Metcalf v. Wernerdal (In re Adbox, Inc.)

225 F. App'x 469

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2007
• Docket: No. 05-56390
• Status: Published

Opinion

MEMORANDUM

*

Donald and Janet Metcalf appeal the district court’s dismissal for failure to prosecute their appeal of the bankruptcy court’s order quashing their subpoenas and imposing sanctions. We review dismissal of an appeal for failure to prosecute for abuse of discretion, Dunmore v. United States, 358 F.3d 1107, 1111 (9th Cir.2004), and we affirm.

Under 11 U.S.C. § 362(a), filing for bankruptcy effects an automatic stay against all proceedings originally brought against the debtor in bankruptcy. However, the automatic stay in Wernerdal’s personal bankruptcy does not apply to this appeal, because an examination under Federal Rule of Bankruptcy Procedure 2004 pursuant to the Adbox bankruptcy is not a “proceeding” within the meaning of 11 U.S.C. § 362. See Parker v. Bain, 68 F.3d 1131, 1135-36 (9th Cir.1995); see also In re Carlson, 265 B.R. 346, 348 (Bankr. D.R.I.2001).

The appeal not being stayed, the district court did not abuse its discretion in dismissing it for failure to prosecute. The Metcalfs admittedly took no action to prosecute the appeal before the district court issued its order to show cause why the appeal should not be dismissed and also failed to give a timely and adequate response to that order.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.