United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
a contentious divorce from his former wife, Jennifer
Brandeen, the pro se Appellant David Edward Brandeen
(“Appellant” or “Brandeen”) filed a
voluntary petition for bankruptcy relief under Chapter 7 of
the United States Bankruptcy Code in the United States
Bankruptcy Court for the District of Maryland. Jennifer
Brandeen was the largest creditor in those proceedings,
having filed a priority domestic relations claim in excess of
$218, 000. See Mots. Hrg. Trans., p. 5, ECF No.
3-22. Via Order dated August 4, 2016, United States
Bankruptcy Judge James F. Schneider granted the Chapter 7
Trustee's Motion to Approve Settlement and Compromise
with Jennifer Brandeen and Overruling Debtor's Objection.
Appellant now appeals that August 4, 2016 Order, pursuant to
28 U.S.C. § 158 and Rule 8001 of the Federal Rules of
appeal from the United States Bankruptcy Court, this Court
acts as an appellate court and reviews the Bankruptcy
Court's findings of fact for clear error and conclusions
of law de novo. In re Merry-Go-Round
Enterprises, Inc., 400 F.3d 219, 224 (4th Cir. 2005);
In re Kielisch, 258 F.3d 315, 319 (4th Cir. 2001).
Appellant Brandeen was represented by counsel in the Chapter
7 Bankruptcy proceeding before the United States Bankruptcy
Court for the District of Maryland from which he appeals.
Counsel timely filed the Notice of Appeal in this case on
August 18, 2016 (ECF No. 1) and subsequently filed the
Statement of Issues on Appeal and Designation of Record on
Appeal, in accordance with Rule 8009 of the Federal Rules of
Bankruptcy Procedure, on Brandeen's behalf. The Statement
of Issues on Appeal and Designation of the Record were
docketed in this Court on September 21, 2016 (ECF No. 3).
Accordingly, the deadline for Brandeen to file an Appeal
Brief was Monday, October 24, 2016. See
Fed. R. Bankr. P. 8018(a)(1) (“[A]ppellant must serve
and file a brief within 30 days after the docketing of notice
that the record has been transmitted”).
Motion filed September 6, 2016 (ECF No. 2) counsel petitioned
this Court to withdraw as counsel for Brandeen due to
“irreconcilable differences” and informed the
Appellant of same. In accordance with Local Rule 101.2(a) of
this Court (D. Md. 2016), former counsel repeatedly informed
Brandeen of his obligations in this appeal and his option to
either retain new counsel or notify the Clerk of this Court
of his intention to proceed pro se. Former counsel
served Brandeen with reminder notices on September 26, 2016
and October 11, 2016 that his Appeal Brief was due on October
24, 2016. See Certification of Service, ECF No. 4.
Subsequently, via Order dated October 24, 2016 (ECF No. 5),
this Court granted counsels' Motion to Withdraw as
Counsel for Appellant. Via Letter dated that same day (ECF
No. 6), the Clerk of this Court notified Brandeen that his
case would proceed pro se, unless and until new
counsel entered an appearance on his behalf.
March 17, 2017, nearly five months past the deadline for
Appellant Brandeen to file an Appeal Brief, Appellant had
still not filed a brief, nor had counsel entered an
appearance on Brandeen's behalf. Accordingly, this Court
issued an Order to Show Cause dated that same day (ECF No.
7), pursuant to Local Rule 404.3 of this Court, ordering
Appellant to show cause within thirty days as to why this
Bankruptcy Appeal should not be dismissed. That thirty day
deadline expired on Monday, April 17, 2017. Appellant has
neither submitted a brief in this appeal, nor responded to
this Court's Order to Show Cause.
8018(a)(4) of the Federal Rules of Bankruptcy Procedure
provides that “[i]f an appellant fails to file a brief
on time . . . an appellee may move to dismiss the appeal-or
the district court . . . after notice, may dismiss the appeal
on its own motion.” Fed.R.Bankr.P. 8018(a)(4). Local
Rule 404.3 of this Court (D. Md. 2016) likewise provides that
this Court may “upon its own initiative” dismiss
a Bankruptcy Appeal for “fail[ure] to serve and file a
brief within the time required by Bankruptcy Rule
8018.” The United States Court of Appeals for the
Fourth Circuit in Broadnax v. Santoro (In re
Broadnax), 122 F. App'x 81, 82 (4th Cir. 2005) has
explained the procedure as follows:
The district court . . . has the discretion to dismiss an
appeal if the appellant fails to comply with the procedural
requirements of the bankruptcy rules, including failing to
meet the time limits for filing an appeal brief. To determine
whether to dismiss a bankruptcy appeal for failure to timely
file a brief, the district court must exercise its discretion
under Bankruptcy Rule 8001(a). In re SPR Corp., 45
F.3d 70, 74 (4th Cir. 1995). In applying Rule 8001(a), the
district court must take one of the four steps outlined in
In re Serra Builders, Inc., 970 F.2d 1309 (4th Cir.
