Johnston v. Johnston et al
OPINION AND ORDER Denying 6 Motion for Extension of Time to Perfect Record and File Brief Based Upon Pro Se Excusable Neglect and/or Motion to Stay Case Pending Resolution of Vermont Supreme Court and Rutland Superior Court Probate Review. This appeal is hereby dismissed. Signed by Chief Judge Christina Reiss on 8/27/2015. (pac)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
MARJORIE W. JOHNSTON,
. OCWEN LOAN SERVICING, LLC,
WELLS FARGO BANK, N.A., and
JAN M. SENSENICH,
20\5 AUG 21 PH 4: 22
By- - - r-R"
OEPUTY CLc. '\t\
Case No.2: 14-cv-260
OPINION AND ORDER DENYING MOTION FOR EXTENSION OF TIME TO
PERFECT RECORD AND FILE BRIEF BASED UPON PROSE EXCUSABLE
NEGLECT AND/OR MOTION TO STAY CASE PENDING RESOLUTION OF
VERMONT SUPREME COURT AND RUTLAND SUPERIOR COURT
Pending before the court is a motion for an extension of time to perfect the record
on appeal and submit a brief, or for a stay, filed by Appellant Kamberleigh Johnston
("Appellant"). Appellant is the son of Debtor Marjorie W. Johnston ("Debtor").
Debtor is represented by Kathleen Walls, Esq. Creditor Wells Fargo Bank, N.A.
("Wells Fargo") is represented by Grant C. Rees, Esq. Creditor Ocwen Loan Servicing,
LLC, is represented by Sarah B. Gullon, Esq. The Chapter 13 Standing Trustee is Jan M.
Sensenich. Appellant is self-represented. None of Appellees submitted a response to
Appellant's motion or have otherwise participated to date in this appeal.
Proceedings Before the Bankruptcy Court.
On July 28, 2014, Debtor filed a Chapter 13 proceeding. On August 18, 2014,
Debtor filed a notice of voluntary dismissal of her case, pursuant to 11 U.S.C. § 1307(b),
on the grounds that her estranged husband had fallen ill and that she needed to travel to
Florida to attend to him and other issues. (Docs. 2-2 & 2-4.) Wells Fargo objected to
dismissal (Doc. 2-5), arguing that Debtor originally filed her Chapter 13 proceeding two
days prior to a scheduled foreclosure sale of two commercial properties in order to delay
those sales and thus Debtor had not filed in good faith. Wells Fargo also argued that
Debtor had a practice of filing Chapter 13 proceedings to avoid foreclosure sales. On this
basis, Wells Fargo requested that the Bankruptcy Court impose a one-year ban on
Debtor's right to file a subsequent bankruptcy petition ifDebtor's case was dismissed.
On September 16, 2014, Debtor filed a response to Wells Fargo's objection and
request for a one-year filing ban. (Doc. 2-7 .) Debtor maintained that she filed her
Chapter 13 proceeding in good faith and that she sought voluntary dismissal based on
post-petition factors that were beyond her control.
On September 29, 2014, Appellant objected to dismissal of Debtor's Chapter 13
case as a "non-hostile creditor/interested person" on the basis that he was a bona fide
creditor. Appellant requested that the Bankruptcy Court deny Debtor's request and force
Debtor to proceed with her Chapter 13 case and that any dismissal be deferred until the
Bankruptcy Court resolved certain issues involving Debtor's creditors. 1 Wells Fargo
objected to Appellant's opposition, arguing it was untimely filed and there was "no basis"
for him to "successfully oppose Debtor's motion to dismiss her bankruptcy." (Doc. 2-9
On October 6, 2014, the Bankruptcy Court issued a written order, memorializing
the court's earlier ruling at a hearing on Debtor's request for dismissal. (Doc. 2-11.) The
Appellant's objection is not part of the record on appeal. A review of Wells Fargo's objection
to it, however, indicates that Appellant sought "'a stay on all other creditors,"' sought to initiate
an adversary proceeding against the other creditors, and requested that the Bankruptcy Court
"address issues which are ... barriers to confirmation of a plan including but not limited to
striking the 1-4 riders in some of the mortgage[ s] as unenforceable, declaring that span 540-17014255 is 'one homestead,' [and] declaring that escrow accounts cannot be created until a bank
can demonstrate that a bona fide 'default' occurred regarding the property taxes in Vermont[.]"
