TAYLOR v. MESSMER

Filing 3

ORDER DISMISSING CASE for failure to file a brief in support of appeal in violation of Bankruptcy Rule 8009.Signed by Judge Terrence F. McVerry on 8/23/2013. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CAROLE L. TAYLOR,
Appellant,
v.
MARGARET MESSMER,
Appellee.

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MEMORANDUM OPINION AND ORDER OF COURT
This is an appeal filed by Carole L. Taylor (“Appellant”) from an Order of the
Bankruptcy Court dated May 29, 2013, which dismissed her adversary proceeding against the
above-named Appellee. Appellant filed a NOTICE OF APPEAL FROM BANKRUPTCY
COURT with this Court on July 18, 2013. (ECF No. 1). Pursuant to Bankruptcy Rule 8009,
Appellant was ordered to file a brief in support of her appeal by August 1, 2013. (ECF No. 1).
Nonetheless, Appellant has not filed a brief. Nor has she requested an extension of time in
which to do so. Accordingly, the Court is to determine whether Appellant’s appeal should be
dismissed for failure to prosecute under Bankruptcy Rule 8001(a) and Fed. R. Civ. P. 41(b).
I.

Standard of Review
Pursuant to Bankruptcy Rule 8009(a)(1), “[t]he appellant shall serve and file a brief

within 14 days after entry of the appeal on the docket pursuant to Rule 8007.” Rule 8001(a)
grants the Court the power to dismiss a case for failure to file a timely brief under Rule
8009(a)(1). See Ash Trucking Co., Inc. v. Global Indus. Tech., Inc., No. 07-1443, 2008 WL
437028, at *2-3 (W.D. Pa. Feb. 14, 2008); In re Koutoufaris, Nos. 95-204(JKF), CA.NO. 02278, 96-180, 2002 WL 1585912, at *1 (D. Del. July 18, 2002). Importantly, the Court “has the

authority to dismiss a suit sua sponte for failure to prosecute by virtue of its inherent powers and
under Federal Rule of Civil Procedure 41(b).” Azubuko v. Bell Nat’l Org., 243 Fed. Appx. 728,
729 (3d Cir. 2007) (internal citation omitted). However, prior to dismissing a case, the Court
must consider the following six factors:
1. The extent of the party's personal responsibility;
2. The prejudice to the adversary caused by the failure;
3. A history of dilatoriness;
4. Whether the conduct of the party or the attorney was willful or in bad faith;
5. The effectiveness of sanctions other than dismissal, which entails an analysis
of alternative sanctions; and
6. The meritoriousness of the claim or defense.
Ash Trucking, 2008 WL 437028, at *4 (citing Poulis v. State Farm Fire and Cas. Co.,
747 F.2d 863, 868 (3d Cir. 1984)). The Court must weigh all six factors. Emerson v.
Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). However, “[d]ismissal can be appropriate
even if some of the Poulis factors are not satisfied.” Seawright v. Williams, No. 05-576JJF, 2009 WL 1176459, *1 (D. Del. May 1, 2009) (internal quotation marks omitted).
II.

Discussion
After a thorough review, the Court finds that dismissal is an appropriate sanction in this

case. Appellant has taken no action with respect to her appeal since the filing of her Notice of
Appeal on July 18, 2013, and thus she has failed to comply with Rule 8009(a)(1) and this Court’s
order. As explained above, courts have not hesitated to dismiss cases for failure to comply with
the 14-day filing requirement. See In re Haardt, Nos. 90-7509, 90-11733S, 1991 WL 101555, at
*3 (E.D. Pa. June 7, 1991) (collecting cases).
The Court’s analysis of the Poulis factors confirms that dismissal is warranted.

