Summary
holding "appellant's neglect of this appeal for almost five months clearly warrants dismissal"
Summary of this case from Coan v. Fairfield Cnty. Bank Corp. (In re Jones)Opinion
Case No. 03-CV-1905 (FB)
October 10, 2003
NORMAN GLUCK Babylon, New York, for the Appellant
MARIANNE DEROSA, ESQ. Jericho, New York, for Creditor
MEMORANDUM AND ORDER
The Court having sua sponte examined the file and the docket sheet provided by the Clerk of the Court for this case, finds that appellant has failed to perfect his appeal because he has not complied with the Court's briefing schedule notice dated May 14, 2003 pursuant to Rule 8009(a) of the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rule"). The Court's briefing schedule notice required appellant to serve his brief by May 30, 2003, appellee's brief was to be served by June 13, 2003, and appellant's reply brief was to be served by June 27, 2003. Appellant was then to submit all briefs to the Court. Appellant, however, has not submitted any briefs nor communicated with the Court since the briefing schedule notice was mailed almost five months ago.
The Second Circuit has made it clear that the time limitations of Bankruptcy Rule 8009 are "not jurisdictional." In re Tampa Chain Co., Inc., 835 F.2d 54, 55 (2d Cir. 1987); see also In re Frank Santora Equip. Corp., 227 B.R. 206, 209 (E.D.N.Y. 1998). "Rather, the court should exercise discretion to determine whether dismissal is appropriate in the circumstances, and its discretion to dismiss will be affirmed unless it has abused its discretion". In re Tampa Chain Co., Inc., 835 F.2d at 55. This language tracks that of Bankruptcy Rule 8001, which provides that "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the district court . . . [d]eems appropriate/ which may include dismissal of the appeal/'
Other district courts routinely dismiss bankruptcy appeals based upon prolonged delays in submitting appellate briefs. See, e.g., In re Frank Santora Equip. Corp., 227 B.R. at 209 (five-month delay); In re Freidas, No. 94-CV-2687, 1996 WL 622210, at *1 (E.D.N.Y. Oct. 23, 1996) (two-month delay); In re Mangano, No. 95-CV-1027, 1996 WL 599717, at *1 (E.D.N.Y. Oct. 16, 1996) (six-month delay). In light of these cases, appellant's neglect of this appeal fur almost five months clearly warrants dismissal.
For the foregoing reasons, the appeal is dismissed.
SO ORDERED.