Richardson v. Treacy, Shaffel, Moore & Mueller

189 F. App'x 93
Court of Appeals for the Third Circuit·Decided June 20, 2006·No. No. 05-3868·Published·Cited by 17 cases

Opinion

OPINION OF THE COURT

PER CURIAM.

This appeal represents one of several cases arising from disputes over a Federal Bureau of Prisons construction contract on the New York Metropolitan Detention Center (MDC). Appellant Harry Richardson appeals from the District Court’s order dismissing his appeal with prejudice for failure to follow the mandates of the Federal Rules of Bankruptcy Procedure. For the reasons that follow we will vacate and remand for further proceedings.

I.

After more than a decade of litigation, the parties are now quite familiar with the facts and, thus, we only briefly recite them here. In 2003, Richardson Industrial Contractors, Inc. (RICI), commenced a bankruptcy action in which Richardson, as RICI’s principal shareholder, joined as a creditor. See In re Richardson Indus. Contractors, Inc., No. 03-26318 (Bankr. D.N.J.). On December 6, 2004, the Bankruptcy Court entered an order denying Richardson’s motion for reconsideration of its order denying his application for designation of a new independent counsel to prosecute RICI’s claim in the United States District Court for the Eastern District of New York. Richardson timely appealed to the United States District Court for the District of New Jersey.

Pursuant to the briefing schedule set by the District Court in accordance with Bankruptcy Rule 8009, Appellant’s brief was due on February 10, 2005.1 When the [95] briefing schedule was issued, Appellant was also directed to furnish paper copies of all of the documents listed in the designation of the record. On February 4, 2005, Appellant sent a letter to the District Court Clerk requesting that the Clerk establish “a reasonable schedule and method of payment” for him to provide the documents and grant an extension of time until May 10, 2005 to submit his brief. On February 10, 2005, Appellant filed a letter motion with the Court requesting that it grant the extension of time requested in his February 4 letter.

Appellees Larry Blumenstyk and Salvatore and Deanna Arnone objected to Appellant’s request, arguing that the motion was filed for the sole purpose of delay and that Appellant had not set forth any legitimate basis for extending the time to file his brief. On March 21, 2005, the District Court granted Appellant’s motion, finding Appellant’s request for a 90-day extension to be excessive, but granting Appellant a 60-day extension, until April 8, 2005, to file his brief.

On April 5, 2005, three days before the brief was due, Appellant filed a second request for an extension of time until May 10, the date the District Court had previously rejected as excessive. Appellant argued that upon receiving the Court’s order granting him an extension of time, he contacted the Bankruptcy Court regarding the transcripts noticed in the designated record and was informed that, even with expedition, the transcripts would not be available until shortly after April 8. It appears from this statement that Appellant did not attempt to acquire these transcripts until after March 21 despite having filed his notice of appeal in the Bankruptcy Court on December 10, 2004. Appellant supplemented his motion with a letter to the Court dated April 6, 2005 indicating that the Bankruptcy Court had provided a disc to the transcription service containing incorrect data, thereby further delaying production of the transcripts.

Appellees opposed Richardson’s second motion, arguing that it did not differ substantially from his first, that it was merely a delaying tactic, and that Appellant had failed to promptly order transcripts after filing the designation of record as required by Federal Rule of Bankruptcy Procedure 8006.2

On May 9, 2005, while his motion for an extension of time was still pending, Richardson filed his appeal brief. On May 24, 2005, the District Court issued an order denying Richardson’s motion for an extension of time and dismissing his appeal for failure to follow the Bankruptcy Rules and to timely file an appellate brief. The Court held that Appellant had intentionally disregarded its original order rejecting his request for a 90-day extension of time to file his brief and instead granting a 60-day extension; that while the Federal Rules of Bankruptcy Procedure provide 15 days in which to file an appellate brief, Appellant had been allowed more than two months in which to do so; and that Appellant had failed to take immediate steps after the filing of the designation of record to file a written request for transcripts as required by Federal Rule of Bankruptcy Procedure 8006. The Court concluded that Richardson’s failure to honor the previously extended deadline of April 8, 2005, as well as [96] his failure to comply with Federal Rule of Bankruptcy Procedure 8006, constituted egregious behavior and bad faith, and could not be considered excusable neglect. The Court further found that Richardson’s actions could not satisfactorily be addressed by discovery sanctions or barring participation in oral argument, and therefore concluded that dismissal of the appeal pursuant to Federal Rule of Bankruptcy Procedure 8001 was warranted.

On June 6, 2005, Richardson timely moved for reconsideration, arguing that the District Court had misapplied the relevant case law and had not accorded sufficient consideration to Appellant’s pro se and financial status in concluding that his appeal should be dismissed. The District Court held that Appellant had not met the stringent standard governing motions for reconsideration, and for the reasons stated in its initial order, denied Appellant’s motion for reconsideration.3 Richardson timely filed a notice of appeal.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a dismissal for failure to prosecute for abuse of discretion. In re Jewelcor Inc., 11 F.3d 394, 397 (3d Cir.1993).

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Richardson v. Treacy, Shaffel, Moore & Mueller, 189 F. App'x 93 (3d Cir. 2006).

189 F. App'x 93 (Richardson v. Treacy, Shaffel, Moore & Mueller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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