(Doc. 2-9 at 2-3.) Wells Fargo argued "such claims are advanced in an effort tore-litigate claims
[Appellant] unsuccessfully attempted to advance in State court on behalf of Debtor that the
contiguous properties [D]ebtor owns in Rutland constitute, in total, her principal residence." !d.
Bankruptcy Court found "nothing in the record to indicate that this particular case was
filed in bad faith or that the motion to dismiss was filed in bad faith" and thus Debtor had
an "absolute right" to immediate dismissal of her Chapter 13 case. I d. at 2. The
Bankruptcy Court overruled Appellant's objection to dismissal, denied Wells Fargo's
request for a one-year filing ban, and granted Debtor's motion to dismiss.
Thereafter, Appellant moved for reconsideration of the Bankruptcy Court's order
dismissing Debtor's case (Doc. 2-12), arguing that there was no evidence of Debtor's bad
faith but rather that Wells Fargo acted in bad faith. He requested that Wells Fargo's
objection to dismissal be stricken from the record because there was no support for a oneyear filing ban, and he requested that Wells Fargo provide an accounting of billable
The Bankruptcy Court denied Appellant's motion for reconsideration on the basis
that it had "acted appropriately in ( 1) considering the allegations of bad faith in this case
and Wells Fargo's request for a one-year bar, and (2) having found no substance to the
allegations, promptly granting the Debtor's motion to dismiss at that time." (Doc. 2-13 at
2.) The Bankruptcy Court also denied Appellant's other requests because Wells Fargo
had not sought legal fees in the case and because "the fact that a pleading may not
espouse the view ultimately adopted by the court is not an appropriate grounds to strike
the pleading." ld. at 2-3.
Appellant then filed a motion to vacate the Bankruptcy Court's order denying his
motion for reconsideration. (Doc. 2-14.) Appellant maintained that the Bankruptcy
Court should have granted his request to strike Wells Fargo's objections from the record
as the denial to do so "le[ft] 'inaccurate information' filed by [the attorney for Wells
Fargo] in the official record and create[ d) 'future' prejudice for the [D]ebtor." ld. at 2.
He requested an evidentiary hearing, arguing that the Bankruptcy Court should allow him
to question "other creditors on issues directly relevant to the 1 year ban and related
issues." ld. On the same day, Appellant filed a request for permission to file an
interlocutory appeal. (Doc. 2-15.)
The Bankruptcy Court denied Appellant's motion to vacate, finding that Appellant
raised the same arguments in that motion as he advanced in support of his objection to
dismissal and his motion for reconsideration. (Doc. 2-16.) The Bankruptcy Court also
denied, as moot, Appellant's request for permission to file an interlocutory appeal
because the Bankruptcy Court's order dismissing Debtor's case was a final order
pursuant to 28 U.S.C. § 158(a)(l). The Bankruptcy Court, however, subsequently
granted Appellant's request for an extension of time to file a notice of appeal (Doc. 2-17),
finding Appellant had demonstrated excusable neglect for his untimely filing of a notice
of appeal (Doc. 2-18). The Bankruptcy Court ordered Appellant's notice of appeal to be
treated as timely filed as of December 2, 2014. (Doc. 2-20 at 4.)
Appeal Before This Court.
On December 9, 2014, the court received the record on appeal from the
Bankruptcy Court (Doc. 1), and on January 21, 2015, the court received a supplemental
record on appeal from the Bankruptcy Court (Doc. 2). Pursuant to Rule 8018 of the
Federal Rules of Bankruptcy Procedure, Appellant was required to serve and file his brief
within thirty days "after the docketing of notice that the record has been transmitted or is
available electronically." Fed. R. Bankr. P. 8018(a)(l). Appellant did not file his brief
within the time accorded under the Rules.