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Specifically, the first, third, fourth, fifth and sixth factors all weigh strongly in favor of dismissal.
First, because Plaintiff is proceeding pro se, she “is solely responsible for prosecuting her
claim.” Seawright, 2009 WL 1176459, at *2 (citing Hoxworth v. Blinder, Robinson & Co., 980
F.2d 912, 920 (3d Cir. 1992)). She cannot pass the blame along to counsel.
With respect to the second factor, the Court finds that the prejudice to Appellee is not
overly significant but present nevertheless. Any delay by Appellant in the prosecution of her
case necessarily adversely affects the manner in which Appellee is able to prepare her case. See
Ware v. Rodale Press, Inc., 322 F.3d 218, 22-23 (3d Cir. 2003).
Third – and perhaps most importantly – Appellant has a clear history of dilatory findings
in other cases which have pended before this Court and arose out of the same bankruptcy
proceeding. In fact, on at least three prior occasions, Appellant has had appeals dismissed for
failure to comply with Bankruptcy Rule 8002, which requires the filing of a Notice of Appeal
within 14 days of the Bankruptcy Court’s decision. See ECF No. 5 in Civil Action No. 13-12
(Bissoon, J.) (dismissing appeal as untimely under Rule 8002); ECF No. 10 in Civil Action No.
12-1739 (Fischer, J.) (same); ECF No. 11 in Civil Action No. 12-1846 (Schwab, J.) (same). In
each of those cases, just as in this case, it does not appear that Appellant ever sought an
enlargement of time in which to make the requisite filings. Appellant has thus evinced a lack of
respect for the time limits imposed by the Court and has burdened the Court with a number of
inactive appeals. See Poulis, 747 F.2d at 868 (advising that “[i]f compliance [with court-ordered
time limits] is not feasible, a timely request for an extension should be made” to expedite the
process of litigation); In re Koutoufaris, 2002 WL 1585912, at *1 (explaining that failure to file
timely brief under Rule 8009 “burden[s] the court with an inactive appeal”). The Court finds this
conduct to be inexcusable.

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As to the fourth factor, the events of this case, considered along with Appellant’s history
of dilatory filings, suggest that her conduct is willful. Indeed, the Court has not received any
correspondence from Appellant regarding her case since the Notice of Appeal was filed which
could lead the Court to hold otherwise.
As to the fifth factor, alternative sanctions would not likely be effective to deter further
violations of this Court’s order. In particular, “[b]ecause Plaintiff proceeds pro se . . . it is
doubtful that monetary sanctions would be effective.” Seawright, 2009 WL 1176459, at *2
Finally, as to the sixth factor, based on the limited record, the Court cannot fully evaluate
the merits of Appellant’s appeal. The Court notes, however, that several of Appellant’s appeals
arising from the underlying bankruptcy proceeding have previously been dismissed pursuant to a
settlement agreement in which Appellant agreed that “[a]ny and all of the orders entered by the
bankruptcy court are final and non-appealable.” ECF No. 19 in Civil Action Nos. 12-752, 12753 (Cercone, J.); ECF No. 5 in Civil Action No. 13-12 (Bissoon, J.); ECF No. 11 in Civil
Action No. 12-1846 (Schwab, J.). Such would also likely be the result in this case, even if
Appellant had filed a timely brief.1
III.

Conclusion
For the all of the reasons hereinabove set forth, the appeal will be DISMISSED.
An appropriate Order follows.
McVerry, J.

1

A Motion to Dismiss another of Appellant’s appeals on the basis of the settlement agreement is
currently pending before Judge Conti. See ECF No. 8 at Civil Action No. 12-1000.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CAROLE L. TAYLOR,
Appellant,
v.
MARGARET MESSMER,
Appellee.

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) 2:13-cv-01034
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ORDER OF THE COURT
AND NOW, this 23rd day of August, 2013, for the reasons set forth in the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that the
Appellant’s appeal is DISMISSED for failure to comply with Bankruptcy Rule 8009. The Clerk
shall docket this case closed.

BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
cc:

Carole L. Taylor
1112 N. Negley Avenue
Pittsburgh, PA 15206
George E. McGrann, Esq.
Email: [e-mail]
Robert J. Williams, Esq.
Email: [e-mail]