Hill, In re
| Decision Date | 12 November 1985 |
| Docket Number | No. 84-4226,84-4226 |
| Citation | 775 F.2d 1385 |
| Parties | , Bankr. L. Rep. P 70,852 In re Frank James HILL, Sally Ann Hill, d/b/a Universal Life Church, Debtors. Robert W. MYERS, Trustee, Plaintiff-Appellant, v. Joel C. SHEKTER, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Magar E. Magar, Elliott Holden, Portland, Or., for plaintiff-appellant.
Robert M. Vetto, Jr., Portland, Or., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding.
Before: JAMES R. BROWNING, Chief Judge, ALARCON, Circuit Judge, and THOMPSON, * District Judge.
This is an appeal from an order of the district court which dismissed an appeal from the bankruptcy court. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.
The bankruptcy action was a petition by the trustee to avoid and set aside a transfer of real property. Timely appeal was noticed from the adverse decision of the bankruptcy judge. The appeal was docketed in the district court on June 27, 1984, and notice was sent by the district court clerk that pursuant to Bankruptcy Rule 8009 the appellant's brief was due in fifteen days and that pursuant to local practice briefs should be filed with the clerk of the bankruptcy court. The trustee failed to file a brief, which was due on July 12, 1984, and on July 19, 1984 defendants served and filed with the clerk of the district court a motion to dismiss the appeal. On the next day, July 20, 1984, the trustee (appellant) filed his brief with the clerk of the district court. The trustee did not at any time file a response to the motion to dismiss the appeal. On August 3, 1984, the defendants' (appellees') brief was filed with the clerk of the bankruptcy court and eventually was transferred to the clerk of the district court on September 17, 1984. Meanwhile, the district court on September 12, 1984, granted the motion to dismiss the appeal. On September 17, 1984, the trustee filed a motion to reconsider the order to dismiss and to permit the late filing of the brief. In this document the trustee for the first time attempted an explanation of his default and asserted, among other things, that he had not received the notice of docketing the appeal and that he believed the appellees had waived or withdrawn the motion to dismiss by filing the answering brief on the merits on August 3, 1984. The motion for reconsideration was denied by minute order entered on October 3, 1984.
With respect to appeals from the bankruptcy court, Rule 8001(a) of the Bankruptcy Rules, provides:
An appeal from a final judgment, order, or decree of a bankruptcy judge to a district court or bankruptcy appellate panel shall be taken by filing a notice of appeal with the clerk of the bankruptcy court within the time allowed by Rule 8002. Failure 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 or bankruptcy appellate panel deems appropriate, which may include dismissal of the appeal.
The district court when it dismissed the appeal relied on the foregoing Rule and stated in its order:
This court is aware that the sanction of dismissal is severe. However, this court is concerned that rules of procedure be followed as strictly in bankruptcy cases as in district court cases. In the present case, plaintiff has offered no explanation whatsoever for his failure to file his brief in a timely manner. Furthermore, plaintiff did not request leave of this court for permission to file the brief late. Hence, although dismissal is a severe sanction, and although it is within this court's discretion to determine whether dismissal is appropriate, plaintiff's failure to come forward with any explanation for the late filing compels the court to grant defendants' motion.
(Emphasis in original).
We review such an order of a district court for abuse of discretion.
It is obvious that the action taken by the district court was not without some justification. We, nevertheless, are inclined to agree with the decision of the Tenth Circuit in In re Russell, 746 F.2d 1419 (10th Cir.1984). Factually the case is on all fours with the instant case with the sole exception that there had been no motion to dismiss the appeal from the bankruptcy court and the district court had sua sponte ordered the dismissal. Remanding the case for reconsideration, the Russell court said:
It is apparent from the brief filed with the motion to vacate that the fault for the delay was with the attorney. The dismissal of the appeal was a sanction against the litigant and the attorney. Obviously dismissal is a possible sanction, a drastic sanction, and one to be used in the proper circumstances. However there is nothing in the record before us to indicate it was proper in this case, and nothing so appearing, we must consider the dismissal to have been an abuse of discretion.
We have recently decided several en banc cases concerning sanctions. These include, In re Jay C. Baker and Michael J. Carson, 744 F.2d 1438 (10th Cir. [1984], and D & H Marketers v. Freedom Oil & Gas, Inc., 744 F.2d 1443...
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