On April28, 2015, the court issued an Order to Show Cause On or Before June 1,
2015 that directed Appellant to address why the pending appeal should not be dismissed
for his failure to comply with the Federal Rules of Bankruptcy Procedure, including the
failure to timely file his brief. (Doc. 3.) The court informed Appellant of the potential
for dismissal for continued delay.
On June 1, 2015, Appellant responded to the Order to Show Cause by moving for
an extension of time to file his brief and requesting sixty days in light of his selfrepresented status. (Doc. 4.) The court granted Appellant's motion and ordered that
Appellant had until August 24, 2015 to comply with the court's Order. (Doc. 5.) In
doing so, the court ordered that "[fJurther extensions are unlikely absent compelling
circumstances" and that "[t]he parties are expected to address the issue of Appellant's
standing to bring this appeal." !d.
On August 24,2015, Appellant filed the pending motion for an extension of time
to file his brief or for a stay of this appeal. (Doc. 6.) Appellant asserts that the previous
sixty days was not sufficient to file his brief because he is self-represented with limited
experience in federal court and because there are state court cases regarding Debtor's
properties that remain pending before the Vermont Supreme Court and the Rutland
Superior Court, which he argues must be completed before he pursues this appeal.
Conclusions of Law and Analysis.
The Federal Rules of Bankruptcy Procedure allow the court to excuse Appellant's
failure to timely file his appellate brief "where the failure to act was the result of
excusable neglect," Fed. R. Bankr. P. 9006(b)(l), which "tak[es] account of all relevant
circumstances surrounding" the failure to comply with the Rules. Pioneer Inv. Servs. Co.
v. BrunswickAssocs. Ltd. P'ship, 507 U.S. 380,395 (1993); see In re Lynch, 430 F.3d
600, 605 (2d Cir. 2005) (holding that "Rule 9006(b)(l) squarely controls the question [of]
under what circumstances should an action or filing be permitted in a bankruptcy
proceeding, notwithstanding the party's failure to comply with a deadline"; that "the
action should be permitted where the untimeliness is the result of excusable neglect, as
that standard has been developed by Pioneer"; and that where "no excusable neglect was
shown, the late filing is not permitted").
The "'relevant circumstances'" to be considered include the length of Appellant's
delay and its potential impact on judicial proceedings; the reason for his delay, including
whether it was within his reasonable control; and whether Appellant has acted in good
faith, as well as the danger of prejudice to the other parties involved in this appeal. In re
Lynch, 430 F.3d at 603 (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395). While prose
litigants "are generally afforded some latitude, they are nonetheless required to learn and
comply with procedural rules." In re Truong, 388 B.R. 43, 45 (S.D.N.Y. 2008), a.ff'd,
327 F. App'x 260 (2d Cir. 2009) (affirming district court's finding that prose appellant
failed to show excusable neglect for failure to file brief in a bankruptcy appeal); see also
Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995) (directing that "while a prose litigant's
pleadings must be construed liberally, ... prose litigants generally are required to inform
themselves regarding procedural rules and to comply with them") (citations omitted)).
Whether to Grant Appellant's Request for an Extension.
Appellant seeks an unspecified "enlargement of time" to file his brief and perfect
the record. (Doc. 6 at 2.) At this juncture, Appellant has delayed filing his brief for
approximately six months, during which time the court excused Appellant's initial failure
to comply with the deadline for his brief and granted Appellant a generous sixty-day
extension. The court included in its June 23, 2015 Order explicit instructions that further
extensions were not likely to be granted absent "compelling circumstances." (Doc. 5.)
