Opinion
04 Civ. 4897 (DAB).
January 20, 2005
ORDER
The Court is in receipt of correspondence from the Parties.
Appellant filed a Notice of Appeal on April 19, 2004. On June 23, 2004, the appeal was docketed by the Clerk of the Court for the Southern District of New York and assigned to this Court.
In response to Appellant's letter requesting leave to file a motion to adjourn the appeal and lift the automatic stay, Appellees have objected and request permission to file a motion to dismiss the appeal, citing untimeliness on the part of Appellant.
In his letter to the Court, dated January 4, 2005, Appellant informed the Court that he had not received the required notice under Bankruptcy Rule 8007(b) but that he knew the appeal was docketed and assigned to this Court. He states that he did not submit a brief in compliance with Bankruptcy Rule 8009 because of this lack of notice from the Clerk of the Court.
Appellant also states in his letter that he did not file an appeal because a law clerk in Chambers informed him that he was to wait until receipt of the notice of appeal from the Clerk of the Court. The Court has no record of this communication, and also does not have any record of a telephone call being placed to Chambers "several weeks ago," according to Appellant, where law clerks allegedly informed Appellant that no notice had been sent.
Appellees correctly point out that, "Although Rule 8007 defines the responsibilities of the clerk with respect to docketing the appeal, Rule 8009 is unambiguous with respect to the duty of an appellant to file an appellant's brief within 15 days of the docketing of the appeal." (Appellees' Letter dated Jan. 11, 2005.)
It is within the Court's discretion to dismiss an appeal for failure to comply with the time limits imposed by Rule 8009 of the Federal Rules of Bankruptcy, which states that "[t]he appellant shall serve and file a brief within 15 days after an entry of the appeal on the docket". Although the time limitations set forth in Rule 8009 are not jurisdictional, a court may dismiss an appeal in appropriate circumstances, such as when the Appellant has acted in bad faith, negligently, indifferently, or with dilatoriness. See In re MacInnis, 98 Civ. 2894, 1998 WL 40972, at *3 (S.D.N.Y. 1998); In re Vega, 93 Civ. 0083, 1995 U.S. WL 254368, at *2.
This Court has stated that though "an appellant's failure to receive notice of the docketing of the record on appeal . . . may constitute excusable neglect, . . . this argument no longer applies once the appellant learns of the docketing." In re Futterman, No. 99 Civ. 8793 (DAB), 2001 WL 282716, at *2 (S.D.N.Y. Mar. 21, 2001) (internal citation and quotations omitted).
Although courts are to view pleadings submitting by pro se litigants liberally, and to not impair them by the harsh application of technical rules, pro se litigants are "not exempt . . . from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citation and internal quotations omitted). The filing of a brief pursuant to Rule 8009 of the Federal Rules of Bankruptcy is certainly a "relevant rule of procedural law."
The Court finds that the Appellant knew of the docketing of the appeal and failed to file an appeal within the time period set forth in Rule 8009. Appellant acted negligently and with dilatoriness.
Accordingly, the appeal is dismissed for failure to file in a timely fashion.
SO ORDERED.