United States District Court, D. Maryland
SOLITA D. HARRINGTON, Appellant,
SATURN CORPORATION, Appellee.
XINIS UNITED STATES DISTRICT JUDGE
before the Court in this bankruptcy appeal is a “Motion
for Extension of Time to File Appellant Brief” filed by
Appellant Solita D. Harrington who is proceeding pro
se, ECF No. 11, and Appellee's Request for Dismissal
under Local Rule 404.3 and Federal Bankruptcy Rule 8003.
challenges on appeal the Bankruptcy Court's March 8, 2017
order granting Appellee-Debtor Saturn Corporation's
(“Appellee-Debtor”) objection to a proof of
claim. See ECF No. 1-1. The designation of record
for the appeal was docketed on April 7, 2017, providing
Appellant with thirty days to file her brief. See
ECF No. 3. After this Court granted Appellant's motion
for extension of time, see ECF No. 5, Appellant
filed a motion on June 15, 2017 which she styled
“Motion to Resolve the Case Without Filing a Brief,
” in lieu of filing the required brief, see
ECF No. 6. The Court denied this Motion on July 12, 2017, and
directed Appellant to file her brief by August 2, 2017, or
risk dismissal of the appeal. See ECF No. 9. This
deadline has now passed and Appellant has not filed a brief.
Instead, Appellant filed a second Motion for Extension of
Time on August 1, 2017, requesting an additional six months
because Appellant is “still experiencing medical
problems” and requires time to “recover from
medical reasons.” See ECF No. 10. Appellant
has also failed to file a statement of the issues she wishes
to raise on appeal. See Fed. R. Bankr. P.
8009(a)(1). On August 7, 2017, Appellee opposed
Appellant's Motion for an Extension of Time to File and
submitted a Request for Dismissal under Local Rule 404.3 and
Federal Bankruptcy Rule 8003. See ECF No. 11.
Appellant filed a Reply to Appellee's Request on August
22, 2017, including an attachment purporting to support her
Motion for Extension of Time. See ECF No. 12.
Rule 8018(a)(1) requires Appellant to “serve and file a
brief within 30 days after the docketing of notice that the
record has been transmitted or is available
electronically.” Fed.R.Bankr.P. 8018(a)(1). Local Rule
404.3 permits the Court to dismiss an appeal for
“fail[ure] to serve and file a brief within the time
required by Bankruptcy Rule 8018.” See Loc. R.
404.3 (D. Md. 2016). Also, pursuant to Bankruptcy Rule
8003(a)(2), “[a]n appellant's failure 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
the district court . . . to act as it considers appropriate,
including dismissing the appeal.” Fed.R.Bankr.P. 8003
(formerly cited as Rule 8001; Rule 8004); accord
In re Serra Builders, Inc., 970 F.2d 1309, 1311 (4th
Cir. 1992) (“Under the language of [Rule 8003,
formerly] Rule 8001, it is clear that the district court has
within its discretion the power to impose sanctions including
dismissal upon an appellant for not complying with the
procedural requirements of the bankruptcy rules.”).
Court has recognized that “dismissal for failure to
file a brief is a ‘harsh sanction' that should not
be ‘imposed lightly.' ” Andresen v.
Rosen, No. PJM-05-3164, 2006 WL 4550187, at *2 (D. Md.
Sept. 26, 2006) (quoting Serra Builders, 970 F.2d at
1311). In determining whether a Rule 8003 dismissal is
appropriate, a district court must take at least one of the
following steps: “(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 other parties; or (4) indicate
that it considered the impact of the sanction and available
alternatives.” In re SPR Corp., 45 F.3d 70, 72
(4th Cir. 1995) (quoting Serra Builders, 970 F.2d at
1311). “[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
omitted). Where the appellant has failed to file a brief in a
timely manner, dismissal is appropriate only “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.” Local Rule 404.3 (D. Md. 2016).
an appellate brief for the Court's consideration, the
Court cannot adjudicate the appeal, and Appellee-Debtor will
be prejudiced by a lack of notice as to the issues to be
resolved. The prejudice to the Appellee-Debtor is exacerbated
because Appellant's procedural failure is simultaneously
delaying the underlying bankruptcy proceeding. See
Brandeen v. Liebmann, No. BR 15-24248-JS, 2017 WL
1398266, at *2 (D. Md. Apr. 19, 2017) (dismissal warranted
where appellant's failure to file an appellate brief
caused excessive delay in bankruptcy proceeding).
Appellant's failure to comply with the Court's July
12, 2017 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. Motg.
Ass'n, No. RWT 14-CV-0626, 2015 WL 1522942 at *3 (D.
Md. Mar. 31, 2015). Appellant's procedural failures have
also delayed the underlying bankruptcy proceeding and harmed
legitimate creditors in this case. See ECF No. 11 at
6; Brandeen, 2017 WL 1398266, at *2. The Court also
notes that Appellant failed to appear for at least three
depositions in the underlying bankruptcy and state court
cases, and sought at least three additional postponements,
all based on medical issues, emergencies, or other crises.
See ECF No. 1-3; ECF No. 11 at 4.
August 1, 2017 motion, and despite her prior experience in
seeking continuances, Appellant did not provide any
corroborative information such as a doctor's letter or
medical records to support her request for an additional
half-year postponement in filing her brief.
See ECF No. 10. Three weeks later, Appellant
submitted an incomplete form letter from an unknown office
dated August 2, 2017, implying that Appellant has sought
treatment for an undisclosed ailment. See ECF No.
12-1. Appellant's delinquent August 22, 2017 filing is
insufficient to support her Motion. Although the Court
acknowledges the difficulties in appearing pro se
and appreciates the necessity of postponements for medical
problems, Appellant has “consistently disregarded
procedural rules without providing reasonable excuse or
explanation for their neglect.” Tekmen v. John E.
Harms, Jr. & Assocs., Inc., 2011 WL 5061874, at *5
(D. Md. Oct. 25, 2011). The Court has given Appellant ample
opportunity to file a statement of the issues that she wishes
to raise on appeal and a brief, and Appellant has submitted
neither. See ECF. No. 9.
Court's last Order, the Court warned Appellant that
failure to file an appellate brief by August 2, 2017 would
result in dismissal of her appeal pursuant to Bankruptcy Rule
8003(a)(2) and Local Rule 404.3. See ECF No. 9.
Appellant not only failed to file her brief, but also failed
to justify a six-month filing extension; a fatal shortcoming
in light of the serious prejudice that the requested delay
would visit on Appellee. Accordingly, Appellant's Motion
for Extension of Time to File Appellant Brief, ECF No. 10, is