On the date Appellant's brief was due, Appellant filed the pending motion seeking
another extension of time to file his brief. He points out that there are pending state court
cases, including two appeals before the Vermont Supreme Court (with a third expected to
be filed) as well as a foreclosure action before the Rutland Superior Court. He represents
that the latter involves an issue of"the role of the US Bankr[up]tcy Court and what
constitutes a final judgment." (Doc. 6 at 1.) He also asserts that it is "unclear of how
much overlap exists by the federal Court [which] has a duty to make sure all relief is
provided even if not explicitly asked for in the pleadings." /d. Appellant provides no
other explanation of how the pending state court cases affect the determination of
whether the Bankruptcy Court erred in dismissing Debtor's Chapter 13 proceeding and in
denying Appellant's other requests for relief. Appellant further provides no explanation
of how those proceedings impacted his ability to prepare a brief in this appeal. The
length of delay, the reason for the delay, and whether the delay was within Appellant's
control thus all weigh against excusing Appellant's continued non-compliance with the
Federal Rules of Bankruptcy Procedure.
In examining the danger of prejudice to the other parties involved in this appeal,
the court notes that Appellant appeals from a final order of the Bankruptcy Court granting
Debtor's voluntary request for dismissal pursuant to 11 U.S.C. § 1307(b). Section
1307(b) provides: "On request of the debtor at any time, if the case has not been
converted under section 706, 1112, or 1208 of this title, the court shall dismiss a case
under this chapter. Any waiver of the right to dismiss under this subsection is
unenforceable." 11 U.S.C. § 1307(b). Although Appellant is correct there is a circuit
split regarding whether a debtor's right to dismissal under§ 1307(b) is absolute, the
Second Circuit has unequivocally held that "a debtor has an absolute right to dismiss a
Chapter 13 petition under§ 1307(b), subject only to the limitation explicitly stated in that
provision" that dismissal must proceed an order for conversion. In re Barbieri, 199 F .3d
616, 619 (2d Cir. 1999). Notwithstanding Appellant's insistence that the Supreme Court
must resolve this dispute among the circuit courts, the Bankruptcy Court correctly
applied the law of the Second Circuit that a debtor has an absolute right of dismissal
pursuant to§ 1307(b).
Appellant also challenges a debtor's absolute right to dismissal in light of the
Supreme Court's decision in Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365
(2007), which addressed a debtor's right to convert a Chapter 7 proceeding to a Chapter
11, 12, or 13 proceeding pursuant to 11 U.S.C. § 706(a). Section 706(a), which governs
Chapter 7 proceedings, contains similar language to 11 U.S.C. § 1307(a), which governs
Chapter 13 proceedings, that a debtor "may convert a case[.]" Compare 11 U.S.C.
§ 706(a), with 11 U.S.C. § 1307(a). In Marrama, the Supreme Court rejected the
debtor's position that "he had an absolute right to convert his case from Chapter 7 to
Chapter 13 under the plain language of§ 706(a)" and held that the debtor "forfeited his
right to proceed under Chapter 13" when the debtor sought conversion in bad faith.
Marrama, 549 U.S. at 370-71.
While Appellant challenges Debtor's right to voluntary dismissal in light of
Marrama, Marrama does not bar or otherwise undermine Debtor's request for dismissal
for several reasons. First, Marrama addressed a conversion request in a Chapter 7
proceeding pursuant§ 706(a), as opposed to in a Chapter 13 proceeding pursuant to
§ 1307(a). Second, assuming that Marrama would apply to a Chapter 13 proceeding
because both § 706(a) and § 1307(a) contain similar language that provides that a debtor
"may" seek to convert a case, the language of§ 1307(b) that a court "shall dismiss a
case" upon the debtor's request, see§ 1307(b), indicates its "mandatory nature,"
notwithstanding a debtor's bad faith. In re Barbieri, 199 F.3d at 619 ("The term 'shall,'
as the Supreme Court has reminded us, generally is mandatory and leaves no room for the
exercise of discretion by the trial court.") (citing Anderson v. Yungkau, 329 U.S. 482, 485
(194 7)). Third, addressing a debtor's absolute right to dismissal post-Marrama, at least
one district court in the Second Circuit noted that Barbieri has not been overruled and
that it was therefore "bound by the holding in Barbieri that the right of voluntary
dismissal under§ 1307(b) is absolute." In re Proce/, 467 B.R. 297, 305, 308 (S.D.N.Y.
