Opinion
CV 20-10980 FMOBK Case 17-12071 MB
09-27-2021
IN RE IVAN RENE MOORE, Debtor, v. WELLS FARGO BANK, N.A., et al ., Appellees. IVAN RENE MOORE, Appellant, Adv. Case No. 17-1088 MB
ORDER RE: DISMISSAL FOR LACK OF PROSECUTION
Fernando M. Olguin United States District Judge
On December 2, 2020, appellant Ivan Rene Moore (“appellant”) filed his Notice of Appeal, (Dkt. 1), challenging the Bankruptcy Court's Order of November 20, 2020, (Bankruptcy Adversary (“BK Adv.”) Dkt. 142). (See Dkt. 1, Notice of Appeal at 2). After the Clerk of the Bankruptcy Court issued a Document Discrepancy Regarding Notice of Transcript, (Dkt. 8; BK Adv. Dkt. 151), this court issued an Order to Show Cause Re: Dismissal for Lack of Prosecution (“OSC”), (Dkt. 9, Court's Order of February 3, 2021), ordering appellant to remedy his failure to comply with Fed.R.Bankr.P. 8009(b)(1) and/or explain why his case should not dismissed for noncompliance.
On February 17, 2021, appellant filed an “Opposition to the Order to Show Cause Issued By Court Dated 2/3/21, ” (Dkt. 10, “Opp. to OSC”), but remained in non-compliance with Fed.R.Bankr.P. 8009(b)(1). (See, generally, Dkt. & BK Adv. Dkt.). Appellant took no further action to perfect his appeal, so on March 10, 2021, the court issued another OSC Re: Dismissal for Lack of Prosecution (“Continued OSC”). (See Dkt. 11, Court's Order of March 10, 2021). The Continued OSC directed appellant to show cause why his appeal should not be dismissed for lack of prosecution for failure to file the documents required by the Federal Rules of Bankruptcy Procedure and warned appellant that noncompliance “shall result in this action being dismissed without prejudice[.]” (Id. at 2). On March 25, 2021, appellant filed a “Reply/Opposition to the Order from the Court Issued Dated [sic] 3/10/21.” (Dkt. 12, “Opp. to Continued OSC”). As of the filing date of this Order, approximately six months after the deadline set forth in the Continued OSC, (Dkt. 11), appellant still has not complied with Fed.R.Bankr.P. 8009(b)(1). (See, generally, Dkt. & BK Adv. Dkt.).
The court has reviewed appellant's Opposition to OSC and Opposition to Continued OSC and finds that there is no basis to justify appellant's failure to comply with the applicable Federal Rules of Bankruptcy and the court's orders. Appellant claims that on January 8, 2021, he “sent a full and complete request for the transcripts that relate to this appeal. (See Exhibit B)[.]” (Dkt. 10, Opp. to OSC at ECF 95) (bold omitted). Aside from there being no “Exhibit B” attached to the Opposition to OSC, appellant's claim that he “sent a full and complete request for the transcripts” is simply not supported by the record. As an initial matter, the Document Discrepancy Regarding Notice of Transcript, (Dkt. 8; BK Adv. Dkt. 151), issued by the Clerk of the Bankruptcy Court four days after appellant's January 8, 2021, Notice of Debtor's Request to Order Transcripts for Appeal, (BK Adv. Dkt. 149, “Notice of Transcript Request”), belies appellant's “full and complete” claim.
Appellant makes a similar “full and complete” claim in his Opposition to Continued OSC and refers alludes to the non-existent “Exhibit B.” (See Dkt. 12, at ECF 133). Appellant's argument is rejected for the same reasons as set forth in this order.
Further, the Bankruptcy Adversary Docket reflects that appellant filed a Notice of Transcript Request, (BK Adv. Dkt. 149), rather than a notice of paid transcript as required by Fed.R.Bankr.P. 8009(b)(1)(A) and (b)(4) (“At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.”). In other words, appellant's Notice of Transcript Request, (see BK Adv. Dkt. 149), is insufficient to establish that he paid for the transcripts. Had appellant paid for the transcripts he ordered, the court reporter would have filed an acknowledgment of receipt of a paid transcript order. See Fed.R.Bankr.P. 8010(a)(2)(A) (“Upon receiving an order for a transcript in accordance with Rule 8009(b), the reporter must file in the bankruptcy court an acknowledgment of the request that shows when it was received, and when the reporter expects to have the transcript completed.”). Here, the Bankruptcy Adversary Docket reflects no such acknowledgment. (See, generally, BK Adv. Dkt.).
