Deitrich v. Wyndham Worldwide Corp. (In Re Equivest St. Thomas, Inc.) , 537 F. App'x 124 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-4039
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In re: Equivest ST. Thomas, Inc., Debtor
JAMES C. DEITRICH,
Appellant
v.
WYNDHAM WORLDWIDE CORP; EQUIVEST ST. THOMAS, INC.
_____________
On Appeal from the United States District Court
of the Virgin Islands
(District Court No. 3-10-cv-00018)
District Judge: Hon. Juan R. Sanchez
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Submitted Under Third Circuit L.A.R. 34.1(a)
April 23, 2013
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BEFORE: McKEE, Chief Judge, SCIRICA and VANASKIE, Circuit Judges
(Filed: October 1, 2013)
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OPINION
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McKEE, Chief Judge
James Deitrich appeals an order of the District Court dismissing his complaint
with prejudice for failure to prosecute. As explained below, we will affirm substantially
for the reasons provided by the District Court.
I.1
Because we write primarily for the parties who are familiar with this case, we need
not recite the factual or essential facts.
The Bankruptcy Court entered an order dismissing, with prejudice, Deitrich’s
adversary proceeding against Wyndham Worldwide Corp. (“Wyndham”) and Equivest
St. Thomas, Inc. (“Equivest”). In a well-reasoned opinion dated September 30, 2011, the
Honorable Juan R. Sanchez, sitting by designation, thoroughly explained why Deitrich’s
appeal from the Bankruptcy Court’s order should be dismissed in a thorough and well
reasoned opinion. Nevertheless, this timely appeal followed.2
1
The District Court had jurisdiction to consider the appeal from the order of the
Bankruptcy Court under 28 U.S.C. § 158(a)(1). We have jurisdiction under 28 U.S.C. §
158(d)(1). Because the District Court below sat as an appellate court, we conduct “the
same review of the Bankruptcy Court’s order as did the District Court.” In re Nortel
Networks, Inc., 669 F.3d 128, 136-37 n.8 (3d Cir. 2011) (citation omitted). We thus
exercise plenary review over both Courts’ legal conclusions, and evaluate factual findings
for clear error. See id. at 136-37.
2
Deitrich’s brief fails to address the District Court’s opinion and order dismissing his
appeal and instead raises ancillary issues that are without merit. See Brief of Appellant at
4 (“Whether procuring Bankruptcy Court jurisdiction by fraud and trickery of a pro [s]e
litigant would make [the] judgment obtained void? Whether [the] case again[st]
Wyndham Worldwide could have proceeded while the bankruptcy proceeding involving
Equivest St. Thomas continued?”). Therefore, under Fed. R. App. P. 28(a) and L.A.R.
28.1(a), he waives his opportunity to present arguments challenging the District Court’s
decision. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
1
Federal Rule of Bankruptcy Procedure 8001(a)3 permits the dismissal of a
bankruptcy appeal for failure to prosecute or otherwise follow procedures. See In re
Harris, 464 F.3d 263, 269-70 (2d Cir. 2006); In re Richardson Indus. Contractors, Inc.,
189 Fed. App’x. 93, 96 (3d Cir. 2006); In re Olick, 466 B.R. 680, 695 (E.D. Pa. 2011).
The factors we set-forth in Poulis v. State Farm Fire & Casualty Company inform the
court’s inquiry by directing the court to: “(1) the extent of the party’s personal
responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling
orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of
the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.” 747 F.2d 863, 868 (3d Cir. 1984); see also In
re Richardson, 189 Fed. App’x at 96. “[N]ot all of the Poulis factors need be satisfied in
order to dismiss a complaint. Instead, the decision must be made in the context of the
district court’s extended contact with the litigant.” Mindek v. Rigatti, 964 F.2d 1369,
1373 (3d Cir. 1992).
As Judge Sanchez explained, Deitrich was personally responsible for his failure to
prosecute to the extent he was aware that, after his notice of appeal was filed,
approximately 10-months passed before he filed his opening brief. Wyndham and
3
“An appellant’s failure to take any step other than timely filing a notice of appeal does
not affect the validity of the appeal, but is ground only for such action as the district court
or bankruptcy appellate panel deems appropriate, which may include dismissal of the
appeal.” Fed. R. Bankr. P. 8001(a).
2
Equivest were prejudiced because Deitrich’s inaction caused delay, and forced them to
file numerous motions in order to make the case proceed. Deitrich had a history of
dilatoriness because he ignored numerous court-ordered deadlines. His failure to comply
with judicial orders on multiple occasions also showed bad faith. His failure to satisfy
the Bankruptcy Court’s monetary sanction indicated that sanctions aside from dismissal
would have been ineffective. Lastly, although the merits of the case may have been
unclear because of Deitrich’s conduct, or lack thereof, all other factors established that
the dismissal for failure to prosecute was appropriate.
As we have previously explained, district court judges, “confronted with litigants
who flagrantly violate or ignore court orders, often have no appropriate or efficacious
recourse other than dismissal of the complaint with prejudice. The present case
exemplifies the very kind of situation that warrants dismissal.” See Mindek, 964 F.2d at
1373.
II.
Accordingly, we will affirm the District Court’s order granting Wyndham and
Equivest’s motion to dismiss Deitrich’s appeal with prejudice.
3