Schaaf v. Malaier et al

Filing 12

ORDER denying 11 Motion to Reopen Case. Signed by Judge Robert J. Bryan. Paper copy sent to appellant at Gig Harbor address and to Trustee Malaier at Tacoma address . (JL) Modified on 8/20/2019 (JL).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PHILLIP MICHAEL SCHAAF,
Appellant,
v.

CASE NO. 19-5312 RJB
ORDER DENYING MOTION TO
REOPEN CASE

MICHAEL G. MALAIER, Chapter 13
Trustee, and MARK D. WALDRON,
Chapter 7 Trustee,
Appellees.

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THIS MATTER comes before the Court on the Appellant’s motion to reopen his case.
Dkt. 11. The Court has considered the motion and remaining file.
On April 17, 2019, this case was transferred from the U.S. Bankruptcy Appellate Panel of
the Ninth Circuit. Dkt. 1. It is an appeal of an order from In re Schaaf, U.S. Bankruptcy Court
for the Western District of Washington case number 18-42254, Dkt. 76, entitled, “Order on
Trustee’s Objections to Exemptions.” Dkt. 1. On May 22, 2019, Mr. Schaaf filed a motion for
extension of time to “complete the record,” which was construed by the Court to be a motion for

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ORDER DENYING MOTION TO REOPEN CASE - 1

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extension of time for him to file a statement of issues and designate those portions of the record

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which were relevant. The Appellees did not respond to the motion.

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On June 4, 2019, Mr. Schaaf’s motion was granted and he was given until July 5, 2019 to

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file a statement of issues and designate those portions of the record which were relevant. Dkt. 7.

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On July 11, 2019, the U.S. Bankruptcy Clerk of the Court filed a Notice of Appeal Status/Notice

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of Deficiency which indicated that the statement of issues and the designation of the record had

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not been filed. Dkt. 8. Mr. Schaaf did not respond.

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On July 15, 2019, Mr. Schaaf’s appeal was dismissed without prejudice under Fed.
Bankr. P. Rule 8009 (a)(1), for failure to file a statement of issues and designate the items to be
included in record for the appeal. Dkt. 9.
On July 29, 2019, Mr. Schaaf filed the instant motion, “requesting reinstatement of [his]
appeal.” Dkt. 11. He asserts that he has hired a lawyer. Id.
DISCUSSION AND DECISION

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Under Fed. R Bankr. P. Rule 8009 (a)(1), an “appellant must file with the bankruptcy

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clerk and serve on the appellee a designation of the items to be included in the record on appeal

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and a statement of the issues to be presented.” District courts may impose sanctions, including

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dismissal, upon any bankruptcy appellant who fails to take steps required to prosecute an appeal.

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See Greco v. Stubenberg, 859 F.2d 1401, 1404 (9th Cir. 1988). “In determining whether to

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dismiss an appeal on such grounds, a district court must consider (1) alternative measures in lieu

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of dismissal, and (2) whether the conduct giving rise to the dismissal was caused entirely by the

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party's attorney.” Id.

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Mr. Schaaf’s motion to reopen his appeal should be denied. No attorney has entered a
notice of appearance for him in this appeal. Mr. Schaaf did not file a statement of issues or

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ORDER DENYING MOTION TO REOPEN CASE - 2

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designate those portions of the record which are relevant to his appeal. The reasoning from the

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July 15, 2019 order dismissing the appeal still applies and is adopted here. This case should

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remain closed.

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IT IS ORDERED:
•

The Appellant’s motion to reopen his case (Dkt. 11) IS DENIED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and
to any party appearing pro se at said party’s last known address.
Dated this 20th day of August, 2019.

A
ROBERT J. BRYAN
United States District Judge

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ORDER DENYING MOTION TO REOPEN CASE - 3