Lucienne Hunter v. Paul Mansdorf ( 2010 )

FILED
NOT FOR PUBLICATION NOV 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: LUCIENNE HUNTER, Nos. 09-60009
09-60010
Debtor.
BAP Nos. NC-08-1194-PaJuH
LUCIENNE HUNTER and KEVIN NC08-1203-PaJuH
SMITH,
MEMORANDUM *
Appellants,
v.
PAUL MANSDORF, Chapter 7 Trustee,
and UNITED STATES TRUSTEE,
Oakland,
Appellees.
Appeals from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Jury, and Hollowell, Bankruptcy Judges, Presiding
Submitted October 19, 2010 **
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Lucienne Hunter and Kevin Smith appeal pro se from the January 7, 2009
orders of the Bankruptcy Appellate Panel (“BAP”) dismissing their appeals for
failure to prosecute, from the January 9, 2009 BAP order stating that the BAP
would not take action on the latest motion for extension of time to file the opening
brief because the case had been dismissed, and from the February 13, 2009 BAP
order denying the motion for reconsideration of the dismissals. We have
jurisdiction under 28 U.S.C. § 158(d). We review the orders for abuse of
discretion. Morrissey v. Stuteville (In re Morrissey), 349 F.3d 1187, 1190 (9th
Cir. 2003); Nat’l Bank of Long Beach v. Donovan (In re Donovan), 871 F.2d 807,
808 (9th Cir. 1989) (per curiam). We affirm.
The trustee contends that we have jurisdiction over only the February 13,
2009 order because the notice of appeal was not timely with regard to the earlier
orders. However, because the appellants filed a tolling motion, the notice of appeal
was timely as to all the orders. See Fed. R. Bankr. P. 8002; see also Fed. R. Bankr.
P. 9006(a)(1).
Contrary to the appellants’ contentions, the BAP did not abuse its discretion
by issuing the January 7, 2009 and January 9, 2009 orders because the BAP gave
the appellants several extensions and explicit warnings that failure to file the
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opening brief might result in dismissal, and the appellants have not provided a non-
frivolous excuse for their failure to file the brief by the time the BAP issued the
orders. See Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir.
1994) (explaining factors courts must consider before dismissing for failure to
prosecute); see also Greco v. Stubenberg, 859 F.2d 1401, 1404 (9th Cir. 1988)
(explaining that courts ordinarily should consider alternative sanctions as well as
the fault of the person failing to prosecute).
The BAP also did not abuse its discretion by denying the motion for
reconsideration because the appellants failed to show that their delay was due to
excusable neglect. See Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en
banc) (explaining the factors to consider when determining whether there is
“excusable neglect”).
AFFIRMED.
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