2012). Finally, even Marrama directs that a debtor forfeits the absolute right to dismissal
for bad faith conduct, the Bankruptcy Court found no evidence of bad faith conduct.
Throughout this case, Appellant has consistently maintained that Debtor acted in good
faith and has not altered that position in this appeal. 2
Because the Bankruptcy Court properly dismissed Debtor's Chapter 13 case upon
Debtor's request and after determining Debtor acted in good faith,' granting Appellant's
request for an indefinite extension or stay would prejudice Debtor, as well as the other
creditors in this case, all of whom did not appeal the Bankruptcy Court's dismissal order.
For these reasons, the court finds that Appellant has not met his burden of
demonstrating that an extension of time to file his brief is warranted, nor has Appellant
demonstrated that the relevant circumstances establish excusable neglect for his failure to
file his brief in accordance with the Federal Rules of Bankruptcy Procedure. See United
States v. O'Connor, 650 F.3d 839, 854 (2d Cir. 2011) (noting that the burden of
demonstrating that a continuance is necessary is on the party requesting it and that
"whether to grant a continuance is a matter traditionally within the discretion of the trial
Appellant has submitted an order from a Vermont Probate Court which purports to authorize
Appellant to act on Debtor's behalf in the Bankruptcy Court. (See Doc. 4-1 at 2.) As Appellant
designates himself as Debtor's creditor in this bankruptcy case, it is not clear how he can
overcome the conflict of interest inherent in these dual roles. See 14 V.S.A. § 3071(c) ("The
guardian shall always serve the interests of the person under guardianship and shall bring any
potential conflicts of interest to the attention of the court."). Appellant also has not been
substituted, or sought to be substituted, as the Debtor.
judge") (internal quotation marks omitted). Appellant's request for an extension of time
to file his brief is DENIED.
Whether to Grant Appellant's Requests for a Stay.
Appellant's pending motion seeks "a stay on all creditors to [the Chapter 13
proceeding] that could have a negative impact on the estate," including "any creditor
actions related directly or indirectly to" that proceeding. 3 (Doc. 6 at 1-2.) To seek a stay
before the district court for "relief'' that includes a stay of a judgment, order, or decree, or
the suspension or continuation of proceedings, Appellant must provide "the reasons for
granting the relief requested and the facts relied upon[.]" Fed. R. Bankr. P.
8007(b)(3)(A). Appellant offers no explanation of why a stay of"creditor actions" is
necessary, particularly because none of the creditors of Debtor's estate appealed the
dismissal order and only one creditor in addition to Appellant, Wells Fargo, opposed
Debtor's request for dismissal.
Appellant also seeks "a stay in the instant case until the Vermont Supreme Court
and Rutland Superior Court [probate] review are completed due to overlapping
[jurisdictional] issues." (Doc. 6 at 2.) Generally, '"the rule is that the pendency of an
action in the state court is no bar to proceedings concerning the same matter in the
Federal court having jurisdiction[,]'" and this court has an "'unflagging obligation'" to
exercise jurisdiction when it exists. Woodford v. Cmty. Action Agency of Greene Cty.,
Inc., 239 F.3d 517, 522 (2d Cir. 2001) (quoting Colo. River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976)). "The decision as to whether to stay a federal
action on the ground that there is a related action pending in a state court is committed to
the sound discretion of the district court," and turns also on "the matter of the state
court's jurisdiction to resolve the controversy." United States v. Pikna, 880 F .2d 1578,
"Ordinarily, a party must move first in the bankruptcy court" for "relief' that includes a stay of
a judgment, order, or decree, or the suspension or continuation of proceedings, and if the party
has not done so but later seeks a stay in the district court, the party must demonstrate that
"moving first in the bankruptcy court would be impracticable." Fed. R. Bankr. P. 8007(a)(l),
(b )(2)(A). It appears that Appe11ant unsuccessful1y requested that the Bankruptcy Court '"grant
[him] a stay on all other creditors in the instant case."' (Doc. 2-9 at 2-3.)
