Ruiz v. Deutsche Bank National Trust Company

Filing 5

ORDER that this case is CLOSED for failure to prosecute appeal and for failure to comply with this Court's Order. re 4 Order to Show Cause filed by Rosa Monica Ruiz. Signed by Judge Xavier Rodriguez. (wg)

Download PDF
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION In re ROSA MONICA RUIZ, Debtor, ROSA MONICA RUIZ, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, § § § § § § § § § § § § § Civil Action No. SA-16-CV-509-XR Bk. Adv. No. 15-53001-cag Appellee. ORDER On this date, the Court considered the status of this case. On May 9, 2016 Appellant/Debtor Rosa Monica Ruiz filed a notice of appeal from the bankruptcy court’s May 4, 2016 order granting Defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bankruptcy Docket no. 11. On June 6, 2016, the appeal was docketed in this Court, as well as the Transmission of Record on Appeal indicating that no designation of the record on appeal had been filed. Docket no. 1. Also on June 6, the Clerk of this Court issued a scheduling order to the parties, indicating that, “[u]nless the district court by order in a particular case directs otherwise, the filing of briefs on appeal shall be in accordance with Rule 8018 of the Federal Rules of Bankruptcy Procedure.” Docket no. 2; see FED. R. BANKR. P. 8018(a). No other scheduling order has been issued by this Court, and thus appellant’s brief was due within thirty days after entry of the appeal on the docket pursuant to Rule 8018. Accordingly, Ruiz’s brief was originally due on July 6, 2016. On July 17, Ruiz filed a motion to extend time to file her brief 1 until August 5, 2016, which the Court granted. Docket no. 3. Ruiz did not file her brief or seek another extension of time to do so. In addition, Rule 8009 states that within fourteen days of the notice of appeal, the appellant shall file with the clerk and serve on the appellee a designation of items to be included in the record on appeal and statement of the issues to be presented. Ruiz failed to designate any items to be included in the record on appeal. The burden of creating an adequate record rests with the appellant, who may not urge an issue on appeal if she has failed to provide the appellate court with the requisite record excerpts. In re CPDC, Inc., 221 F.3d 693, 698 (5th Cir. 2000). Likewise, the purpose of the statement of issues is “principally to identify the portions of the testimony below that should be included in the record on appeal.” Id. Ruiz has not satisfied these requirements, nor has she sought an extension of time to do so. In light of Ruiz’s failures, this Court issued a show cause order on September 30, 2016, directing her to show cause by October 14 as to why the Court should not dismiss her appeal for failure to file a statement of the issues, failure to designate the necessary items for the record on appeal, and failure to file an appellate brief. Docket no. 4. Ruiz did not respond. Rule 8003 states that an appellant’s failure to take any step other than timely filing 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. A district court may exercise its discretion to dismiss an appeal under appropriate circumstances. In re CPDC, 221 F.3d 693, 699 (5th Cir. 2000). Specifically, a district court has discretion to dismiss an action if the appellant has failed to take steps to prosecute his appeal. See Matter of Braniff Airways, Inc., 774 F.2d 1303, 1304–05 (5th Cir. 1985). Ruiz has not done anything to prosecute her appeal other than filing a notice of it. She has not taken the required steps of filing her brief, developing the appellate record, and providing a 2 statement of the issues. Further, she did not comply with this Court’s order to justify these failures. Accordingly, the Court exercises its discretion to dismiss this case for failure to prosecute this appeal. It is so ORDERED. SIGNED this 18th day of October, 2016. XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?