Justin Parmer v.

• Court: Court of Appeals for the Third Circuit
• Decided: August 25, 2025
• Docket: 25-1213
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 25-1213 __________

In re: JASON PARMER, Debtor,

v.

STEVEN D’AGOSTINO, Appellant ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3:23-cv-01670) District Judge: Honorable Robert Kirsch ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) August 22, 2025

Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges

(Opinion filed: August 25, 2025) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Steven D’Agostino appeals the District Court’s order dismissing his appeal from

orders of the United States Bankruptcy Court for the District of New Jersey. Those

orders had confirmed Debtor Jason Parmer’s bankruptcy plan, denied D’Agostino’s

motion to dismiss Parmer’s bankruptcy petition, and denied D’Agostino’s motion to

reconsider. For the following reasons, we will affirm the District Court’s judgment.

I.

D’Agostino was a creditor in Parmer’s bankruptcy petition because of a pending

employment-discrimination suit against Parmer and related parties. See D’Agostino v.

Parmer, No. 23-1670, 2024 WL 1197767, at *1. D’Agostino moved to dismiss Parmer’s

petition in the Bankruptcy Court as having been filed in bad faith. See id. The

Bankruptcy Court held a hearing on Parmer’s bankruptcy plan and D’Agostino’s motion,

after which it confirmed the plan and denied the motion to dismiss. In re Parmer, 23-

1670, 2025 WL 43353, at *1. It also denied D’Agostino’s motion for reconsideration of

that order. Id. D'Agostino appealed to the District Court. Id.

On January 7, 2025, the District Court sua sponte dismissed the appeal for failure

to comply with Federal Rule of Bankruptcy Procedure 8009, which requires the record on

appeal to include “any opinion, findings of fact and conclusions of law relating to the

issues on appeal, including transcripts of all oral rulings.” Fed. R. Bankr. P. 8009(a)(4).

The Rule further provides that that an appellant is required to order “a transcript of such

2 parts of the proceedings not already on file as the appellant considers necessary for the

appeal” and that “[i]f the appellant intends to argue on appeal that a finding or conclusion

is unsupported by the evidence or is contrary to the evidence, the appellant must include

in the record a transcript of all relevant testimony and a copy of all relevant exhibits.”

Fed. R. Bankr. P. 8009(b)(1); (b)(5).

D’Agostino declined to provide transcripts of the Bankruptcy Court oral

arguments, asserting that the transcripts were not necessary for the District Court to

review the orders. The District Court disagreed with his assertion, finding that without

the relevant transcripts, it could not review the challenged orders on the merits. Parmer,

2024 WL 1197767, at *2. The District Court issued an order requiring D’Agostino to

provide the transcripts or show cause as to why the appeal should not be dismissed. Id. at

3. D’Agostino moved to have the transcripts provided at the Government’s expense

because he was proceeding In Forma Pauperis. Id. at 3-4.

The District Court directed the parties back to the Bankruptcy Court to determine

whether the appeal was not frivolous and presented a substantial question as required to

receive Government-provided transcripts pursuant to 28 U.S.C. § 753(f). Id. at 4. After

the Bankruptcy Court deemed the appeal frivolous, and D’Agostino failed to file the

transcripts, the District Court considered the factors in Poulis v. State Farm Fire and

3 Casualty Company, 747 F.2d 863 (3d Cir. 1984), and concluded that dismissal was

warranted. See id. at 4-10. This appeal followed.1

II.

Because D’Agostino’s brief fails to address how the District Court’s abused its

discretion in its review of the relevant Poulis factors, he has likely forfeited appellate

review of the District Court’s determination.2 See Lara v. Comm’r Pa. State Police 125

F.4th 428, 432 n.5 (3d Cir. 2025) (reiterating that “an issue is [forfeited] unless a party

raises it in its opening brief” (quotation marks omitted)); see also Kost v. Kozakiewicz, 1

F.3d 176, 182 (3d Cir.1993).

Nevertheless, in an abundance of caution, we have examined the District Court’s

opinion explaining its dismissal and cannot say that the District Court abused its

discretion in applying the Poulis factors and dismissing the case for failure to comply

with Rule 8009. The factors a District Court must weigh under Poulis are: “(1) the extent

of the party’s personal responsibility; (2) the prejudice to the adversary caused by the

failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness;

(4) whether the conduct of the party . . . was willful or in bad faith; (5) the effectiveness

1 This matter was submitted on the Appellant’s brief only. We have jurisdiction pursuant to 28 U.S.C. §§ 158(d)(1) and 1291. We review the District Court’s order for abuse of discretion. See Jewelcor Inc. v. Asia Com. Co., Ltd., 11 F.3d 394, 397 (3d Cir. 1993). 2 D’Agostino’s brief focuses on alleged errors committed by the Bankruptcy Court, but those issues are not before us. 4 of sanctions other than dismissal, which entails an analysis of alternative sanctions; and

(6) the meritoriousness of the claim.” 747 F.2d at 868. A District Court must also

consider whether the Appellant was provided with notice and an opportunity to respond.

See In re Harris, 464 F.3d 263, 265 (2d Cir. 2006).

Here, the District Court’s order provided an analysis of the Poulis factors as

required, with a particular focus on whether any other sanction would be appropriate.

See Palmer, 2025 WL 43353, at 8-9. We have examined the District Court’s analysis and

perceive no basis for concluding that dismissal of the appeal was an abuse of discretion.

Accordingly, we will affirm the District Court’s judgment.