1582 (2d Cir. 1989) (using the same factors for evaluating the propriety of a stay as for
abstention) (citing Moses H. Cone Mem 'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16
(1983); Colo. River Water Conservation Dist., 424 U.S. at 813-17 ). "[T]he presumption
is in favor of the federal court's retaining jurisdiction, not yielding it[.]" !d. (citing, in
part, Moses H. Cone Mem 'I Hosp., 460 U.S. at 28 (noting "a stay is as much a refusal to
exercise federal jurisdiction as a dismissal"). A stay in a federal case is thus warranted in
'"exceptional circumstances'" based on the "'clearest of justifications."' Woodford, 239
F.3d at 523 (quoting Moses H. Cone Mem 'I Hosp., 460 U.S. at 25-26).
In this case, the court has no factual basis for concluding that this bankruptcy
appeal overlaps with pending state court proceedings. See Nat'! Union Fire Ins. Co. of
Pittsburgh, Pa. v. Karp, 108 F .3d 17, 22 (2d Cir. 1997) (explaining state and federal
proceedings are "essentially the same [if] there is an identity of parties, and the issues and
relief sought are the same"). To the extent that there is any overlap in the matters before
the state and federal courts, the state foreclosure proceedings are properly committed to
the state courts to resolve. See Pikna, 880 F.2d at 1582 (directing a district court
considering "whether or not to grant" a stay to evaluate "whether federal or state law
provides the rule of decision"); see also Vt. R. Civ. P. 80.1 (establishing the proceedings
under Vermont law for a civil action for foreclosure). In contrast, this appeal turns
exclusively on issues of federal law. See Woodford, 239 F.3d at 523 (explaining that
issues of federal law are a "'major consideration"' for determining to retain jurisdiction)
(quoting Moses H. Cone Mem 'l Hosp., 460 U.S. at 26).
Against this backdrop, Appellant's request for an indefinite stay of this appeal
while state court cases are pending is unwarranted and contrary to the court's obligation
to ensure a speedy, inexpensive, and just determination of this appeal. See Fed. R. Civ.
P. 1 (noting procedural rules are meant "to secure the just, speedy, and inexpensive
determination of every action and proceeding"). Appellant's requests for a stay are
Whether Appellant Has Standing.
Appellant contends that the issue of standing is moot "since no party reserved the
issue in front of the [B]ankruptcy Court." (Doc. 6 at 2.) "The question of standing is not
subject to waiver[.]" United States v. Hays, 515 U.S. 737, 742 (1995). Moreover,
because it "derives from the 'case or controversy' requirement of Article III" of the
Constitution, the lack of standing "may be raised at any time" by any party or by the
court sua sponte. Wight v. BankAm. Corp., 219 F.3d 79, 86, 90 (2d Cir. 2000); see also
Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care,
L.L.C., 433 F.3d 181, 198 (2d Cir. 2005) (explaining the court can raise Article III
standing sua sponte, including on appeal). As "a prerequisite to the invocation of federal
court jurisdiction[,]" the party "invoking federal court jurisdiction" bears the burden of
demonstrating that he or she meets the requirements for standing. Chabad Lubavitch of
Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm 'n, 768 F .3d 183, 200-01 (2d Cir.
2014); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) ("Since
[standing is] an indispensable part of the plaintiffs case, [standing] must be supported in
the same way as any other matter on which the plaintiff bears the burden of proof, i.e.,
with the manner and degree of evidence required at the successive stages of the
With regard to standing in this case, the Second Circuit has '"adopted the general
rule ... that in order to have standing to appeal from a bankruptcy court ruling, an
appellant must be a person aggrieved-a person directly and adversely affected
pecuniarily by the challenged order of the bankruptcy court.'" In re DBSD N. Am., Inc.,
634 F.3d 79, 88-89 (2d Cir. 2011) (quoting Int'l Trade Admin. v. Rensselaer Polytechnic
Inst., 936 F.2d 744, 747 (2d Cir. 1991)). Standing for bankruptcy "is 'stricter than
Article III's injury in fact test'" in light of the Second Circuit's "'concern that freely
granting open-ended appeals to those persons affected by bankruptcy court orders will
sound the death knell of the orderly disposition of bankruptcy matters."' In re Barnet,
