Opinion
BK Case No. 99-40740, Adversary Case No. 99-6317, District Crt. Case No. CV-01-365-E-BLW.
March 18, 2002
ORDER AND SECOND AMENDED SCHEDULING ORDER
The Court has before it Defendant-Respondent J.R. Simplot Co.'s Motion to Dismiss (Docket No. 4), Plaintiff-Appellant Agricredit Acceptance's Motion to Extend Time to File Brief (Docket No. 11) and its Second Motion to Extend Time to File Brief (Docket No. 10). After careful consideration of the issues involved, the Court has decided to deny the motion to dismiss, grant the motion to extend, grant the second motion to extend, and amend the scheduling order.
The notice of appeal from the Bankruptcy Court in this case was filed on June 26, 2001. The Clerk of the Court entered the appeal on the docket on July 24, 2001. Fed.R.Bank.P. 8009 requires a party to file its opening brief within fifteen (15) days after entry of the appeal on the docket. See Fed.R.Bank.P. 8009(a)(1). The district court can alter the fifteen (15) day deadline by local rule or by order. See Fed.R. Bk P. 8009(a). The United States District Court for the District of Idaho has done so. The District of Idaho's Third Amended General Order No. 38 provides that the deadline for filing appellant's opening brief shall be forty (40) days.
It has been seven months since the Clerk of the Court entered the appeal on this docket, and Agricredit has not yet filed its opening brief. Simplot has moved this court to dismiss the appeal for failure to timely prosecute and for failure to comply with the requirements of Bankruptcy Rule 8001 and the General Orders of the District of Idaho. Although the General Orders provide for a forty (40) day deadline for filing opening briefs, by practice and procedure the Court normally sets that deadline by scheduling order. The Court inadvertently failed to provide a scheduling order in this case until January 18, 2002. In the scheduling order, the Court gave Agricredit until February 15, 2002 to file its opening brief. On February 15, 2002, Agricredit requested an extension of time until February 25, 2002 to file its brief. On February 25, 2002, Agricredit again requested an extension of time until March 4, 2002 to file its brief. Agricredit has had difficulty meeting its deadlines because of computer problems and the need to cite carefully to an extensive record.
Bankruptcy Rule 8001(a) grants the Court with the authority to dismiss appeals for non-prosecution. See In re Donovan, 871 F.2d 807, 808 (9th Cir. 1989). Such a dismissal, however, "constitutes an abuse of discretion if the court fails to consider both alternative sanctions and the relative culpability of the appellant and his attorney, because dismissal may inappropriately punish the appellant for the neglect of his counsel." See id.
Given that the Court's normal practice and procedure is to issue a scheduling order providing the parties with applicable deadlines, the Court finds that it would be an abuse of discretion for it to dismiss this case under these circumstances. Agricredit's attorney's behavior does not appear to have been "neglectful" in this case because he was only adhering to the Court's normal procedures for handling bankruptcy appeals. In addition, a dismissal would inappropriately punish Agricredit as opposed to its attorney.
The Court also finds that Agricredit's two motions for extension of time were timely and for good cause. Accordingly,
NOW THEREFORE IT IS HEREBY ORDERED that Defendant-Respondent's Motion to Dismiss (Docket No. 4) shall be, and the same is hereby, DENIED.
IT IS FURTHER ORDERED that Plaintiff-Appellant's Motion to Extend Time to File Brief (Docket No. NOT YET ASSIGNED) and its Second Motion to Extend Time to File Brief (Docket No. 10) shall be, and the same are hereby, GRANTED.
IT IS FURTHER ORDERED that the Court's Amended Briefing Schedule Order (Docket No. 8) shall be, and the same is hereby, AMENDED as follows:
1. Plaintiff-Appellant's opening brief shall be due NO LATER THAN Monday, March 4, 2002 at 12:00 p.m.
2. Defendant-Respondent's response brief shall be due NO LATER THAN Monday, March 18, 2002 at 12:00 p.m.
3. Plaintiff-Appellant's reply brief shall be due NO LATER THAN Wednesday, March 20, 2002 at 12:00 p.m.