In re Patin

199 B.R. 728, 1996 U.S. Dist. LEXIS 12013, 1996 WL 432328
CourtDistrict Court, N.D. California
DecidedJuly 25, 1996
DocketNo. C-96-1585-VRW
StatusPublished
Cited by2 cases

This text of 199 B.R. 728 (In re Patin) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Patin, 199 B.R. 728, 1996 U.S. Dist. LEXIS 12013, 1996 WL 432328 (N.D. Cal. 1996).

Opinion

ORDER

WALKER, District Judge.

Appellee/debtor’s chapter 13 plan was confirmed by Bankruptcy Judge Jaroslovsky on July 21, 1995. Appellant IRS, which had opposed confirmation of the plan, filed a notice of appeal of the bankruptcy court’s decision on July 31, 1995. Appellant did not provide the clerk of the bankruptcy court with a copy of pleadings designated on appeal, nor did appellant pay the clerk for copying of those pleadings.

On August 15, 1995, the clerk notified appellant that it had failed to submit copies of pleadings designated on appeal and asked each party to “provide a copy of each pleading designated.” Appellee’s Response to OSC, Ex A. Appellant did nothing in response to the clerk’s notice. Apparently, nothing further happened in the case until April 17, 1996, when Judge Jaroslovsky sua [730]*730sponte recommended dismissal of the appeal under BLR 8011—1(b) for appellant’s failure “to complete the record on appeal * * * by supplying copies of designated record or paying for their reproduction as required by Bankruptcy Rule 8006.” On May 3, 1996, the court issued to appellant.an order to show cause why this appeal should not be dismissed for the reasons recommended by the bankruptcy court. The court farther notified appellant that a hearing would be held on this matter on July 25, 1996. Although appellant timely filed responses to the May 3, 1996, order, it faded to appear at the July 25, 1996, hearing. The court will therefore consider the bankruptcy court’s recommendation without oral argument. Civü LR 7-6. For the reasons stated below, the appeal is DISMISSED and Jay R. Weill, counsel for appellant, is ORDERED TO SHOW CAUSE why he should not be sanctioned for failing to appear at the July 25, 1996, hearing.

I

The bankruptcy court based its recommendation of dismissal on FRBrP 8006, which provides in pertinent part: “Any party filing a designation of the items to be included in the record shall provide to the clerk a copy of the items designated or, if the party fails to so provide a copy, the clerk shall prepare a copy at the party’s expense. * * * All parties shall take any other action necessary to enable the clerk to assemble and transmit the record.” The bankruptcy court concluded that because appellant neither provided copies of the designated pleadings nor paid for their reproduction, appellant violated Rule 8006.

It is unclear whether appellant concedes that it violated Rule 8006. In the first pages of its return to the OSC, appellant argues that it did not violate FRBrP 8006. See Appellant Return at 1 (“Appellant * * * respectfully argues that it did not violate Rule 8006”). Although appellant does not explicitly spell out its interpretation of Rule 8006, appellant apparently feels that under that Rule it was not required to take any action to perfect the record or pursue the appeal until the clerk prepared copies of the designated pleadings and sent appellant the bill for such preparation.

Later in its return to the OSC, however, appellant appears to agree that it violated Rule 8006. See id. at 2, 3 (“Appellant admits that it may have misinterpreted the rule and the better course of action would have been to communicate directly with the clerk;” “To be sure, government counsel misinterpreted Rule 8006 to provide that the bankruptcy clerk would compile the record”). Appellant’s position whether it violated Rule 8006 is thus unclear.

The court concludes that whatever else Rule 8006 may require, the portion of that Rule which provides that “[a]ll parties shall take any other action necessary to enable the clerk to assemble and transmit the record” requires parties to communicate with the bankruptcy clerk—either by giving the clerk copies of designated pleadings or by asking the clerk to prepare those copies and send the bill—once the clerk notifies the parties that the record is deficient. The court therefore concludes that appellant violated Rule 8006 when it failed to respond to the clerk’s notice of August 15, 1995. The question for the court now is whether this violation justifies dismissing the appeal.

II

The Ninth Circuit addressed the propriety of dismissing a bankruptcy appeal for failure to comply with FRBrP 8006 in In re Fitzsimmons, 920 F.2d 1468 (9th Cir.1991). In Fitzsimmons, the appellant timely filed its notice of appeal on February 2, 1987. Id. at 1470. Appellant claimed that on the same day it served on appellee a designation of the record on appeal; appellee denied that such service took place. Id.

On February 25, 1987, appellee objected to appellant’s request for a record on appeal because it did not constitute a proper designation of the record. Id. On March 5, 1987, appellee received from appellant a copy of the designation of record, file stamped February 6, 1987. Appellee then filed counter-designations, and on April 16 appellant asked the bankruptcy court reporter to prepare transcripts and to post estimated costs of [731]*731those transcripts. On July 25, 1987, the bankruptcy clerk requested from appellant (1) the cost of preparing the transcripts and (2) amended designations to correct misde-signations made by appellant. Appellant mailed its amended designations on September 25, 1987. Id.

On October 14, 1987, the bankruptcy clerk notified the appellee that preparation of the clerk’s record had not yet begun because appellant had not posted the cost for preparation of the clerk’s transcripts. On October 16, 1987, appellee moved to dismiss the appeal under FRBrP 8006 based on the delays in preparation of the transcripts. Appellant posted the preparation fees on October 28, 1996, and the transcript was forwarded to the district court on November 1, 1987. The district court granted appellee’s motion to dismiss, citing five reasons: (1) appellant failed to serve the designation of record for a month; (2) appellant failed to take prompt steps to have the reporter’s transcript prepared; (3) appellant failed for two months to correct its record designations; (4) appellant failed to pay the record preparation fee until after the motion to dismiss was filed; and (5) such delays in bankruptcy cases can cause creditors to suffer substantial prejudice. Id. at 1470-71.

The Ninth Circuit affirmed for the reasons stated by the district court, concluding that appellant’s extreme and unexcused delay in complying with the requirements of FRBrP 8006 constituted bad faith. Id. at 1471-1472. The Ninth Circuit further concluded that given appellant’s egregious conduct, the district court was not required to consider less severe sanctions than dismissal of the appeal. Id. at 1472-74.

Fitzsimmons is on all fours with the current case. The court finds it difficult to accept appellant’s argument that appellant, in good faith, believed that it had complied with FRBrP 8006 in light of the fact that (1) appellant received a letter from the bankruptcy clerk on August 15, 1995, asking for copies of the designated pleadings and (2) nothing happened in the appeal for 8 months after. appellant received the clerk’s notice. Even if appellant was justified in not submitting the designated pleadings before August 15, there is no justification for its decision simply to ignore the clerk’s notice.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
199 B.R. 728, 1996 U.S. Dist. LEXIS 12013, 1996 WL 432328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-patin-cand-1996.