737 F.3d 238, 242 (2d Cir. 2013) (quoting In re Gucci, 126 F.3d 380, 388 (2d Cir.
While it appears that Appellant submitted a proof of claim before the Bankruptcy
Court, Appellant does not challenge the Bankruptcy Court's resolution of his proof of
claim. See In re DBSD N. Am., Inc., 634 F.3d at 89 (holding a creditor has standing when
a bankruptcy court order affects the creditor's ability to receive payment on the creditor's
claim). Rather, Appellant maintains that the Bankruptcy Court should have stricken
Wells Fargo's filings that challenged Debtor's good faith and that the Bankruptcy Court
should have addressed the issues he raised regarding the state court cases involving
Debtor's properties and the claims of other creditors in Debtor's Chapter 13 proceeding.
Appellant does not explain how he would have standing to raise those issues on appeal
unless the Bankruptcy Court's order resolving them directly, adversely, and pecuniarily
affected Appellant. 4
Nothing in the Bankruptcy Court's order "directs any relief against" Appellant. In
re Barnet, 737 F.3d at 242. To find that Appellant, who suffered no pecuniary harm from
dismissal, has standing to challenge the order granting Debtor's request for voluntary
dismissal is directly contrary to the Second Circuit's directive that Appellant "must show
not only injury in fact under Article III but also that the injury is direct and financial." In
re DBSD N. Am., Inc., 634 F .3d at 89 (citations, alterations, and internal quotation marks
omitted). To the extent that Appellant has suffered any (yet unidentified) "potential
harm," Kane v. Johns-Manville Corp., 843 F.2d 636, 642 n.3 (2d Cir. 1988), or has been
"'indirectly affected"' by the Bankruptcy Court's dismissal order, neither are sufficient to
establish standing to appeal. In re Colony Hill Assocs., 111 F.3d 269, 273 (2d Cir. 1997)
(noting the Second Circuit's standing requirement "'reflect[s] the understandable concern
It is unclear if Appellant is seeking to vindicate Debtor's rights and interests as the basis for his
standing in this appeal because he also taken a position adverse to Debtor by arguing that
Debtor's request for dismissal should not be granted and by requesting that the Chapter 13
proceeding remain open. Because the Bankruptcy Court afforded Debtor all the relief Debtor
requested, Appellant could not appeal based on any harm suffered by Debtor. Moreover, an
appellant "must 'assert his own legal rights and interests and not those ofthird parties[,]'" In re
DPH Holdings Corp., 468 B.R. 603, 612 (S.D.N.Y. 2012) (quoting Freeman v. Journal Register
Co., 452 B.R. 367, 371 (S.D.N.Y. 2010)), and courts "have often denied standing as to any claim
that asserts only third-party rights." Kane v. Johns-Manville Corp., 843 F.2d 636, 644 (2d Cir.
that if appellate standing is not limited, bankruptcy litigation will become mired in
endless appeals brought by the myriad of parties who are indirectly affected by every
bankruptcy court order"') (alteration in original) (quoting Kane, 843 F.2d at 642). The
questionable merits of Appellant's appeal and Appellant's apparent lack of standing thus
weigh heavily in favor of declining to authorize further delay.
Whether Dismissal Is Warranted.
In addition to determining whether the court should excuse Appellant's failure to
file a timely brief, the court must also consider whether dismissal of this appeal is
"appropriate in the circumstances[.]" In re Tampa Chain Co., 835 F.2d 54, 55 (2d Cir.
