United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
Esther Lewis. proceedings se. has tiled an appeal of
the U.S. Bankruptcy Court's June 9. 2016 order dismissing
her case. terminating the automatic stay imposed pursuant to
11 U.S.C. § 362(a) and imposing a two-year equitable
servitude as to Lewis' interests in real property.
See ECF NO.1: ECF NO.1-1. For the
reasons that follow. Appellant's Appeal is dismissed.
Rule 8018 requires Appellant to "serve and lile a brief
within 30 days after the docketing of notice that the record
has been transmitted or is available eleetronically."
See Fed. R. Bankr. P. 8018(a)(1). The Designation of
Record was docketed on August 9. 2016. ECF .
Nos. 3-6. and on August 10.2016. Appellant was sent a letter
notifying her that she had 30 days to tile her brief. ECF
NO.7. On October 4. 2016. this Court granted Appellant a
30-day extension to file a brief. ECF No. 10. On November 23.
2016. this Court granted Appellant an additional 30 days to
tile a brief. ECF No. 12. For a third time. on January 26.
2017. the Court again granted Appellant an additional 14 days
to tile a brief. ECF No. 14.
February 10.2017, after failing to receive Appellant's
brief for approximately live months, the Court ordered
Appellant to show cause why her appeal should not be
dismissed for failure to comply with Fed.R.Bankr.P.
8018(a)(I). ECF No. 15. Appellant was warned that failure to
respond to the order within seven days would lead to
dismissal of the appeal. To date. the Court has not received any
response to the show cause order.
Rule 404.3 permits the Court to dismiss an appeal for
non-compliance with Bankruptcy Rule 8018 "after giving
the appellant an opportunity to explain the non-compliance
and upon considering whether the non-compliance had
prejudicial effect on the other parties." Sec
Loc. R. 404.3 (D. Md. 2016). Also. Fed.R.Bankr.P. 8003(2)
(formerly cited as Rule 800I(a») provides that
"[a]n appellant's failure to take any step other
than the timely tiling of a notice of appeal docs not affect
the validity of the appeal. but is ground only for the
district court...to act as it considers appropriate,
including dismissing the appeal." In determining whether
to dismiss a bankruptcy appeal for a 8003(2) violation, a
district court must: "(1) make a finding of bad faith or
negligence: (2) give the appellant notice and an opportunity
to explain the delay: (3) consider whether the delay had any
possible prejudicial effect on the other parties: [ami] (4)
indicate that it considered the impact of the sanction and
available alternatives"" In re Harris. 129
F.3d 1259. *2 (4th Cir. 1997) (unpublished) (citing In re
Sarra Builders, Inc.. 970 F.2d 1309. 1311 (4th Cir.
1992): sec a/so In re Weiss. 111 F.3d 1159. 1173
(4th Cir. 1997) (noting all factors should be considered and
the second factor alone is insufficient to dismiss an
failure to serve and tile a brief within the time required by
the Federal Rules of Bankruptcy Procedure is negligent. The
Designation of Record was docketed on August 9. 2016. ECF
Nos. 3-6. and Plaintiff was notified that she had 30 days to
lile her brief. ECF NO.7. The Court subsequently granted
Plaintiff three extensions, providing her with ample time to
comply. ECF Nos. 10. 12. 14. In addition, the Court provided
Appellant with notice that her time had expired and an
opportunity to explain her failure to comply with the filing
deadlines. ECF No. 15. Since then, over two weeks have passed
without any response from Appellant.
Appellant's failure to comply with Bankruptcy Rule 8018
and the Court's Order. "burdens the Court's
docket, unnecessarily delays resolution of the controversies
in this case, and is prejudicial to the prompt administration
of justice." McDaniel v. Fed. Nat. Mortg.
Ass'n. No. RWT 14-CY-06262 2015 WL 1522942. at *3
(D. Md. Mar. 31. 20IS)(discussing failure to follow
procedural rules in a bankruptcy appeal). The Court also
takes judicial notice of the fact that Appellant has filed
five bankruptcy cases since 2008 and the instant
case was filed "only months after a prior Chapter II
[ease] was dismissed for failure to lile a plan and
disclosure statement." See In re Lewis. No.
15.17249-DWK (Bank.. D. Md. 2016.. B. Dkt. at
Appellant's delay also prejudices her creditors by
depriving them of the opportunity to take advantage of the
Bankruptcy Court's decision to lift the automatic stay
and impose a two-year equitable servitude as to Lewis'
interests in real property. ECF No. 1.
the Court recognizes that dismissal of a bankruptcy appeal
for a procedural error is a harsh remedy that should not be
imposed lightly, see In re Serra Builders. 970 F.2d
at 1311. anything less would be futile given that Appellant
has failed to pursue this appeal in a timely manner. See
Tekme1 v. John E. Harms. Jr. & Assocs., Inc., 2011
WL 5061874 at *5 (D. Md. Oct. 25, 2011)("... this Court
finds that dismissal is nonetheless appropriate where
Appellants consistently disregarded procedural rules without
providing reasonable excuse or explanation for their
Appellant's Appeal, ECF No. 1, is hereby dismissed. A
separate Order follows.
Because Appellant is pro se this order.
and all other orders in this case, was mailed to her address