Opinion
CASE NO. 07-CV-1090 W (LSP).
October 22, 2007
On June 13, 2007, Appellants James and Judy Kennan elected to have this court hear an appeal from the United States Bankruptcy Court. On August 27, 2007, the Keenans lodged their opening brief with the court. Respondents filed a motion to dismiss the appeal for failure to lodge a record on appeal or cite to it. Because the Keenans failed to lodge a record, but nevertheless have shown good cause for the failure, the court will GRANT the motion to strike and GRANT leave to file an amended opening brief.
Bankruptcy Rule 8010 establishes the guidelines for filing appellate briefs in bankruptcy cases. Several subsections of the rule presuppose that an appellant must have lodged a record on appeal. Bankr. R. 8010(d)-(e) ("There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record. . . . The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to parts of the record relied upon.").
The Keenans admittedly failed to comply with this rule, however, they responded with an affidavit explaining why the appellate record never appeared on the docket until October 2. (Henein Decl. at 1-2.) Further, the Keenans filed a motion for leave to file an amended opening brief. Respondents note that the Keenans never pledged to comply with Rule 8010 and argue that further delay will prejudice the creditors and the bankruptcy estate.
While the court does not, as a matter of course, waive procedural rules — even for pro se litigants — it does favor resolving disputes on the merits. Further, nothing in the Respondents' reply suggests a further delay of one to two months will unduly prejudice the creditors or the estate.
Therefore, the court hereby ORDERS as follows:November 12, 2007 November 26, 2007 December 3, 2007
• The Appellants' opening brief is due . The court cautions the Keenans to comply with all procedural rules. • The Appellees' response is due . • The Appellants' reply is due . The court will take the briefs under submission and rule thereafter.
IT IS SO ORDERED.