Avatar Reit I, LLC v. Space Shadow LLC

• Court: District Court, D. Nevada
• Decided: April 21, 2025
• Docket: 2:24-cv-02374
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 AVATAR REIT I, LLC, 4 Appellant, Case No.: 2:24-cv-02374-GMN 5 vs. ORDER GRANTING APPELLANT’S 6 SPACE SHADOW, LLC, et al. MOTION TO DISMISS 7 Apellees. 8

9 10 Pending before the Court is the Motion to Dismiss, (ECF No. 5), filed by Appellant 11 Avatar Reit I, LLC (“Avatar”). Appellee Space Shadow LLC filed a Response, (ECF No. 6). 12 Appellant did not reply. Because the parties agree that the appeal should be dismissed, the 13 Court GRANTS Appellant’s Motion to Dismiss. 14 I. BACKGROUND 15 This case arises from a Chapter 11 bankruptcy proceeding between Avatar and Space 16 Shadow. (See generally Mot. Dismiss, ECF No. 5). Appellant appealed the Bankruptcy Court’s 17 Order granting Appellee’s Motion to Sell the Real Property of the Debtor Free and Clear of 18 Liens (“Sale Order”). (Id. 5:4–6). Appellant filed a Notice of Appeal of the Sale Order, and the 19 case was assigned to this Court. (See Notice of Appeal, ECF No. 1). The Court ordered 20 Appellant to file its Opening Brief by February 25, 2025. (See Minute Order, ECF No. 4). 21 Appellant failed to file its Opening Brief by the deadline. In March 2025, Appellant filed the 22 pending Motion to Dismiss arguing that the appeal is moot and should not proceed. (See 23 generally Mot. Dismiss). Appellee does not object to dismissing the appeal but argues that the 24 matter is not moot. (See generally Resp., ECF No. 6). 25 1 II. LEGAL STANDARD 2 Federal Bankruptcy Rule 8023 governs voluntary dismissals of bankruptcy appeals. 3 Pursuant to Rule 8023(b), “[a]n appeal may be dismissed on the appellant’s motion on terms 4 agreed to by the parties or fixed by the district court.” Fed. R. Bankr. 8023(b). 5 III. DISCUSSION 6 Both parties agree that this bankruptcy appeal should be dismissed but disagree on the 7 grounds for dismissal. Appellant seeks to voluntarily dismiss the appeal arguing that it is moot 8 because there is no longer a sale contemplated between the Debtor and the Buyer. (See 9 generally Mot. Dismiss). Appellee argues that the appeal is not moot because a sale is still 10 being contemplated and the only obstacle hindering the Debtor from selling the property to the 11 Buyer is this appeal. (Winterton Decl. ¶ 3–5, Ex. 1 to Resp., ECF No. 6-1). Appellee ultimately 12 contends that the appeal is frivolous, and it should be dismissed for Appellant’s failure to 13 prosecute the appeal by failing to file an opening brief by the deadline imposed by the Court. 14 (See generally Resp.). 15 The Court does not make a determination on whether the appeal is moot given the 16 limited record available for review and the parties’ conflicting assertions of whether a sale of 17 the property is still contemplated. The Court likewise cannot dismiss the appeal for failure to 18 prosecute because dismissal on these grounds requires the Court to give an appellant notice 19 prior to dismissal. See generally In re Wright, 659 F. App’x 438 (9th Cir. 2016) (explaining 20 that the district court properly warned appellant that a failure to file an opening brief on her

21 own behalf would result in dismissal [and] gave her a 30–day extension of time to. . . file her 22 opening brief . . . before dismissing the appeal for failure to prosecute). Accordingly, this 23 24 25 1 || appeal is DISMISSED on the grounds that the parties agree that the matter should be 2 || dismissed. 3 CONCLUSION 4 IT IS HEREBY ORDERED that Appellant’s Motion to Dismiss, (ECF No. 5), is 5 ||GRANTED. The appeal is dismissed on the grounds that both parties agree that the appeal 6 ||should be dismissed. The Clerk of Court is kindly instructed to close the case. 7 DATED this 21 __ day of April, 2025. 8 9 10 Gloria M. Navarro, District Judge UNITED § ES DISTRICT COURT 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 This Order does not make a determination on whether the appeal was frivolous and does not preclude Appellee from seeking fees and costs by separate motion pursuant to Fed. R. Bankr. P. 8020(a). Page 3 of 3