Appellant claims to have “been in touch with the court reporter and she has not heard from the Bankruptcy Court Clerk[.]” (Dkt. 10, Opp. to OSC at ECF 95). Appellant also claims that “[t]he Court reporting service Hyatt Court Reporting only received (1) hearing date the 1/20/21 Digital Audio Data from the Bankruptcy Court Clerk's office requested by the appellant in this action[;]” appellant “has been in touch with the Hyatt court reporter service, and they have not received all the Digital Audio Data from the Bankruptcy Court Clerk requested by the appellant in this action[;]” and he “caused a letter to be sent to the United States Bankruptcy Clerk's office Woodland Hills Branch, on March 18th, 2021[, ]” but has “not received a response.” (Dkt. 12, Opp. to Continued OSC at ECF 133).
Appellant's claim about obtaining digital audio from a “1/20/21” hearing, (Dkt. 12, Opp. to Continued OSC at ECF 133), is irrelevant as it post-dates the December 2, 2020, filing of the instant Notice of Appeal, (Dkt. 1).
The court notes that appellant's declaration, (see Dkt. 12, Opp. to Continued OSC at ECF 133-34), is not signed, see L.R. 5-4.3.4(a)(3) (hand-signed signatures required for non-CM/ECF registered filers like appellant), and therefore does not comply with 28 U.S.C. § 1746 as required by the Continued OSC, (see Dkt. 11, at 2).
Putting aside the lack of credibility underlying appellant's claims, the claims themselves are irrelevant to the central issue of whether appellant has paid for the necessary transcripts.
For example, the court questions whether and why appellant would have to play middleman and submit, as he claims, requests to transfer digital audio files from the Bankruptcy Court to the court reporting/transcription service. Indeed, even if appellant's claim was credible, it is unlikely that such requests would be honored since no transcripts had been paid for. Thus, it is highly questionable that employees of a court reporting/transcription service would spend time coordinating with appellant the preparation of a hypothetical transcript order.
Despite the court's concerns about appellant's claims in his Opposition to OSC, (Dkt. 10), the court nevertheless exercised its discretion and gave appellant another opportunity to prosecute his appeal, and extended the deadline for compliance. (See Dkt. 11, Continued OSC). The court warned appellant that noncompliance with the new deadline would result in dismissal of the action. (See id. at 2). Again, appellant did not comply with the court's deadline, and instead made unsupported and irrelevant claims regarding efforts to contact the court reporting/transcription service and the Clerk of the Bankruptcy Court. (See Dkt. 12, Opp. to Continued OSC at ECF 133-34).
In Greco v. Stubenberg, 859 F.2d 1401 (9th Cir. 1988), the appellant challenged the district court's dismissal of his appeal of a bankruptcy court decision for failure to prosecute due to a “delay in procuring the relevant transcripts [that] was caused in part by [the] appellant's repeated failure to provide the funds necessary to cover the transcription expense.” Id. at 1404. The Ninth Circuit affirmed the dismissal, explaining that “[i]n determining whether to dismiss an appeal on [ ] grounds [such as failure to take requisite steps to prosecute an appeal], a district court must consider (1) alternative measures in lieu of dismissal, and (2) whether the conduct giving rise to the dismissal was caused entirely by the party's attorney.”Id.
The court refers to these as the “Greco factors.”
This court has been willing to excuse appellant's extreme tardiness in perfecting the appellate record. On two separate occasions, the court considered and provided appellant - though harboring justifiable concerns about the credibility of appellant's claims of diligence - with “alternative measures in lieu of dismissal[.]” Greco, 859 F.2d at 1404. Despite the goodwill extended by the court, appellant remains in non-compliance by refusing to pay for the transcripts necessary to move his appeal forward. Indeed, the record indicates that appellant attempted to conceal his lack of diligence by making irrelevant and specious claims about contacting the court reporter and the Clerk of the Bankruptcy Court. (See Dkt. 10, Opp. to OSC at ECF 95; Dkt. 12, Opp. to Continued OSC at ECF 133-34).
