Opinion
CV-N-03-0128-DWH(VPC)
June 30, 2003
ORDER
Before the court is Appellee's unopposed motion to dismiss (#6). Appellee contends this appeal should be dismissed with prejudice because appellant failed to comply with F.R.Bankr.P. 8006. For the reasons set out below, the court agrees with appellee.
I. Factual Background
This bankruptcy appeal concerns whether the plan committee, appellee, appropriately rejected appellant's claim against the bankruptcy estate as untimely. Specifically, appellant has appealed the bankruptcy court's denial of her motion to reconsider the disallowance of her proof of claim as untimely. ( See Transmission of Record (#1b-d).)
Appellant initially filed her appeal to be heard by the Bankruptcy Appellate Panel, but the appellee elected for this court to hear the dispute and it was received in this court on March 5, 2003. On March 6, 2003, this court issued a minute order directing the pates to file their designations of the record as provided under F.R.Bankr.P. 8006. (Mins. of Ct. (#4).)
Since filing her notice of appeal in February of 2003, appellant has not taken any further steps toward perfecting the appeal. ( See Notice of Appeal (#1b).)
II. Analysis
Appellee requests that the court dismiss this appeal with prejudice for appellant's failure to comply with F.R.Bankr.P. 8006. ( See Appellee's Mot. (#6).) The court will grant appellee's request.
Pursuant to Rule 8006, appellant must designate the record for appeal within ten days of filing the notice of appeal. Under federal and local rules, the court may dismiss an appeal if an appellant fails to follow the rules for filing an appeal, including Rule 8006. See F.R.Bankr.P. 8001, LR 8070.
In In re Fitzsimmons, the Ninth Circuit set out the following guidelines for determining whether a party's conduct warrants dismissal. 920 F.2d 1468 (9th Cir. 1990). Prior to dismissal, the court usually must consider the availability of alternative sanctions and, to an extent, the relative fault of the client and the attorney. However, in egregious circumstances, the court may dismiss an appeal without considering either. A party's bad faith in failing to comply with Rule 8006 constitutes egregious circumstances which warrant dismissal. Finally, if a court determines dismissal is appropriate, it must set out a sufficient explanation for its decision. 920 F.2d at 1474-75.
Appellee alleges that appellant's pattern of delay constitutes bad faith warranting dismissal of this appeal. (Appellee's Mot. (#6), at 6-7.) Bad faith "refers only to conduct . . . which constitutes a protracted policy of delay." Fitzsimmons, 920 F.2d at 1474 n. 6. In making this determination, the court should consider the extent of a party's dilatory conduct and any offered explanations for their delays. In re Aspen Healthcare, Inc., 265 B.R. 442 44749 (N.D. Cal. 2001).
The court finds appellant's conduct amounts to bad faith. Appellant filed her notice of appeal on February 20. 2003 and the appeal was transferred to this court March 5, 2003. Pursuant to F.R.Bankr.P. 8006. the designation of record should have been filed no later than March 20, 2003 — ten days after this court's minute order regarding Rule 8006. To date, appellant has not filed a designation of the record and has not opposed this motion or otherwise offered an explanation for this delay. Moreover, appellant's appeal requests reconsideration of an order denying her claim as untimely. This further evidences appellant's pattern of delays. Taken together, the court finds that appellant has acted in bad faith and dismissal is appropriate.
In fact, appellant sought reconsideration based upon her attorney's failure to oppose the appellee's initial disallowance of her untimely claim. (See Bankr. Ct. Order Re: Reconsideration (#1d).)
III. Conclusion
Accordingly, IT IS ORDERED that Appellee's motion to dismiss (#6) be GRANTED. IT IS FURTHER ORDERED that this action be DISMISSED WITH PREJUDICE. The clerk shall enter judgment accordingly.