Nicole v. T2M Investments, LLC ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SYLVIA NICOLE, ) Case No.: 1:24-cv-00562 - JLT ) 12 Appellant, ) ORDER TO SHOW CAUSE FOR FAILURE TO ) PROSECUTE/DESIGNATE RECORD ON 13 v. ) APPEAL ) 14 T2M INVESTMENTS, LLC, ) ) 21 Day Deadline 15 Appellee. ) ) 16 ) ) 17 ) 18 Pending before the Court is pro se Appellant Sylvia Nicole’s Notice of Appeal from the United 19 States Bankruptcy Court for Eastern District of California, Case No. 21-10679-Adversary Case No. 20 21-01015-A. Since filing Notice, Appellant has failed to designate the record on appeal pursuant to 21 Federal Rule of Bankruptcy Procedure 8006. Appellant now risks dismissal for failure to prosecute 22 the appeal and failure to comply with the Court Order (Doc. 10). Accordingly, the Court ORDERS 23 Appellant to show cause as to why the pending appeal should not be dismissed. 24 PROCEDURAL HISTORY 25 On May 10, 2024, Appellant filed a Notice of Bankruptcy Appeal (Doc. 1), and the appeal was 26 assigned to this Court on May 13, 2024 (Doc. 2). On June 13, 2024, the Bankruptcy Deputy Clerk 27 issued Notice of Incomplete or Delayed Record (Doc. 4) informing Appellant “the record for purposes 28 of is appeal incomplete” and the following items had not been filed: Designation of Record, Statement 1 of Issues, Reporter’s Transcript; and Notice Regarding the Transcript.1 (Id.) 2 Before filing Notice of Appeal, Appellant filed a “motion for appointment of counsel and a 3 motion for extension of time to file the opening brief”2 with the United States Bankruptcy Appellate 4 Panel of the Ninth Circuit. The BAP issued an Order Transferring Motion to Appoint Counsel to 5 District Court for Determination (Doc. 7), stating “[O]ur authority to appoint counsel under 28 U.S.C. 6 § 1915(e) is doubtful. If the Panel had clear authority to appoint counsel, we would not appoint 7 counsel. Appellant has not demonstrated that this appeal presents exceptional circumstances as 8 required under Ninth Circuit authority.” (Doc. 7 at 1.) In addition, BAP ordered Appellant to file a 9 status report indicating the steps the District Court had taken in determining the motion by June 20, 10 2024. On June 17, 2024, this Court issued an Order denying Appellant’s Motion to Appoint Counsel 11 (Doc. 5) for reasons expressed by the BAP, “Ms. Nicole has made no showing as to the merits of her 12 case or why she is unable to articulate her claims pro se. To the contrary, the ‘statement of issues’ 13 attached to the request for counsel, which is 23 items long, is clearly articulated and detailed.” (Id. at 2 14 (citing Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).) Appellant then filed an Application to 15 Waive Fees and for Appointment of Counsel (Doc. 6), a second Motion to Appoint Counsel (Doc. 7), 16 and a Motion to Proceed In Forma Paupers (Doc. 8).3 The Court’s Order (Doc. 5) was returned as 17 undeliverable on June 26, 2024. (See Docket.) 18 On July 12, 2024, Appellant filed a Motion for Extension of Time to File Designation Record 19 on Appeal requesting an extension of ten (10) days due to “health an attorney’s issues.” (Doc. 9 at 1.) 20 The Court issued an Order (Doc. 10), on August 2, 2024, denying Appellant’s renewed Motions to 21 Appoint Counsel (Docs. 6,7), granting Motion to Proceed IFP, and granting Request for Extension of 22 Time to Submit Appellate Record. (Doc. 10.) The Court designated August 30, 2024, as the new 23 deadline for the Bankruptcy Certificate of Record. (Id. at 3.) Again, the Court’s Order was returned 24 as undeliverable. (See Docket.) Appellant finally filed a Notice of Change of Address on August 22, 25 2024, and the Court re-serviced the August Order (Doc. 10). Appellant remains silent and has not 26 27 1 Appellant was also informed the Filing Fee had not been paid. 2 According to the United States Bankruptcy Appellate Panel of the Ninth Circuit’s Order, Appellant filed its motion on 28 April 22, 2024. 3 1 designated a record for appeal. 2 Federal Rule of Bankruptcy Procedure 8006 requires an appellant, within ten days of filing the 3 notice of appeal from an adverse decision by the United States Bankruptcy Court, to file with the 4 bankruptcy court clerk and serve on the appellee “a designation of the items to be included in the 5 record on appeal and a statement of the issues to be presented . . ..” Compiling the record is 6 “mandatory, not optional.” In re Goetz, No. C-07-06364RMW, 2008 WL 3068954, *1 (N.D. Cal. 7 2008) (quoting In re McCarthy, 230 B.R. 414, 417 (9th Cir. BAP 1999)). A failure to comply with 8 Bankruptcy Rule 8006 and prosecute the appeal subjects the appellant to dismissal and “such action as 9 the district or bankruptcy court deems appropriate.” Fed. R. Bankr. P. 8001; see also In re Gelso 10 Investments V, LLC, No. C 03-0312 SI, 2003 WL 22282346, at *2 (N.D. Cal. 2003), aff’d, 127 Fed. 11 App’x 916 (9th Cir. 2005). The District Court may dismiss an appeal for lack of prosecution to 12 prevent undue delays and docket congestion. In re Gelso, 2033 WL 22282346, at *2. “Failure to 13 compile and transmit the record prevents the appellate court from exercising its function” and justifies 14 dismissal of the appeal. In re Goetz, 2008 WL 3068954, at *1 (citing Syncom Capital Corp. v. Wade, 15 924 F.2d 167, 169 (9th Cir. 1991)). Nevertheless, the Court understands a procedural violation of 16 Bankruptcy Rules, without more, is an insufficient basis for dismissal. See In re Gelso, 2003 WL 17 22282346, at *2 (citing In re Fitzsimmons, 920 F.2d 1468, 1472 (9th Cir. 1989)). According to well- 18 established rules and precedent, Appellant is ORDERED to show cause why the appeal should not be 19 dismissed. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 Despite the Court’s Order (Doc. 10) and granting the requested extension for time to file the 3 || appeal record, Appellant Sylvia Nicole has not designated a record for appeal. Therefore, the Court 4 || ORDERS: 5 1. Within 21 days, Appellant SHALL show cause in writing why the pending bankruptcy 6 appeal should not be dismissed due to her failure to prosecute this action as ordered by the 7 Court and as required by the Federal Rules of Bankruptcy Procedure. 8 || Appellant is warned that failure to timely respond to this Order to Show Cause may result in dismissa 9 || of this appeal without further notice. 10 11 ||IT IS SO ORDERED. Dated: _ October 2, 2024 Charis [Tourn 13 TED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28