Appellant, no doubt, is familiar with the concept of court rules, deadlines, and procedure, having filed no less than 13 bankruptcy appeals in this judicial district, as well as four subsequent appeals to the Ninth Circuit:
This excludes the instant appeal, as well as any prior in civil cases in which appellant was a plaintiff.
“A court may take judicial notice of undisputed matters of public record, which may include court records available through PACER.” United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018); see Fed.R.Evid. 201. “PACER” stands for Public Access to Court Electronic Records. See Raygoza-Garcia, 902 F.3d at 998 n. 2.
1. Moore v. Hills (In re Moore), Case No. 20-10981 JWH.
2. Moore v. Wells Fargo Bank, N.A. (In re More),Case No. 20-5733 FMO;CA9 Case No. 21-55121.
3. Moore v. Ronald Hills (In re Moore), Case No. 20-1450 JWH.
4. Moore v. Wells Fargo Bank, N.A. (In re Moore), Case No. 19-1016 DOC.
5. Moore v. Barbour (In re Barbour), Case No. 17-5941 SVW (consolidated with Case Nos. 17-5942 SVW, 17-8741 SVW, 17-6926 SVW).
6. Moore v. Barbour (In re Barbour), Case No. 17-2859 CJC; CA9 Case No.
17-56584.
7. Moore v. Barbour (In re Barbour), Case No. 17-2857 SJO; CA9 Case No. 17-56914.
8. Moore v. Wells Fargo Bank, N.A. (In re Barbour), Case No. 17-1055 SJO.
9. Moore v. Wells Fargo Bank, N.A. (In re Barbour), Case No. 17-1051 SJO.
10. Moore v. U.S. Trustee (In re Moore), Case No. 16-9540 AB; CA9 Case No. 18-55165.
In this appeal, the Deficiency Notice re: Notice of Transcript was issued on January 12, 2021, followed by an Order to Show Cause Regarding Appellant's Failure to File Notice of Transcript on April 19, 2021. See In re Moore, Case No. 20-10981 JWH (C.D. Cal. 2021) (Dkt. Nos. 6 & 7).
Though appellant spelled his last name as “More” in this appeal, appellant (“Ivan Rene More”) is the same party (“Ivan Rene Moore”) who prosecuted all these appeals since the “represented by” entry in all dockets reflect the same “Ivan Rene Moore” proceeding pro se.
Dismissed for failure to prosecute on January 12, 2021. See In re More, Case No. CV 20-5733 FMO, Dkt. 14 (C.D. Cal. 2021).
All four member cases were dismissed for failure to prosecute on December 20, 2017. See In re Barbour, Case No. CV 17-5941 SVW, Dkt. 16 (C.D. Cal. 2017) (“The appellant . . . has shown a complete disregard for this Court, its orders and deadlines. The appellant has clearly demonstrated a complete lack of interest in pursing this matter. [¶] Therefore, the instant case and all consolidated cases are dismissed.”); In re Barbour, Case No. 17-5942 SVW, Dkt. 13 (C.D. Cal. 2017); In re Barbour, Case No. 17-8741 SVW, Dkt. 8 (C.D. Cal. 2017); In re Barbour, Case No. 17-6926 SVW, Dkt. 15 (C.D. Cal. 2017).
Appeal to the Ninth Circuit dismissed for failure to prosecute on January 25, 2018. See In re Barbour, Case No. 17-56584, Dkt. 8 (9th Cir. 2018).
Dismissed for failure to prosecute on January 12, 2018. See In re Barbour, Case No. CV 17-1055 SJO, Dkt. 17 (C.D. Cal. 2018).
Dismissed for failure to prosecute on January 11, 2018. See In re Barbour, Case No. CV 17-1051 SJO, Dkt. 29 (C.D. Cal. 2018).
Eight of these appeals (seven in district court and one in the Ninth Circuit) were dismissed for failure to prosecute, evincing both appellant's pervasive lack of diligence and his awareness of the consequences of such dilatory conduct.
