..,
Appellees.

ORDER

THIS MATTER is before the Court on a Memorandum to the District Court from the
Bankruptcy Clerk (#3), notifying the court that a transcript has not been ordered by Appellant
pursuant to Federal Bankruptcy Rule 8009(b). This Court now considers whether Appellant's
failure to comply with Federal Rule of Bankruptcy Procedure 8009 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
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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).
Before a district court may dismiss an appeal pursuant to Rule 8003(a), “it must take at
least one of the following steps: 1) make a finding of bad faith or negligence; 2) give the appellant
notice and an opportunity to explain the delay; 3) consider whether the delay had any possible
prejudicial effect on the other parties; or 4) indicate that it considered the impact of the sanction
and available alternatives.” Id. 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.
The Court will, therefore, provide appellant with an opportunity to make the required order
of a transcript and explain her prior failure prior to consideration of dismissal. Appellant is
cautioned that failure to respond as instructed in this Order will result in dismissal of the appeal.
ORDER
IT IS, THEREFORE, ORDERED that Appellant shall order a transcript pursuant to
Federal Bankruptcy Rule 8009(b) and submit a statement to this Court explaining her initial failure
to do so. Both the order and the statement shall be due by May 21, 2021.

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Signed: May 11, 2021

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