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

Filing 8

ORDER re 3 Bankruptcy Clerk Memorandum. Appellant shall be permitted to proceed with the case and have his arguments heard on the merits of the case. Signed by District Judge Max O. Cogburn, Jr on 6/10/2021. (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.R. KING CONSTRUCTION, LLC
Appellant,
Vs.
Y2 YOGA COTSWOLD, LLC ET AL.,
Appellees.

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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 had not been ordered by Appellant
pursuant to Federal Bankruptcy Rule 8009(b). The Court issued an order instructing Appellant to
order a transcript pursuant to Federal Bankruptcy Rule 8009(b) and submit a statement to this Court
explaining his initial failure to do so by May 21, 2021. (#4). Appellant complied with that order
and submitted a statement explaining why he failed to order a transcript on time. (#6). The 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
filing of a notice of appeal does not affect the validity of the appeal, but is grounds 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.
Here, Appellant explained in his statement that the transcripts were ordered by Appellant
on April 5, 2021, and they were filed with the Bankruptcy Court in the base bankruptcy case 1831635 on April 23, 2021, Docket Nos. 323, 324, 325 & 326. Appellant is not sure why the
transcripts were filed in the base case and not in the Adversary Proceeding case No. 19-3047 where
the order that is being appealed was entered.
Furthermore, Appellant asserts that he failed to order a transcript as provided by Rule
8009(b)(1) because he was out of the office caring for a sick family member. Appellant contends
that he was distracted by his family member’s serious health issues and as a result improperly
calendared the deadline for ordering the transcript. Additionally, Appellant asserts that he is a solo
practitioner and was short-staffed as a result his paralegal being forced to quarantine due to her
exposure to COVID 19. Appellant contends that as a solo practitioner he relies heavily on his

support staff and, as a result of COVID 19, he has been forced to operate short-staffed. Appellant
avers that in normal times he timely files his pleadings and rarely misses deadlines but, due to the
COVID 19 pandemic, his law practice has struggled to remain operating efficiently due to staff
illnesses resulting in staff being out of the office. Appellant further avers that he properly and
timely filed the notice of appeal, statement of issues and record on appeal; however, due to an
oversight, he failed to properly calendar and timely file the transcript request.
Based on Appellant’s explanation, the Court will not dismiss this case. It is clear that
Appellant did not file the appeal in bad faith, nor was he negligent, as Appellant properly and
timely filed the notice of appeal, statement of issues, and record. See In re Weiss, 111 F.3d at 1173.
The Court also holds that any delay was non-prejudicial to the parties, as the transcript has been
ordered and delivered to the Court. See id. Dismissal of the appeal would be a very harsh sanction,
but the Court admonishes Appellant with a stern warning to follow all deadlines in this case
moving forward. See In re Serra Builders, Inc., 970 F.2d at 1311. Furthermore, the Court believes
it would be in the interest of justice to allow Appellant to have his Appeal heard on the merits of
the case.
ORDER
IT IS, THEREFORE, ORDERED that Appellant shall be permitted to proceed with the
case and have his arguments heard on the merits of the case.

Signed: June 10, 2021