See In re More, Case No. CV 20-5733 FMO, Dkt. 14 (C.D. Cal. 2021); In re Barbour, Case No. 17-5941 SVW, Dkt. 16 (C.D. Cal. 2017); In re Barbour, Case No. 17-5942 SVW, Dkt. 13 (C.D. Cal. 2017); In re Barbour, Case No. 17-8741 SVW, Dkt. 8 (C.D. Cal. 2017); In re Barbour, Case No. 17-6926 SVW, Dkt. 15 (C.D. Cal. 2017); In re Barbour, Case No. CV 17-1055 SJO, Dkt. 17 (C.D. Cal. 2018); In re Barbour, Case No. CV 17-1051 SJO, Dkt. 29 (C.D. Cal. 2018).
See In re Barbour, Case No. 17-56584, Dkt. 8 (9th Cir. 2018).
The court continues to expend limited judicial resources to manage the case and issue orders in an attempt to prod along a party who seems to treat the “filing of the notice of appeal . . . merely as a taking of an option to appeal the case should appellant[ ] later determine to do so.” Taylor v. S & D Enters., Ltd., 601 F.2d 175, 176 (5th Cir. 1979) (per curiam) (dismissing the appeal due to the inexcusable “failure to order the transcript in anything approaching a timely fashion”). Here, appellant was warned on at least two occasions that his appeal was in danger of being dismissed and/or would be dismissed for failure to pay the transcript fees or otherwise perfect his appeal. (See Dkt. 9, Court's Order of February 3, 2021 at 2); (Dkt. 11, Court's Order of March 10, 2021 at 2); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (“[A] district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the ‘consideration of alternatives' requirement.”). Briefing cannot commence - i.e., the case cannot move forward - until appellant pays the transcript fees and otherwise perfects the appellate record in accordance with the applicable rules. See Fed.R.Bankr.P. 8018(a)(1) (“30 days after the docketing of notice that the record has been transmitted or is available electronically.”). Appellant's dilatory conduct in this case - as shown by his failures to comply with the court's orders and deadlines despite repeated warnings that dismissal would be a consequence of noncompliance - “forecloses any assumption that a new extension would be fruitful.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Finally, the eight prior dismissals of appellant's cases for failure to prosecute - one of them by this court - strongly underscore the court's belief that additional warnings and extensions will prove futile.
The second Greco factor (comparative fault of counsel) is not applicable here. Appellant is not represented by counsel, so he alone bears blame for not complying with Fed.R.Bankr.P. 8009. See Greco, 859 F.2d at 1404 (stating that though represented by counsel, the “delay in procuring the relevant transcripts was caused in part by [the] appellant's repeated failure to provide the funds necessary to cover the transcription expense”).
See In re More, Case No. CV 20-5733 FMO, Dkt. 14 (C.D. Cal. 2021) (dismissing appeal on January 12, 2021, for failure to prosecute due to appellant's failure to pay for necessary transcripts).
In short, this appeal is dismissed for failure to prosecute. See, e.g., Greco, 859 F.2d at 1404 (holding that district court did not abuse its discretion by dismissing an appeal from the bankruptcy court where the appellant failed to comply with court deadlines to procure requisite transcripts despite repeated warnings that failure to comply would result in dismissal); Sw. Administrators, Inc. v. Lopez, 781 F.2d 1378, 1380 (9th Cir. 1986) (“This circuit and other circuits have held that failure to provide a trial transcript warrants dismissal of the appeal.”); In re Flowers, 716 Fed.Appx. 657, 657-58 (9th Cir. 2018) (affirming dismissal for repeated failures to comply with court deadlines); In re Stasz, 520 Fed.Appx. 543, 544 (9th Cir. 2013) (same); see also Matter of Scheri, 51 F.3d 71, 74 (7th Cir. 1995) (“When district courts have found dismissal to be the appropriate sanction because the record demonstrates a consistent pattern of dilatoriness or multiple failures to comply with deadlines, courts of appeals have not hesitated to affirm the district court's exercise of discretion.”); In re Champion, 895 F.2d 490, 492 (8th Cir. 1990) (per curiam) (holding no abuse of discretion to dismiss when the pro se appellant repeatedly failed to make required filings).
This order is not intended . Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT:
1. The instant appeal is dismissed without prejudice for failure to prosecute.
2. Judgment shall be entered accordingly.