Sylvia Emiabata v. Michael Burnett

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 16, 2025
• Docket: 24-1475
• Status: Unpublished

Opinion

USCA4 Appeal: 24-1475 Doc: 18 Filed: 06/16/2025 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1475

SYLVIA N. EMIABATA; PHILIP O. EMIABATA,

Debtors - Appellants,

v.

MICHAEL BRANDON BURNETT,

Trustee - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:24-cv-00101-D)

Submitted: June 12, 2025 Decided: June 16, 2025

Before HARRIS and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Sylvia N. Emiabata and Philip Emiabata, Appellants Pro Se. Michael Brandon Burnette, OFFICE OF THE CHAPTER 13 TRUSTEE, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Sylvia and Philip Emiabata appeal from the district court’s order dismissing their

appeal from the bankruptcy court for failure to prosecute. We vacate the district court’s

order and remand this action to the district court for further proceedings.

The Emiabatas timely noted their appeal from the bankruptcy court’s order

dismissing their Chapter 13 bankruptcy petition, but they failed to take any further action

to prosecute their appeal, including filing a designation of the record and a statement of

issues for appeal and paying the filing fee. The bankruptcy court recommended that the

district court dismiss the appeal on this basis. The district court accepted this

recommendation and dismissed the appeal. The Emiabatas timely appealed that order to

this court.

Bankruptcy Rule 8009 provides that an appellant must designate the items to be

included in the record on appeal and file a statement of the issues within 14 days after the

notice of appeal becomes effective. Fed. R. Bankr. P. 8009(a)(1). The district court has

discretion to dismiss a bankruptcy appeal for failure to timely file the designation of the

record or the statement of issues. Fed. R. Bankr. P. 8003(a)(2). In applying that discretion,

the district court must consider the four factors outlined in In re Serra Builders, Inc., 970

F.2d 1309 (4th Cir. 1992). Specifically, the court must: “(1) make a finding of bad faith

or negligence; (2) give the appellant notice and an opportunity to explain the delay;

(3) consider whether the delay had any possible prejudicial effect on the other parties; or

(4) indicate that it considered the impact of the sanction and available alternatives,”

keeping in mind that dismissal is a “harsh sanction which a district court must not impose

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lightly.” Id. at 1311. Proper application of the Serra Builders test requires the court to

consider and balance all relevant factors. In re SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995).

In this case, the Emiabatas did not timely file a designation of the record or their

statement of issues as required by Rule 8009. The district court dismissed the appeal on

this basis without providing the Emiabatas an opportunity to explain their noncompliance

with the time limit and without addressing the factors identified in Serra Builders. This

omission amounts to an abuse of discretion. See James v. Jacobson, 6 F.3d 233, 239

(4th Cir. 1993).

Accordingly, we vacate the district court’s order dismissing the Emiabatas’ appeal

and remand this case to the district court for application of the Serra Builders balancing

test. See SPR Corp., 45 F.3d at 74. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

VACATED AND REMANDED