Opinion
No. C-03-1936 SC
November 6, 2003
ORDER DISMISSING APPEAL
I. INTRODUCTION
Appellee E. Lynn Schoenmann ("Schoenmann" or "Appellee"), Trustee in Bankruptcy of the estate of the above Debtor, moves for an order dismissing the appeal brought by Stephen J. Williams ("Williams" or "Appellant") in the above bankruptcy proceeding for his failure to comply with this Court's briefing order and otherwise prosecute his appeal, and for his failure to provide the District Court with an adequate record on appeal. For the reasons stated below, Appellee's Motion to Dismiss is hereby granted, and Williams' appeal is hereby dismissed without prejudice. II. BACKGROUND
On April 10, 2003, Williams filed a notice of appeal concerning the Bankruptcy Court's order disallowing his claim in the bankruptcy case of G C, LLP. Mr. Williams is a pro se litigant and is an attorney. The Clerk of the United States Bankruptcy Court served notice of the appeal on April 10, 2003. On May 8, 2003, the Clerk of the United States Bankruptcy Court issued a Notice of Failure to Perfect Appeal based on Mr. Williams' failure to file a statement of issues on appeal and a designation of record on appeal, and for failing to pay the filing fee for the notice of appeal. On or about May 21, 2003, Williams tendered the filing fee and filed a single statement of the issues on appeal. Williams did not file a designation of record on appeal. On May 29, 2003, the Clerk of the United States Bankruptcy Court transmitted to this Court the Certificate of Record noting that no transcript was prepared by the clerk.
On June 3, 2003, the District Court issued its Notice of Briefing, requiring that Williams file his opening brief by July 3, 2003 and Appellee file her opening brief 20 days later. Ex. C to Maher Decl. To this day, Williams has not filed an opening brief with this Court. Moreover, no transcripts have been prepared for this Court, nor has there been a designation of any record for appeal.
On September 18, 2003, more than three months after Williams' opening brief was due, Williams filed a "Motion to Change Time" before this Court, which stated that he had discovered that "there is no record" on appeal and therefore a new briefing schedule needed to be set. That motion was denied by this Court on September 22, 2003. Also on September 18, 2003, Williams filed a motion before the Bankruptcy Court asking it to "extend the time in which he is allowed to submit the designation of the Record on Appeal to the District Court." The Bankruptcy Court denied Williams' motion, claiming that it lacked jurisdiction over his request because the record had already been transmitted to the District Court.
On September 22, 2003, Appellee brought a motion to dismiss Williams' appeal for failure to prosecute, for failure to provide an adequate record on appeal, and for failure to file an opening brief. Williams' only opposition to this motion is that Appellee apparently failed to comply with the requirements of Civil Local Rule 7-2(a) in that Appellee failed to set a hearing date for said motion.
The Court, having reviewed all of the papers in this matter, and for the reasons discussed below, grants Appellee's Motion to Dimiss and dismisses Williams1 appeal without prejudice.
III. DISCUSSION
Rule 8006-1 of the Bankruptcy Local Rules states, "The record on appeal shall include a transcript of the hearing or a summary thereof agreed upon by all parties." Rule 8011-1 provides, "If the appellant shall fail to perfect the appeal in the manner prescribed by [rule] 8006, any appellee may file a motion in the district court to dismiss the appeal."
In this case, Appellant has failed to designate a record on appeal, he has failed to provide us any transcript of the earlier hearing, and he has failed to file his opening brief. Thus, he is in violation of the Bankruptcy Local Rules, the Civil Local Rules, and this Court's Notice of Briefing. Moreover, having designated no record on appeal, there is nothing for this Court to review. Therefore, Williams1 appeal is dismissed without prejudice. See Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) ("[l]itigants should be aware that failure to provide transcripts or other required materials may well result in dismissal of the appeal or other sanctions").
IV. CONCLUSION
This Court HEREBY DISMISSES without prejudice Appellant's appeal for failure to provide an adequate record and for failure to file an opening brief.