1987) (concluding most time limitations imposed in the Federal Rules of Bankruptcy
Procedure are not jurisdictional and that therefore a district court "should exercise
discretion to determine whether dismissal is appropriate" for the failure to file an
appellant brief). Prior to dismissal, the court informed Appellant of the "potential" for
dismissal and afforded Appellant the "opportunity" to "explain" his "conduct." In re
Harris, 464 F.3d 263, 272 (2d Cir. 2006) (internal quotation marks omitted) (adopting a
"flexible approach" for evaluation of dismissal of "a bankruptcy appeal on procedural
grounds rather than to continue to the merits of the appeal"). Other relevant factors the
court must consider with regard to dismissal include balancing the interest of justice to all
parties against whether a lesser sanction would be appropriate over dismissal; whether
any other parties were prejudiced; whether Appellant should be granted the opportunity
to rectify the problem; and whether dismissal is warranted to control the court's dockets
and prevent delay and abuse of the legal process. See id.
Here, Appellant was provided with clear notice in the court's April28, 2015 Order
of the potential for dismissal for any continued delay in filing his brief. That Order also
provided Appellant with an opportunity to explain his non-compliance with the Federal
Rules of Bankruptcy Procedure. Thereafter, rather than squarely addressing the Order to
Show Cause, Appellant requested an extension of the time to file his brief, arguing that
he was unfamiliar with the procedures of federal court and that the process was "foreign
and scary." (Doc. 4 at 1.) The court granted that request, which provided Appellant with
the opportunity to rectifY the problem of his delay with a sixty-day extension to file his
In seeking another continuance on the day his brief was due, Appellant again
references his unfamiliarity with the proceedings in federal court and argues against a
"procedural dismissal." (Doc. 6 at 2.) However, the court expressly cited the rules that
govern the submission of an appellant's brief in its April 28, 2015 Order and in its June
23, 2015 Order. The June 23, 2015 Order granted Appellant an extension, which allotted
more than sufficient time for Appellant to reference those rules and prepare his brief. He
cites no circumstances or justifications that caused him to delay his request for an
additional continuance until the last possible date. The court thus cannot determine
whether the continuance was sought in good faith. See In re Tampa Chain Co., 835 F.2d
at 55-56 (directing a district court to evaluate whether a party's delay and noncompliance is the result of bad faith, negligence, or indifference, any of which could
Although no other party has participated in this appeal to date, prejudice is likely
to ensue when they are required to file responsive briefs to an appeal that appears to lack
both standing and merit. That, in turn, will cause those parties to incur unnecessary
expenses to continue to litigate a matter that has been dismissed. This likelihood for
prejudice thus also weighs in favor of dismissal.
Finally, dismissal is warranted to control the court's dockets and prevent delay in
this appeal. The court has already afforded Appellant ample time to file his brief and has
examined the arguments he appears to advance on appeal in the light most favorable to
him. See Triestman v. Fed. Bureau ofPrisons, 470 F.3d 471,474 (2d Cir. 2006)
(directing that ''the submissions of a pro se litigant must be construed liberally and
interpreted to raise the strongest arguments that they suggest") (internal quotation marks
omitted). Further proceedings will not cure Appellant's lack of standing and will not
alter the conclusion that the Bankruptcy Court properly dismissed Debtor's Chapter 13
proceeding at her request. Any continuation in this appeal would thus not only prejudice
Debtor, who sought a voluntary dismissal, and Debtor's creditors, but would leave this
case pending without furthering the interests of justice. Accordingly, the court finds that
dismissal is "appropriate in the circumstances" of this appeal, and therefore ORDERS
this appeal to be DISMISSED. In re Tampa Chain Co., 835 F.2d at 55; see also In re
Am. Land Acquisition Corp., 599 F. App'x 401, 401 (2d Cir. 20 15) (confirming a district
court's discretion to decline to excuse "procedural noncomplian~e'; with the Federal
Rules of Bankruptcy Procedure and to dismiss a bankruptcy appeal on that same basis).
For the foregoing reasons, the court DENIES Appellant's request for an extension
of time to file his brief and DENIES Appellant's requests for a stay. The court finds that
dismissal is warranted, and this appeal is hereby DISMISSED.
Dated at Burlington, in the District of Vermont, this
.zr"oay of August, 2015.
Christina Reiss, Chief Judge
United States District Court
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