United States District Court, S.D. Ohio, Western Division
ORDER GRANTING APPELLEE'S MOTION TO DISMISS FOR
LACK OF PROSECUTION (DOC. 4)
TIMOTHY S. BLACK UNITED STATES DISTRICT JUDGE
bankruptcy appeal is before the Court on Appellee's
motion to dismiss for lack of prosecution. (Doc. 4).
September 4, 2018, the Bankruptcy Court entered an Order
granting Appellee's motion to dismiss Appellants'
bankruptcy case. (Doc. 2-2). In the Order, the Bankruptcy
Court found that Appellants were “abusing the
bankruptcy process” to obstruct Appellee's
legitimate efforts to foreclose on its claim. (Id.
September 14, 2018, Appellants filed a Notice of Appeal,
seeking review of the Bankruptcy Court's Order. (Doc.
2-1). Since filing the Notice of Appeal, Appellants have not
taken any action to prosecute this bankruptcy appeal.
Appellants have not designated the record, filed a brief, nor
sought an extension of time.
February 14, 2019, Appellee filed a motion to dismiss for
lack of prosecution. (Doc. 4). In keeping with their previous
conduct, Appellants have not filed a brief in opposition to
Appellee's motion. As a result, Appellee's motion stands
unopposed. (See generally id).
Federal Rules of Bankruptcy Procedure set out the
requirements for appealing a federal bankruptcy court order:
The appellant must file a notice of appeal with the
bankruptcy court clerk within 14 days after entry of the
judgement underlying the appeal. Fed.R.Bankr.P. 8002(a).
Within 14 days of filing the notice of appeal, the appellant
must file a designation of items to be included in the
appellate record and a statement of issues to be addressed by
the reviewing court. Fed.R.Bankr.P. 8009(a). Once the
bankruptcy court has transferred these filings to the
district court, the appellant has 30 days to serve and file
an appellant brief. Fed.R.Bankr.P. 8018(a). The district
court may modify the timing requirements for appellant and
appellee briefs as it deems appropriate. Id.
Elsass v. JPMorgan Chase Bank, N.A., No. 2:18-CV-5,
2018 WL 3142000, at *2 (S.D. Ohio June 26, 2018)
district court can dismiss a bankruptcy appeal for lack of
prosecution when an appellant “has failed to follow the
Federal Rules of Bankruptcy Procedure, ” and, in doing
so, has shown “bad faith, negligence, or
indifference.” Elsass, 2018 WL 3142000, at *2;
accord Fed. R. Bankr. P. 8003(a)(2); Barclay v.
U.S. Tr., Hackett, 106 Fed.Appx. 293, 293-94 (6th Cir.
2004); Arnold v. G.E. Capital Auto Lease, Inc., 63
Fed.Appx. 188, 189 (6th Cir. 2003). A district court's
decision to dismiss a bankruptcy appeal for lack of
prosecution is reviewed for an abuse of discretion. See
Barclay, 106 Fed.Appx. at 294; accord In re
Lundahl, 109 Fed.Appx. 384, 386 (10th Cir. 2004).
bankruptcy appeal, Appellants have shown bad faith,
negligence, and indifference.
nine months have elapsed since Appellants filed their Notice
of Appeal. Notwithstanding this fact, Appellants have failed
to designate the record, filed a brief, or seek an extension
of time. Moreover, over four months have elapsed since
Appellee filed its motion to dismiss for lack of prosecution.