Efetie v. Mullen ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 IN THE MATTER OF: No. CV-20-02488-PHX- 10 Osemerie Efetie, BK NO. 2:20-bk-07953-PS 11 Debtor. ADV NO. Adv. No. 2:20-ap-00295-PS 12 Osemerie Efetie, 13 Appellant, 14 v. 15 Brian J. Mullen, et al., 16 Appellee. 17 18 At issue is Appellant’s Notice of Appeal (Doc. 1 at 5) and this Court’s Notice of 19 Docketing Bankruptcy Matter (Doc. 2). When pro se Appellant Osemerie Etefie filed the 20 Notice of Appeal, the U.S. Bankruptcy Court notified Appellant of the requirement to file 21 a statement of issues to be presented on appeal and a designation of items to be included in 22 the record on appeal, within 14 days of filing the Notice of Appeal. (Doc. 1 at 2.) 23 Under Bankruptcy Rule 8009(a), an appellant is required to file in the Bankruptcy 24 Court a statement of issues and designation of record within 14 days after filing the Notice 25 of Appeal. The rule is mandatory because the statement of issues and record on appeal are 26 essential to both the appellees, who must respond to the appellant’s brief, and the Court in 27 resolving the appeal. Once the appellant files the statement of issues and designation of 28 1 record, the Bankruptcy Court files a Certificate of Readiness in the District Court, which 2 constitutes the date the appeal is perfected in District Court. 3 Here, Appellant filed the Notice of Appeal on December 28, 2020. (Doc. 1 at 5.) 4 Although Appellant should have filed the statement of issues and designation of record in 5 the Bankruptcy Court by mid-January—over six weeks ago—this Court has received a 6 Notice from the Bankruptcy Court that Appellant has filed neither. (Doc. 6.) Appellant has 7 not sought an extension of time or identified any cause for the substantial delay. 8 Both Bankruptcy Rule 8003(a)(2) and Local Bankruptcy Appeal Rule 8020-1 9 permit the Court to dismiss an appeal for failure to prosecute. Indeed, in its January 4, 2021 10 Order (Doc. 2), this Court warned Appellant that “failure to comply with the provisions of 11 Federal Rules of Bankruptcy Procedure and the Local Rules of Bankruptcy Appeal 12 Procedure may result in the Court taking action for failure to perfect the appeal, including 13 possible dismissal pursuant to Rule 8020-1 of the Local Rules of Bankruptcy Appeal 14 Procedure.” See also In re O’Brien, 312 F.3d 1135, 1137 (9th Cir. 2002) (noting that the 15 Rules “serve a critical function in that they maximize ever more scarce judicial resources,” 16 finding it impermissible for an appellant to ignore the rules “and essentially toss[] this 17 bankruptcy case in our laps, leaving it to us to figure out the relevant facts and law,” and 18 dismissing the appeal). 19 Considering Appellant appears pro se in this matter, the Court will give Appellant 20 one more opportunity to comply with the Rules, which Appellant must do within 10 days 21 of the date of this Order. Failure to timely comply with this Order will result in dismissal 22 of this appeal. 23 IT IS THEREFORE ORDERED that, within 10 days of the date of this Order, 24 Appellant shall (1) file in the Bankruptcy Court a designation of items to be included in the 25 record on appeal and a statement of issues to be presented on appeal (see Doc. 1 at 2); and 26 27 28 1|| (2) file in this Court a Notice of Compliance with this Order. If Appellant fails to timely comply with this Order, the Court will dismiss this appeal for failure to prosecute. 3 Dated this 3rd day of March, 2021. CN 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-