Opinion
Bankruptcy No. 03-21660, Adversary Proceeding No. 03-2185, Case No. 2:04 CV 46 PGC.
September 1, 2004
ORDER DISMISSING APPEAL AND CASE
Ms. Lundahl's underlying bankruptcy case was dismissed with prejudice by the bankruptcy court on December 24, 2003. The bankruptcy court also dismissed this adversary proceeding without prejudice, and Ms. Lundahl subsequently filed this appeal. The court GRANTS the motion to dismiss this appeal on three separate grounds: (1) improper service of process; (2) improper prosecution of her appeal; and (3) the Bankruptcy Court correctly dismissed this adversary proceeding.
See In re Holli Lundahl, 307 B.R. 233.
Service of Process
Ms. Lundahl failed to properly serve all of the defendants in this case. Based on the court records, only Eli Lilly has been properly served. Advanced Cardiovascular Systems, Inc., John Leahy, Lori Pivo, Connie Harrision, Marsha Whitley, Patricia Wayman, Merrelin Bland, Beverly Gilsdorf, Connie Elliano and Deb McDaniel have never been properly served with process in this adversary proceeding in the over eight months since this appeal was filed. Ms. Lundahl has filed no motions seeking extensions of time for service and provides no explanation for this lapse. Though this court typically gives deference to parties proceeding pro se, Ms. Lundahl has filed thirty lawsuits in federal district court in Utah. By now she should be familiar with the mandates of Rule 4, and accordingly the claims against these unserved defendants are dismissed without prejudice. Prosecution of Appeal
See Fed.R.Civ.Pro. 4; see also Fed.R.Bank.Pro. 7004(a).
Ms. Lundahl filed this appeal on January 5, 2004. Ms. Lundahl did not file a timely designation of the items to be included in the record on appeal and a statement of the issues to be presented on appeal within the required ten days of filing of the notice of her appeal. Ms. Lundahl filed her "Designation of the Record And Statement of Issues on Appeal" on Janaury 30, 2004. She subsequently filed her Memorandum in Opposition to Lilly's Memorandum to dismiss Appeal and Request to Schedule a Date for the Filig of an Opening Brief on February 11, 2004. Notably the designation of the record did not include any records from this adversary proceeding, only including items from the underlying bankruptcy proceeding. Because Ms. Lundahl failed to follow the required procedures the court dismisses this adversary proceeding without prejudice.
See Fed.R.Bank.Pro. 8006.
Bankruptcy Court's Ruling
The Bankruptcy Court properly dismissed Ms. Lundahl's adversary proceeding in this case. Once the Bankruptcy Court dismissed the underlying bankruptcy proceeding, it lacked the jurisdiction to hear this adversary proceeding. The Bankruptcy Court dismissed this proceeding without prejudice, and this court does as well.
See Smith v. Commercial Banking Corp., (In re Smith), 866 F.2d 576, 580 (3rd Cir. 1989); in re Statistical Tabulatin Corp., 60 F.3d 1286, 1289 (7th Cir. 1995); Querner v. Querner (In re Querner), 7 F.3d 1199, 1201-02 (5th Cir. 1993).
Motion to Extend Time for Plaintiff to Respond Motion to Continue or Stay All Proceedings
On April 4, 2004, over four months after she commenced this appeal, Ms. Lundahl sought leave of this court to extend her time to respond to the pending motions in this case. The court DENIES this motion finding no good cause shown. On May 3, 2004, Ms. Lundahl sought a stay of all proceedings in this court while she pursued her pending appeal before the Tenth Circuit. The court DENIES this motion, finding no good cause shown.
Conclusion
The court GRANTS the motion to dismiss this appeal (#3-1). The court also GRANTS the second motion to dismiss this appeal (#11-1). The court DENIES the motion to extend time (#13-1). The court DENIES the motion to stay all proceedings (#18-1). This case is dismissed without prejudice.
SO ORDERED.