1992). Specifically, the 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; or (4) indicate that it considered the impact
of the sanction and available alternatives, ” keeping
in mind that dismissal is a “harsh sanction which the
district court must not impose lightly.” Id.
at 1311. Proper application of the Serra Builders
test requires the court to consider and balance all relevant
factors. SPR Corp., 45 F.3d at 74.
In re Broadnax, 122 F. App'x at 82.
“[A]lthough the Serra Builders test literally
only required the district court to take one of the four
steps, a proper application of its test will normally require
a district court to consider and balance all relevant
factors.” In re Weiss, 111 F.3d 1159, 1173
(4th Cir. 1997) (internal citation and quotation marks
case, all Serra Builders factors weigh in favor of
dismissal. The Fourth Circuit has specifically held in In
re Weiss, 111 F.3d 1159, 1173 (4th Cir. 1997) that bad
faith may be inferred from a bankruptcy appellant's
“overall behavior . . . throughout the procedure,
” including “failure to explain satisfactorily
her nonfiling of a brief after the district court gave her an
opportunity to do so.” As discussed supra,
Appellant Brandeen has received repeated notifications from
his former counsel and from this Court as to the deadline for
filing a brief in this appeal. Additionally, Brandeen has
failed to respond to this Court's Order to Show Cause,
dated March 17, 2017 (ECF No. 7). See In re Ryan,
350 B.R. 632, 635 (D.S.C. 2006) (Dismissing bankruptcy appeal
where appellant “failed to articulate even one reason
that would constitute justification or excuse for the
respect to prejudice to other parties in these proceedings,
this Court observed in Andresen v. Rosen, No.
PJM-05-3164, 2006 WL 4550187, at *3 (D. Md. Sept. 26, 2006)
that the bankruptcy appellant's excessive delay caused
prejudice to the Bankruptcy Trustee “in the disposition
of estate assets.” Appellant Brandeen's failure to
file a brief or respond to this Court's Order to Show
Cause, nearly six months after the deadline for filing his
brief, clearly impedes the Trustee's efforts to settle
Ms. Jennifer Brandeen's claims in the Chapter 7
proceeding. The lack of finality as to Ms. Brandeen's
domestic relations claims has likewise prejudice Ms. Brandeen
herself. See In re Weiss, 111 F.3d at 1173
(“Prejudice suffered by the bankruptcy trustee was also
felt by the creditors she represented.”). Additionally,
as the United States District Court for the District of South
Carolina has recently observed in Bhagani v. Doyle,
No. CA 2:13-53-DCN-BHH, 2013 WL 1205864, at *2 (D.S.C. Mar.
1, 2013), report and recommendation approved, No. 2:13-CV-53
DCN, 2013 WL 1205724 (D.S.C. Mar. 25, 2013), an
“[a]ppellant's failure to follow the procedural
rules . . . burdens the court's docket, unnecessarily
delays resolution of the controversies in this case, and is
prejudicial to the prompt administration of justice.”).
Furthermore, given the excessive delay of the Appellant in
this matter and his failure to respond to this Court's
Order to Show Cause, a less severe sanction, such as
additional correspondence or further extension of the
deadline for filing a brief, would be insufficient. See
Andresen, 2006 WL 4550187 at *3 (“No alternative
sanction can fairly address Andresen's omissions.
Dismissal of his appeal is the most appropriate
sanction.”); see also Bhagani, 2013 WL 1205864
at *2 (“Because Appellant did not respond in any way to
this court's January 29, 2013, order, it appears that he
is abandoning his appeal such that the impact of a dismissal
is likely expected by Appellant.”).
these reasons, Appellant Brandeen's Notice of Appeal (ECF
No. 1) is DISMISSED WITH PREJUDICE for failure to file a
brief, pursuant to Rule 8018 of the Federal Rules of