Opinion
Civil Action No. DKC 15-2665
04-22-2016
IN RE: ELIZABETH JULIA PAWLAK ELIZABETH JULIA PAWLAK Appellant v. UNITED STATES DEPARTMENT OF EDUCATION, et al. Appellees
MEMORANDUM OPINION
On September 9, 2015, appellant Elizabeth J. Pawlak ("Appellant") filed an appeal from an order of Bankruptcy Judge Wendelin I. Lipp granting default judgment in favor of Appellee United States Department of Education ("Appellee"). (ECF No. 1). Appellant has filed several subsequent motions. (ECF Nos. 3; 6; 7; 8). On April 20, 2016, Appellant filed a motion to remand this action to bankruptcy court. (ECF No. 9). Appellant filed two exhibits under seal with her motion to remand, which are docketed as ECF Nos. 10 and 10-1. For the following reasons, Appellant's motion to remand will be granted.
Although not readily discernable from her motion, it appears that Appellant seeks to remand this action to bankruptcy court in order to supplement the record in light of new circumstances. (See ECF No. 10-1). Such a motion, while styled as a motion to remand, is effectively seeking voluntary dismissal of this appeal to allow Appellant to continue the proceeding in bankruptcy court. Federal Rule of Bankruptcy Procedure 8023 governs voluntary dismissals of bankruptcy appeals. The rule provides: "The clerk of the district court or [Bankruptcy Appellate Panel ("BAP")] must dismiss an appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. An appeal may be dismissed on the appellant's motion on terms agreed to by the parties or fixed by the district court or BAP" (emphasis added). "An appellant's motion to voluntarily dismiss its own appeal is generally granted, although courts of appeal have the discretionary authority not to dismiss the case in appropriate circumstances." HCA Health Servs. Of Va. V. Metro. Life Ins. Co., 957 F.2d 120, 123 (4th Cir. 1991).
Fed.R.Bankr.P. 8023 is similar to Federal Rule of Appellate Procedure 42(b), which provides: "The circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. . . . An appeal may be dismissed on the appellant's motion on terms agreed to by the parties or fixed by the court." --------
Here, Appellant avers that counsel for Appellee does not object to her motion to remand. (See ECF No. 9, at 1). Plaintiff attaches, as a sealed exhibit, an e-mail from Appellee's counsel effectively consenting to the motion. (ECF No. 10-1). Moreover, courts in other districts have remanded bankruptcy appeals under similar circumstances, even when the appellee opposes the motion. See, e.g., In re Earth Structures, Inc., No. 7:12-1958-TMC, 2013 WL 145033, at *2 (D.S.C. Jan. 14, 2013) (granting an appellant's motion to remand in light of "new evidence"). Accordingly, Appellant's motion to remand will be granted. The other pending motions will be denied as moot. A separate order will follow.
/s/_________
DEBORAH K. CHASANOW
United States District Judge