Hock v. U.S. Department of Education

Filing 8

ORDER that the Court's 11/17/2021 (Doc. No. 5) is VACATED and this case is REOPENED to continue in due course. The Court FURTHER ORDERS that Appellee U.S. Department of Education shall have fourteen (14) days from this Or der, up to and including 12/14/2021, to file a designation of additional items to be included in the record, as set forth in Rule 8009(a)(2) of the Federal Rules of Bankruptcy Procedure. Signed by District Judge Frank D. Whitney on 11/30/2021. (Pro se litigant served by US Mail.)(brl)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:21-CV-00134-FDW
LYNN KAREN HOCK,
Appellant,
vs.
U.S. DEPARTMENT OF EDUCATION,
Appellee.

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ORDER

THIS MATTER is before the Court sua sponte as to the status of this case. On October 28,
2021, the Court entered an Order requiring Appellant Lynn Karen Hock to show cause why her
appeal should not be dismissed for failure to prosecute. (Doc. No. 4). Appellant’s response was
due by November 16, 2021. Id. On November 17, 2021, without receiving a response from
Appellant, the Court entered an Order dismissing the case without prejudice for Appellant’s failure
to prosecute. (Doc. No. 5). On November 18, 2021, the Clerk of Court received Appellant’s
Response to the Court’s Order to Show Cause, which included her designation of items to be
included in the record on appeal and statement of issues to be presented. (Doc. No. 6). The
envelope received confirms Appellant mailed her Response via UPS on November 12, 2021. (Doc.
No. 6-3). The same day, prior to seeing Appellant’s Response, the Clerk of Court entered judgment
and terminated this case in accordance with this Court’s November 17, 2021 Order (Doc. No. 5).
As an initial matter, the Court recognizes Rule 8009(a) of the Federal Rules of Bankruptcy
Procedure requires “[t]he 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 14 days after… the appellant’s notice of appeal as of right becomes

effective…” Clearly, Plaintiff has failed to follow the procedural requirements of the bankruptcy
rules. It is well settled that “an appellant’s 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 such action as
the district court… deems appropriate, which may include dismissal of the appeal.” Barake v.
Hill, 124 F. App’x. 758, 759 (4th Cir. 2005) (quoting Fed. R. Bankr. P. 8001(a)). However, in
“keeping in mind that dismissal is a ‘harsh sanction which the district court must not impose
lightly,’” and the fact that Defendant has not been prejudiced by Plaintiff’s procedural failures, the
Court uses its discretion to reopen the case for further proceedings on the merits. Id. (quoting In
re Sierra Builders, Inc., 970 F.2d 1309, 1311 (4th Cir. 1992). Notwithstanding the foregoing, the
Court cautions Appellant that she must strictly comply with the Federal Rules of Bankruptcy
Procedure, as her continued failure to comply with such rules may result in the immediate
dismissal of her case.
IT IS THEREFORE ORDERED that the Court’s November 17, 2021 Order (Doc. No. 5)
is VACATED, and this case is REOPENED to continue in due course.
As the Clerk of Court kindly forwarded Appellant’s Response (Doc. No. 6) to the
Bankruptcy Clerk on November 18, 2021, the Court FURTHER ORDERS that Appellee U.S.
Department of Education shall have fourteen (14) days from this Order, up to and including
December 14, 2021, to file a designation of additional items to be included in the record, as
set forth in Rule 8009(a)(2) of the Federal Rules of Bankruptcy Procedure.
IT IS SO ORDERED.

Signed: November 30, 2021