In re: Philip O. Emiabata

Filing 65

ORDER denying Appellant's 62 Motion for Reconsideration; denying Appellant's 63 Motion for Extension of Time to File Opening Brief. This matter is dismissed for failure to prosecute. Signed by Judge Marsha J. Pechman. (PM) cc: Appellant via certified mail, return receipt requested. Tracking Number 7006 2760 004 3585 5253

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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In re PHILLIP O. EMIABATA,
Appellant,

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CASE NO. C17-1752MJP
ORDER OF DISMISSAL

v.
SPECIALIZED LOAN SERVICING,
LLC, and AVAIL 1 LLC,

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Appellees.
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Appellant has had a bankruptcy appeal action pending before this Court since November
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2017. The Court will not retrace the winding path that this litigation has taken since its filing.
There have been a series of starts and stops, with missteps from both the Court and the

19 Appellant. However, with Appellant’s filing of his Statement of Issues on Appeal (Dkt. No. 52)
20 and the creation of a briefing schedule (Dkt. No. 55), the matter appeared to be back on course
21 and headed to resolution. When the Court granted Appellant’s Motion for Extension of Time to
22 file his opening brief (Dkt. No. 58) on January 9, 2019, that order made clear that there would be
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no further continuances of this matter.

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ORDER OF DISMISSAL- 1

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On January 28, 2019, Appellant filed “Appellant Motion to Show Cause” (Dkt. No. 59), a

2 pleading which claimed that Appellant believed his matter was still stayed, based on a recusal
3 order which had been resolved in February of 2018. The Court rejected Appellant’s claim, as
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well as his request for a further continuance of 21 days “to correct the deficiencies,” and
reminded Appellant that the opening brief of his appeal was still due on February 7, 2019. (Dkt.

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No. 60.) The order was mailed to Appellant by certified mail, return receipt requested, and the
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Court received proof that the order had been delivered to Appellant’s address on February 1,
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2019. (Dkt. No. 61.)
Further proof that Appellant had received the Court’s order came on February 6, 2017, in

9 the form of two new motions by Appellant. The first was entitled “Appellant Motion Asking the
10 Court to Correct Its Order on ‘Appellant Motion to Show Cause’” (Dkt. No. 62); essentially, a
11 motion for reconsideration of the Court’s previous order. In it, Appellant claimed that “there is
12 [] no Appellant Motion to Show Cause on the above case number 17-cv-01752-MJP with the
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Court.” (Id. at 2.) The Appellant further objected to the Court’s characterization of his earlier
filing of an appeal with the Ninth Circuit as “improper.” (Id. at 3.) Appellant concludes by

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requesting “for the sake of Justice move this action to another District [Olympia] Washington
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State,” and for a 14 day extension of time to file the opening brief in his appeal. (Id. at 4.)
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Appellant’s motion for reconsideration is DENIED. Appellant most certainly did file an

17 Appellant Motion to Show Cause (attached to this order as “Exhibit A”). The Court has
18 previously explained to Appellant why his “interlocutory appeal” to the Ninth Circuit was
19 improper (see Dkt. No. 32 at 3-4) and will not repeat that analysis here; as the appeal has been
20 dismissed (see Dkt. No. 25), it is moot in any event. This Court is furthermore without
21 jurisdiction to transfer Appellant’s matter (a bankruptcy appeal governed exclusively by federal
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law) to a state court; Appellant’s previous motion for this Court to recuse itself has already been
denied, and that denial affirmed by the Chief Judge of this District. (See Dkt. Nos. 17, 19.)

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ORDER OF DISMISSAL- 2

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Local Rule 7(h) requires a party moving for reconsideration to either demonstrate

2 “manifest error” in the Court’s ruling or provide new facts or law relevant to the Court’s decision
3 which could not have previously been produced. Appellant has done neither; his motion is
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without merit.
The second motion filed by Appellant on February 6 was “Plaintiff Second Motion for

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Enlargement of Time to File Appellant Opening Brief.” (Dkt. No. 63.) Appellant cites as “good
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cause” for his request the time he has been forced to expend addressing the Court’s “errors.” (Id.
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at 2.) Again, Appellant’s motion is without merit. In the first place, he was clearly informed in

8 the Court’s prior order granting his first request for an extension of time to file his opening brief
9 “that there will be no further continuances granted in this matter.” (Dkt. No. 58 at 1.) In the
10 second place, the “errors” which he alleges the Court to have made were simply responses to
11 Appellant’s pleadings which the Court was required to rule upon; Appellant will not be heard to
12 claim “good cause” for a continuance based on the Court being forced to respond to a series of
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confusing procedural gambits interposed by Appellant in his action. The motion for a further
extension of time to file his opening brief is DENIED.

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Which brings us to the current status of the case. February 7, 2019 – the final deadline
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Appellant was given to file his opening appellate brief – has come and gone without an opening
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brief having been filed. Appellant having been given ample opportunity to plead his substantive

17 case and having failed to adhere to the timelines set out by the Court, the Court is left with no
18 alternative but to DISMISS the matter for failure to prosecute.
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The clerk is ordered to provide copies of this order to Appellant and to all counsel. The

21 Clerk’s Office is directed to mail a copy of this Order by certified mail (return receipt requested)
22 to Appellant.
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ORDER OF DISMISSAL- 3

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Dated this 21st day of February, 2019.

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A

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Marsha J. Pechman
United States Senior District Judge

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ORDER OF DISMISSAL- 4

EXHIBIT A
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