Jennings v. Brown

• Court: District Court, D. Arizona
• Decided: November 6, 2020
• Docket: 2:20-cv-01158
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Beebe Rae Jennings, No. CV-20-01158-PHX-MTL

10 Appellant, ORDER

11 v.

12 Russell Brown, et al.,

13 Appellees. 14 15 Appellant Beebe Rae Jennings filed the present bankruptcy appeal, pro se, on June 16 11, 2020. (Doc. 1.) Federal Rule of Bankruptcy Procedure 8009 requires an appellant, 17 within 14 days of filing the notice of appeal, to file and serve “a designation of the items 18 to be included in the record on appeal and a statement of the issues to be presented.” Fed. 19 R. Bankr. P. 8009(a)(1)(A). On July 10, 2020, the Court extended the deadline to perfect 20 the appeal, upon Appellant’s motion, to July 17, 2020. (Doc. 8.) 21 On August 6, 2020, Appellant’s counsel filed a notice of appearance. (Doc. 10.) One 22 week later, the Clerk of the U.S. Bankruptcy Court for the District of Arizona notified this 23 Court that the certificate of record of appeal could not be finalized because the underlying 24 bankruptcy case was dismissed on August 13, 2020. (Doc. 11.) 25 Seeing no further action, the Court ordered Appellant to show cause in writing by 26 no later than October 22, 2020, why the case should not be dismissed for failure to perfect 27 the appeal. (Doc. 15.) Appellant has not done so. 28 Generally, before dismissing a bankruptcy appeal for failure to perfect the appeal, a district court must “consider[] alternative sanctions in lieu of dismissal.” Jn re Fitzsimmons, 2|| 920 F.2d 1468, 1472 (9th Cir. 1990). In “egregious circumstances,” however, a court may || dismiss for noncompliance without explicit consideration of alternative sanctions. In re 4|| Aspen Healthcare, Inc., 265 B.R. 442, 447 (N.D. Cal. 2001) (citing Fitzsimmons, 920 F.2d at 1473). “Dilatory conduct” constituting such egregious circumstances includes an 6|| “extreme and unexcused delay in complying with the requirements of FRBP 8006.” Jd. 7\| (citing In re Patin, 199 B.R. 728, 732 (N.D.Cal.1996)). 8 The Court finds that this case presents such a delay. The appeal was filed five 9|| months ago. See In re Aspen Healthcare, Inc., 265 B.R. at 447 (“Courts have found as short || as a one month delay to be extreme and in bad faith.”’). Appellant has not justified her || failure to perfect the appeal, nor responded to the Court’s order to show cause. The 12 || Bankruptcy Court’s earlier notification (Doc. 11) also indicates that this appeal is likely 13 || moot. Further, the Court notes that it does not see any reasonable alternative to dismissal at this point, other than issuing yet another order to show cause. Accordingly, 15 IT IS ORDERED dismissing this matter without prejudice. The Clerk of the Court 16 || is directed to terminate this case and to enter judgment accordingly. 17 Dated this 5th day of November, 2020. 18 Micka To $iburde 0 Michael T. Liburdi 21 United States District Judge 22 23 24 25 26 27 28

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