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Nelson v. Jackson

United States District Court, D. Maryland

March 23, 2016

RAYMON K. NELSON, Appellant,
v.
CLINTON JACKSON, Appellee.

MEMORANDUM

Ellen Lipton Hollander United States District Judge

On December 29, 2015, Raymon K. Nelson, appellant, noted an appeal from an order of the United States Bankruptcy Court for the District of Maryland. ECF 1. On January 21, 2016, the Clerk docketed Appellant's Designation of Record (ECF 2) and Appellee's Designation of Record. ECF 3. By letter of January 22, 2016, the Clerk notified the parties that appellant's brief was due within thirty days from the date of docketing of the Designation of Record. ECF 4 at 1. The Clerk also stated, in relevant part, id.:

One or more of the parties in this case is not represented by counsel ("pro se"). Pro se parties are to file and serve documents in paper format. The court will scan and electronically file any documents submitted by a pro se party unless a particular document is exempt from electronic filing. The scanned document shall constitute the official court record. The court will mail paper copies of any orders or other documents entered by the court to any pro se party. Counsel shall file electronically with the court and serve paper copies of all documents on any pro se party. Documents filed electronically must include a certificate of service stating when and how a paper copy was served on any pro se party.

On February 25, 2016, appellant filed a "Motion to Enlarge Time to File Appellant's Brief (the "Motion"). ECF 5. As the Motion did not reference Local Rule 105.9, [1] my Chambers contacted appellant's counsel to inquire if he complied with Local Rule 105.9. On February 29, 2016, appellant filed an "Amended Motion to Enlarge Time to File Appellant's Brief (the "Amended Motion"). ECF 6. According to the Amended Motion, id. at 1:

The Appellant hereby certifies pursuant to the local rules that an attempt was made to obtain the Consent of the Appellee to the Motion to Enlarge Time to File Appellant's Brief. The Appellee is an unrepresented party. Attempt was made via telephone deemed "out-of-service." A further attempt was made via e-mail. The Appellee did not respond to the appellant's attempt to obtain Consent to the Motion.

By Order of February 29, 2016 (ECF 7), I granted the Amended Motion (ECF 6), enlarging the time to file appellant's brief by fourteen days. However, my Order also provided that, by March 7, 2016, "appellee may move to rescind this Order on the ground that it was improvidently granted." ECF 7 at 1.

On March 2, 2016, appellee, Clinton Jackson, who is self-represented, [2] filed a "Motion to Rescind Order, Dated 2/29/16, Granting Amended Motion to Enlarge Time to File Appellant's Brief (the "Motion to Rescind"). ECF 8. Mr. Jackson submits that the representations in the Amended Motion are "totally false, frivolous and without merit, with the exception that the undersigned Appellee is Pro Se." Id. ¶ 1. By Order of March 3, 2016 (ECF 9), I directed the appellant to respond to the Motion to Rescind. Id. at 2.

Mr. Jackson filed a "Motion to Dismiss Appeal" (the "Motion to Dismiss") on March 7, 2016. ECF 10. He argues that appellant failed to file his brief within 30 days of the docketing of the Designation of Record, as required by Fed.R.Bankr.P. 8018.[3] Id. ¶1. The Motion to Dismiss also states, id. ¶ 2: "Appellant failed to comply with Fed.R.Bankr.P. 8009(b)(5), [4]based its' [sic] failure to order a transcript of all relevant testimony and copies of all relevant exhibits, notwithstanding the fact that its' [sic] appeal was based upon unsupported findings or conclusion."

On March 10, 2016, appellant filed "Appellant's Brief (ECF 11), accompanied by an extract from the record of the bankruptcy proceeding. ECF 11-1. On the same date, appellant filed an "Opposition to Motion to Rescind Order, Dated 2/29/16, Granting Amended Motion to Enlarge Time to File Appellant's Brief." ECF 12. Appellant avers that the Motion to Rescind (ECF 8) contains numerous factual misrepresentations. See ECF 12 ¶¶ 1-23. He maintains that, pursuant to Local Rule 105.9, he was not required to seek Mr. Jackson's consent before filing his Amended Motion (ECF 6). ECF 12 ¶¶ 26-31. In any event, appellant submits that, pursuant to Local Rule 604, [5] the Court may suspend any local rule where "no person is deprived of fairness under the law." ECF 12 ¶ 33; see Id. ¶¶ 32-34.

Also on March 10, 2016, appellant filed an "Opposition to Motion to Dismiss Appeal." ECF 13. He asserts that "the Transcript was Ordered and the Court was informed on or about January 5, 2016." Id. ¶ 5; see ECF 2-2, "Notice of Ordering of Transcript to be Included in the Record on Appeal."

On March 14, 2016, appellee filed a "Reply to Opposition to Motion to Rescind Order, Dated 2/29/16, Granting Amended Motion to Enlarge Time to File Appellant's Brief." ECF 14. And, on March 16, 2016, appellee filed a "Reply to Opposition to Motion to Dismiss Appeal." ECF 15. Mr. Jackson's submissions are not a model of clarity. In relevant part, he reiterates that appellant failed to file a brief within the deadline set forth by Fed.R.Bankr.P. 8018 (ECF 15 ¶ 4) and avers that his Motion to Rescind (ECF 8) should be granted. See ECF 14 ¶ 1. Appellee also accuses appellant of attempting "to bully its' [sic] way to secure its' [sic] extension of time" by threatening appellee with sanctions pursuant to Fed R. Civ. P. 11 and its counterpart Fed.R.Bankr.P. 9011. ECF 14 ¶ 4; see ECF 14-2 at 7-8, Rule 9011/Rule 11 Letter from Williams C. Johnson, Jr., to Clinton Jackson, dated March 9, 2016.

Notably, Mr. Jackson appears to abandon his contention that appellant failed to order a transcript of the relevant underlying bankruptcy proceedings, pursuant Fed.R.Bankr.P. 8009. See ECF 15 at 2. Rather, Mr. Jackson now maintains that appellant failed to provide him with "notice and/or serve a paper copy of the transcript, " in violation of "Fed. R. Bankr. P. 8010 and this Court's Orders. . . ."[6] ECF 15 ¶ 2. He also contends that appellant only provided him with a copy of the Notice of Ordering of the Transcript on March 9, 2016, in violation of Fed.R.Bankr.P. 8009(b)(5). Id. ¶ 3.

When deciding whether to dismiss an appeal as untimely filed, in violation of Fed.R.Bankr.P. 8018, the Court must consider: "(1) whether there has been bad faith or negligence on the part of the appellant; (2) whether appellant had 'notice or an opportunity to explain the delay'; (3) 'whether the delay had any possible prejudicial effect on the other parties'; and (4) the 'impact of the sanction and available alternatives.'" Zewdie v.PNC Bank, N.A., PJM-15-2167, 2016 WL 640804, at *1 (D. Md. Feb. 18, 2016) (quoting In re SPR Corp., 45 F.3d 70, 72 (4th Cir. 1995)); see In re Silver Spring Family Med. Ctr., LLC, TDC-15-1834, 2016 WL 827387, at *3 (D. Md. Mar. 3, 2016) ("When deciding whether to dismiss an appeal for an untimely, non-jurisdictional filing, the court considers whether (1) the ...


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